Wilbard Lemunge vs Father Komu and Another (Civil Appeal No. 8 of 2016) [2019] TZCA 717 (9 October 2019)

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IN THE COURT OF APPEAL OF TANZANIA 
ATARUSHA 
(CORAM: MMILLA. J.A.. MWANGESI. J.A.. And KWARIKO. J.A.) 
CIVIL APPEAL NO. 8 OF 2016 
WILBARD LEMUNGE ..................................................... APPELLANT 
VERSUS 
1. FATHER KOMU } 
2. THE REGISTERED TRUSTEES OF ..................... RESPONDENTS 
THE DIOCESE OF MOSHI 
(Appeal from the judgment and decree of the High Court of Tanzania 
at Moshi) 
2 
nd 
& 10 
th 
October, 2018 
MWANGESI. J.A.: 
{Mugasha. J.l 
dated the 8 
th 
day of March, 2012 
in 
Civil Appeal No. 6 of 2012 
JUDGMENT OF THE COURT 
The appellant herein was charged at the District Court of Rambo 
in Kilimanjaro Region in Criminal Case No. 212 of 2004, with the 
offence of receiving stolen property contrary to the provisions of 
section 311 (1) of the Penal Code CAP 16 R.E. 2002. It was alleged by 
the prosecution that, on the 26 
th 
day of April, 2004 at about 05: 30 
hours at Ibukoni Village within Rambo District in Kilimanjaro Region, 
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he did receive three bags of maize valued at TZs 81,000/=, knowing 
that they were stolen, which was the property of Huruma Catholic 
Church. 
In a judgment that was handed down by the trial magistrate on 
the 12 
th 
day of April, 2005, following a full trial, the appellant· was 
acquitted from the charged offence and set at liberty for the reason 
that, the evidence which was led against him by the prosecution to 
establish the commission of the offence was weak. Subsequent to his 
acquittal from the criminal charges, the appellant successfully 
instituted civil proceedings in the same court, vide Civil Case No. 3 of 
2005 against the respondents herein, for general damages arising from 
malicious prosecution. It was held by the learned trial magistrate in a 
judgment that was delivered on the 2Jth June, 2012 that, the appellant 
had managed to establish his claim on balance of probabilities. As a 
result, he was awarded damages to the tune of TZs 7,000,000/=, out 
of the TZs 10,000,000/= which he had claimed. 
The basis of the decision of the trial magistrate was founded on 
the fact that, since the appellant was acquitted from the criminal 
charges, and that the respondents did not appeal against such 
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acquittal, then the same established that the respondents had 
maliciously instituted the proceedings against the appellant. 
It is pertinent however, to point out beforehand that, in the 
criminal proceedings, the appellant was charged alongside two other 
people going by the names of Franci~ Tarimo and Fraterne Vicent Mtei, 
who were charged with the offence of housebreaking and stealing. The 
said two persons, were the ones alleged to have broken into the first 
respondent's premises and stolen from therein three bags, which 
according to their version, were sold to the appellant. They were 
convicted of the charged offence in absentia, after they had jumped 
bail before the hearing of the case. 
Dissatisfied by the decision of the trial court in the Civil 
proceedings, the respondents successfully challenged it in the High 
Court of Tanzania at Moshi, through Civil Appeal No. 6 of 2012 of 
which, in a judgment that was delivered by the first appellate Judge on 
the 8 
th 
March, 2013, reversed the finding of the trial court. The said 
decision is the subject of this appeal to the Court. The grounds of 
appeal by the appellant are premised on three grievances namely: 
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1. That the High Court, erred both in law and facts by not 
considering evidence adduced by the applicant to prove 
his claims of malicious prosecution. 
2. That the High Court, failed to analyze appellant's 
evidence and eventually came up with erroneous 
decision, that the appellant failed to establish the case 
against the respondents. 
3. That the High Court, erred both in law and facts by not 
considering the facts that, the respondents lodged false 
complaints against the appellant to the Police Station. 
In compliance with the stipulation under the provisions of Rule 106 (1) 
of the Court of Appeal Rules, 2009 (the Rules), on the 6 
th 
day of January, 
2017, the appellant lodged his written submission in support of the appeal. 
On the part of the respondents, there was no written submission filed in 
opposition to the appeal in terms of the provisions of Rule 106 (8) of the 
Rules. 
On the date when the appeal was called on for hearing before us, the 
appellant entered appearance in person, legally unrepresented and hence, 
fended for himself whereas, the respondents enjoyed the services of Mr. 
Deodatus Nyoni, learned counsel. At the outset, the learned counsel for the 
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respondents, rose to inform the Court that, after the respondents had failed 
to lodge their written submission in terms of Rule 106 (8) of the Rules, in 
opposition to the appeal within the prescribed period, they lodged an 
application, seeking for extension of time within which to file their written 
submission, vide Civil Application No. 7 of 2017, which was filed on the 13 
th 
day of July, 2017. However, the same was yet to be determined. In the 
circumstance, he sought the indulgence of the Court, to permit him to 
respond to the grounds of appeal by the appellant orally. The prayer was 
premised under the provisions of Rule 106 (19) of the Rules. 
The prayer by Mr. Nyoni, was not objected by the appellant for the 
obvious reason that, he was a lay man, who could not have anything 
substantial to chip in, on a matter which was founded on a legal technicality. 
On our part, we were faced with two options; first; either to proceed with 
the hearing of the appeal ex parte, in terms of the provisions of Rule 106 
(10) of the Rules, which however, would not be fair to the respondents, in 
view of the fact that, they had already lodged their application for extension 
of time since July, 2017. Or, two; we had to adjourn the hearing of the 
appeal, to await the outcome of the respondents' application for extension of 
time. 
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After giving a deep thought to the situation, we were of the settled 
mind that, the circumstances pertaining to this appeal, squarely fell within 
the purview envisaged under the provisions of Rule 106 (19) of the Rules, 
which stipulate that: 
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The Court may, where it considers the circumstances of 
an appeal or application to be exceptional, or that the 
hearing of an appeal must be accelerated in the interest 
of justice, waive compliance with the provisions of this 
Rule in so far as they relate to the preparation and filing 
of written submissions, either wholly or in part or reduce 
the time limits specified in this Rule to such extent as the 
Court may deem reasonable in the circumstance of the 
case.'~ 
In that regard, we granted the prayer by Mr. Nyoni, to resist the 
appeal for the respondents orally. For that matter, we invited the appellant 
to address us on his grounds of appeal. 
After taking the floor, the appellant requested us to adopt his written 
submission which he had earlier on lodged as pointed above, with nothing 
more to add in the submission in chief. 
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What could be gleaned from the written submission of the appellant is 
that, all the three grounds of appeal were argued together due to the fact 
that, they all hinged on the issue of evaluation of the evidence, which was 
relied upon by the appellant, during trial of the suit. Generally, the appellant 
argued in his written submission that, there was ample evidence, which was 
led by the appellant to establish that, the first respondent was moved by 
malice, to report him to the police that he had received stolen bags of maize 
and thereby, leading to his being arrested and prosecuted. 
Placing reliance on the decision of the High Court in Jeremiah 
Kamama Vs Bugomola Mayandi [1983] TLR 123, the appellant submitted 
that the first appellate Judge, erred to reverse the finding of the trial court 
because, the four ingredients named in the case of Jeremiah Kamana 
(supra), were established, that is; one, the appellant was prosecuted; two, 
the proceedings ended in his favour; three, the first respondent instituted 
the proceedings against the appellant without reasonable and probable 
cause; and four, the appellant suffered damages as a result. He thus invited 
us to find merit in his appeal, and that we be pleased to reverse the finding 
of the first appellate Judge, and in lieu thereof, uphold the finding of the trial 
magistrate with costs. 
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In rebuttal, the learned counsel for the respondents firmly argued in 
support of the decision of the first appellate Judge, asserting that the appeal 
by the appellant, was misconceived. He strongly persuaded us to agree with 
the finding of the first appellate Judge, because it was very elaborative as to 
why, the claim by the appellant was unfounded. Mr. Nyoni referred us to 
page 101 of the record of appeal, where the first appellate Judge, gave 
reasons as to why she was of the firm view that the circumstances that led 
to the arrest and prosecution of the appellant, was not moved by evil mind 
of the first respondent. 
In his efforts to persuade us to join hands with the views of the first 
appellate Judge, the learned counsel referred us to the writings of Indian 
Authors, in a book titled The Law of Torts by Ratantal and Dhirajlal 
24 
th 
Edition 2002, at page 317, where the meaning of reasonable and 
probable cause has been expounded in detail as contained in the holding of 
the High Court of Tanzania, in Amina Mpimbi Vs Ramadhani Kiwe 
[1990] TLR 6. Even though the said decision was of the High Court, he 
persuaded us to find it to be good law and apply it. 
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The learned counsel further challenged the submission of the appellant 
wherein, he submitted that, since the appellant was acquitted in the criminal 
proceeding, then, that was sufficient proof to establish that he was 
maliciously prosecuted and hence, entitled to damages as held by the trial 
court. He argued that, an acquittal in criminal proceedings, cannot be a 
basis to institute civil proceedings for malicious prosecution. To back up his 
argument, reference was again made to The Law of Torts by Ratantal 
and Dhirajlal (supra) at page 319, where the authors have argued that, 
the dismissal of criminal prosecution or acquittal of an accused, does not 
create any presumption of absence of reasonable and probable cause. This 
is indeed what the Court said in Edward Celestine and others Vs 
Deogratias Paulo [1982] TLR 347. 
On the basis of what has been highlighted above, the learned counsel 
invited us to sustain the arguments which have been made on behalf of the 
respondents, and as such, we be pleased to dismiss the appeal by the 
appellant for want of merit. He further implored us to condemn the appellant 
to bear the costs of this appeal. 
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The appellant had nothing in rejoinder. He only reiterated what is 
contained in the submission in-chief that, there was strong evidence to 
establish his claim as held by the trial court. He therefore urged us to allow 
his appeal, so as to let him get paid what was ordered by the trial court. He 
also asked for costs of this appeal. 
The thrust on us in the light of the submissions from either side above, 
is whether or not, there was sufficient evidence in the decision that was 
reversed by the first appellate Judge, to establish the claim for malicious 
prosecution against the first respondent. As it was held by this Court in Paul 
Valentine Mtui and Another Vs Bonite Bottlers Limited, Civil Appeal 
No. 109 of 2014 (unreported), where its previous decision in Yonnah 
Ngassa vs Makoye Ngassa [2006] TLR 2006, was referred, for the claim 
of damages arising from malicious prosecution to stand, there must exist 
cumulatively five elements namely, one, that the plaintiff must have been 
prosecuted; two, the prosecution must have ended in the favour of the 
plaintiff; three, the defendant must have instituted the proceedings against 
the plaintiff without reasonable and probable cause; four, the defendant 
must have instituted the proceedings against the plaintiff maliciously; and 
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five; the plaintiff must have suffered damages as a result of the 
prosecution. 
The bone of contention before the first appellate Court, which is also 
the case before this Court, is whether or not, the above named elements 
existed in the suit by the appellant. We are going to examine the existence 
of each element from the available evidence as contained in the trial court's 
record. 
To start with, it is common knowledge that, the appellant was 
prosecuted vide criminal case No. 212 of 2004, for allegedly receiving 
property which had been stolen from the premises of the first respondent. 
There was also no dispute to the fact that, the said criminal proceedings, 
terminated in favour of the appellant. We also have no reason, to doubt the 
contention by the appellant that, as a result of the criminal proceeding which 
was preferred against him, he suffered some damages. In that regard, the 
first, second and fifth elements named above, did exist in the appellant's 
suit. 
Our next examination is in regard to the third element that is, as to 
whether or not, the defendant instituted the criminal proceedings against 
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• 
the appellant without reasonable and probable cause. We are strongly 
persuaded by the writings of the learned authors Ratantal and Dhirajlal 
in the Law of Torts (supra) at page 317, which we adopt that, the defence 
of reasonable and probable cause, can be availed by an accuser 
(defendant), upon establishment of four factors namely: 
One; an honest belief of the accuser in the guilt of the 
accused (plaintiff); 
Two; Such belief must be based on an honest conviction 
of the existence of circumstances which led the accuser to 
that conclusion; 
Three; the belief as to the existence of the circumstance 
by the accuser, must be based upon reasonable grounds 
that, such grounds would lead to any fairly cautious 
person in the accuser's situation to believe so. 
Four; the circumstance so believed and relied on by the 
accuser, must be such as to amount to a reasonable 
ground for belief in the guilt of the accused person. 
As earlier pointed out above, the first respondent herein, was a victim 
of theft of his bags of maize, which moved him to report the incident to the 
village executive officer. In turn, the village executive officer, reported the 
incident to the police. There was also ample evidence on record to establish 
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• 
that, the prior investigation that was made by the police, led to the arrest of 
Francis Tarimo and Fraterne Vicent Mtei, both of whom admitted to have 
been behind the theft, and named the appellant to be the one, to whom 
they sold the stolen bags of maize. 
We are alive as to who becomes a prosecutor, when the issue of 
malicious prosecution comes in as it was held in Jeremiah Kamana's case 
(supra) that, is a person who takes steps with a view of setting in motion 
legal processes for the eventual prosecution of the plaintiff. While the first 
respondent was indeed the one who set in motion the machinery of law 
enforcement leading to the arrest and prosecution of the appellant, we note 
from the scenario indicated above that, the act which was done by the first 
respondent, would have been done by any other ordinary person in the 
ordinary course of life. In that regard, we hold that the first respondent had 
all the reasons to do what he did. There was no way in which under the 
circumstances, it could be said that, in doing what he did, the first 
respondent had no reasonable and probable cause. To that end we hold 
that, the third element did not exist in the appellant's suit. 
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" 
In regard to the existence of the fifth element that is, as to whether or 
not there was malice, we are aware that, the malice referred to in malicious 
prosecution that, is not malice in the legal sense, that is, such as may be 
assumed from a wrongful act done intentionally. To the contrary, it is malu 
animus meaning, being actuated by ill spite or ill-will. What we had to ask 
ourselves, is as to whether in reporting the incident leading to the arrest and 
prosecution of the appellant, the first respondent was actuated by a genuine 
desire to bring to justice the appellant. Our answer is in the negative for the 
reasons which we are going to give hereunder: 
First, at the time when the first respondent was reporting his stolen 
bags of maize to the village executive officer, he was not in the position to 
know if the appellant would be among the suspects. This is so from the fact 
that, the appellant was brought into the incident arising from the stolen bags 
of maize, by Francis Tarimo and Fraterne Vicent Mtei, who named him. 
Second; there was no any testimony by the appellant to suggest as to how 
the first respondent was actuated by ill-will or motive, to involve the 
appellant in the incident of the stolen bags of maize. 
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In view of the foregoing account, we hold that, the third and fourth 
elements required in establishing the prosecution for malicious prosecution, 
were not met. And the fact that, the prosecution would only stand if all 
elements had cumulatively been established, we are of the settled mind 
that, the learned first appellate Judge, was correct and justified to reverse 
the decision of the trial court, which had awarded damages to the appellant 
against the respondents. We uphold the decision of the first appellate Court, 
the consequence of which, is to dismiss the appeal with costs. 
Order accordingly. 
DATED at ARUSHA this 9 
th 
day of October, 2018. 
B. M. MMILLA 
JUSTICE OF APPEAL 
S. S. MWANGESI 
JUSTICE OF APPEAL 
M. A. KWARIKO 
JUSTICE OF APPEAL 
I certify that this is a true copy of the original. 
B.A~PO 
DEPUTY REGISTRAR 
COURT OF APPEAL 
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