Jambo Foods Products Co. Limited vs Hassan Hussein Musa and Another (Civil Appeal No. 454 of 2022) [2024] TZCA 1116 (15 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: NDIKA. J.A.. GALEBA, J.A. And MGEYEKWA, J.A.^ CIVIL APPEAL NO. 454 OF 2022 JAMBO FOODS PRODUCTS CO. LIMITED ........ ............................ APPELLANT VERSUS HASSAN HUSSEIN MUSA........ ................................ .............1 st RESPONDENT HUSSEIN ABDALLAH MUSA........................ .......................... 2N D RESPONDENT [Appeal from the Decision of the High Court of Tanzania Dar es Salaam Sub Registry, at Dar es salaam] (Mgonya, JQ dated the 11th day of March, 2022 in Civil Case No. 84 of 2020 JUDGMENT OF THE COURT 25th October & 15th November, 2024 GALEBA. J.A.: The appellant in this appeal, is a manufacturer and distributor of soft drinks and food products, the business she conducts from Shinyanga Town. The first respondent is the son of the second respondent, and they are both residents of Chang'ombe Toroii in Dar es Salaam Tanzania. The brief facts of the dispute between the two parties in the caption above is that, on 25th August, 2019, a person called Nassor Jabir (not a party

to this appeal) driving a motor truck make Mitsubishi Fuso with registration No. T. 862 APC, went to the appellant's factory at Shinyanga and presented a bank pay in slip indicating that he had credited the appellant's account at the NMB Bank Geita Branch, with TZS. 18,500,061.00. He was therefore permitted to load and take away juice products worthy that amount. Later on, upon crosschecking with NMB Bank Geita Branch, the appellant found out that the pay in slip which had been presented to her as evidence of payment for the goods sold, was a sheer forgery, since there was no such credit on her account. Thereafter, Anthony Paul (DW1) the appellant's marketing manager, went to Shinyanga Police Station and reported the above theft. The twist of events took place eight months down the lane, particularly on 9th April, 2020. On that day, certain police officers from Dar es Salaam Central Police including one of them called Dotto, went to the respondents' residencies and searched their premises, arrested them and kept them under restraint of the police custody for three days. After those days, the respondents were conveyed to Shinyanga under high alert police escort. They were also required to transport the first respondent's motor trailer with registration No. T 862 ACC from Dar es Salaam to Shinyanga. After two weeks of their arrest, DW1 (who had reported the theft), was called at

the police station in Shinyanga to identify the suspects and the motor truck. Upon being shown the respondents, and the motor trailer, the witness at once informed the police that none of the suspects shown to him was Nassor Jabir and even the motor trailer shown to him, was not Mitsubishi Fuso with registration No. T. 862 APC which he had reported to them earlier on. At this point, on noting that they were holding wrong suspects, the police immediately released the respondents from custody without any charge being preferred against them. Consequent to their release, the respondents lodged Civil Case No. 84 of 2020, against the appellant pleading that the latter, maliciously and in bad faith caused their illegal arrest, false imprisonment and police investigations which were uncalled for. The main relief sought was payment of TZS. 500,000,000.00 as general damages for the above wrongs. The appellant denied the claim stating that her report to the police involved Nassor Jabir and his motor truck make Mitsubishi Fuso with registration No. T. 862 APC, and not the respondents or even their motor trailer with registration No. T. 862 ACC. The matter was heard and the trial court was largely in agreement with the respondents. It granted them TZS. 250,000,000.00 in general damages for "unlawful arrest, torture and wrongful confinem ent” m\\ costs.

That decision of the trial court, is what is contested before us by way of this appeal. Initially, the appeal was based on four grounds, but as it will become evident, determination of this appeal will most likely be based on the following three grounds of appeal which may be paraphrased as follows: "i. That the tria l Judge erred in law by entering judgm ent for the respondents without any proof o f any ingredients o f the tort o f false imprisonment. 2, That the tria l Judge erred in law by awarding damages to the respondents while there was no p roof that they suffered any damage. 3. That the tria l Judge erred in law and in fact by failing to properly analyse evidence which failure led to an erroneous conclusion and consequent judgm ent" At the hearing of the appeal, Mr, Samson Edward Mbamba learned advocate who was appearing for the appellant along with Mr. Raymond Jimmy Uiso, also learned advocate, prayed to abandon the first ground of appeal, thereby leaving on record, only the above three grounds. The learned advocate had nothing to add to his written submissions, save for minor clarifications he made at our invitation. For the respondents, was Mr.

Alex Mashamba Balomi, learned advocate, like his counterpart, highlighted a few points upon our probing for clarifications on his written submissions, without adding any substantive oral submissions. We have taken into consideration relevant submissions of both learned advocates and in resolving this appeal, we will start with the third ground above, because, it raises a crucial complaint which could have an overriding effect to the whole appeal in terms of disposition. That is so because, before the trial High Court, one of the significant issues, was whether the appellant, maliciously reported to the police which report led to the respondents' arrest and consequent confinement. An honest answer to that issue, depended on a proper analysis of the evidence adduced, which aspect the appellant is up against in the third ground. To address this ground, we will invoke the provisions of rule 36 (1) (a) of the Tanzania Court of Appeal Rules 2009, and appraise the evidence that was tendered at the trial on the above aspect. Briefly, the issue for our attention therefore is whether, the appellant's reporting of the theft at her factory was targeting the respondents7 arrest and their ultimate restraint. A keen examination of the impugned judgment, reveals that what made the trial court to believe and hold that the appellant or his workers

participated in restraining and incarcerating the respondents, appears to be the evidence of Hussein Abdallah Musa (PW1) who at pages 44 and 45 of the record of appeal stated that: "Jambo employees are the ones who came to my house. Dotto [a police officer] is the one from Central Police who came with Jambo employees whom if [shown to m e] I can recognize them. Dotto was [an] investigator o f the case in Dar es Salaam... I n e ve r m e t Jam bo em ployees alo n e - They w ere in com pany o f [th e ] p o lic e [o ffic e rs]. I b e lie v e d th e p o lic e [o ffic e r]f th a t th ose w ere Jam bo em ployees, a s he in tro d u ce d them to m e." [Emphasis added] From the above, the learned trial Judge reasoned, and concluded at pages 143, 144 and 146 of the record of appeal that: "Out o f this fact, I had to refer to the testim ony o f PW1 who is said to have been introduced to tw o em ployees fro m th e d efe n d an t com pany w ho w as in com pany o f tw o p o lic e o ffic e rs w ho w en t to a rre s t him at his home at Chang'ombe Toroli Rwegasore Street House No. 14...From the above , I have asked myself, if tw o o u t o f fo u r p e o p le w ho w en t to a rre st PW 1 cam e from th e d efe n d an t com pany, they should have taken

seriously the registration number o f the trailer which belongs to the p la in tiff and compare with the one which is said to have been seen a t their factory. However, they denied to have taken P W l's statem ents seriously and ignored the same, which led into a serious confusion o f m ixing [up] the registration numbers which [resulted into] a m istake o f fact which led to the instant controversy. Consequentlythe second issue as to whether or not th e d efe n d an t m a licio u sly re p o rte d to th e p o lic e a n d cau sed th e p la in tiffs [m a licio u s] a rre st \ is answered positively." [Emphasis added] In our view, the above reasoning of the trial court formed the basis upon which it relied to hold the appellant liable for having committed the tort of false imprisonment of the respondents. Whether in so holding, the trial court was justified or not, a discussion in that respect, constitutes the epicentre of this judgment. Throughout common law jurisdictions, ours inclusive, in civil matters like the one at hand, the burden of proof of any fact lies on a party who alleges existence of the fact. As for the laws of Tanzania, this is in terms of section 110 (1) and (2) of the Evidence Act. Another requirement is that the burden of doing so must be discharged such that a certain standard is

attained. That standard of proof in civil matters, is on the balance of probability, also called proof on the preponderance of probability, This standard which is provided for under section 3 (2) (b) of the Evidence Act, is attained by the plaintiff, where the court, after taking into consideration of the plaintiff's evidence, believes that the fact alleged did, indeed exist, or that its existence is so probable that a prudent man would act on a supposition that the fact actually, existed. See the case of Ernest Sebastian Mbele v. Sebastian Sebastian Mbele and Others [2021] TZCA 168, on that aspect. At this point, and before getting to a discussion on whether the respondents discharged the burden of proof to the above standard, that the appellant committed the tort of false imprisonment on their liberty, we think that it is logical, in a paragraph or two, to highlight what this tort entails. In the shortest of the terms, the tort of false imprisonment or wrongful confinement, is said to be duly proved in a civil case, if the plaintiff adduces evidence on the balance of probability demonstrating existence of two ingredients, see the Law of Torts, Including Consumer Protection, by Arun Kumar, Third Edition, Universal Law Printing, page 72. The first ingredient is total restraint or confinement of the plaintiff by the defendant,

thereby denying him liberty. This ingredient could also be described as "the unlawful im position o f restraint on another's freedom o f movement" see The Principles of Tort Law by Vivienne Harpwood, Fourth Edition, Cavendish Publishing Limited, London and Sydney, page 295. For this ingredient to be proved, the restraint must be total without any reasonable means or possibility of escape from the restraint or confinement. That means that partial restraint leaves this ingredient incomplete, and the defendant may not be held liable in law. In false imprisonment, the period spent under restraint is immaterial. It is not a defence to state that the confinement was only brief, and even knowledge that one is illegally confined is irrelevant on the part of the victim or the plaintiff. The second ingredient of the tort, is that the restraint or the confinement by the defendant must have been without lawful justification or without any court order, see Kasana Produce Store v. Kato [1973] 1 EA 190 and G4s Security Services (Kenya) Limited v. Domitila Katila and Attorney General [2017] KEHC 1468 (KLR). Notable too, is the fact that a person who makes a false report that leads to an unlawful confinement of the plaintiff may be liable even if the physical act of restraining the plaintiff was performed by someone else. We will address this point in due course, but for now, we will get our full focus

on the issue whether, the alleged civil wrong was proved against the appellant, to the above highlighted standard, and to do so, we will discuss two scenarios deduced from the respondents' case. The third scenario, which is from the evidence of the appellant's side, will be complementary. The first scenario, is that the identity of the two employees of the appellant alleged to have been present at the respondents' arrest was not proved to any standard. In the above quoted potion of PWl's evidence, he testified that the employees were introduced to him by a police officer called Dotto, In our view, Dotto, who presumably better knew the alleged employees, was supposed to be called and testify in order to tell the trial court as to who the employees, actually were. We are of the firm position that, the omission during the trial, to call the person who knew the alleged employees of the appellant, was fatal to the respondents' case. Thus, PWl's evidence that at his arrest there were employees of the appellant without their clear identity, is as evidentially weightless, as it is incapable of belief, for the same is hearsay evidence. In our view therefore, the evidence of the respondents did not discharge the burden of proof to attain the preponderance of probability as to the identity of the employees.

The second scenario on the part of the respondents' case in relation to discharging the burden of proof or otherwise, is the complete absence of concrete proof that the appellant or her workers reported that the respondents are the ones who stole the soft drinks by using their motor trailer. The point we addressing here is corresponding to the legal position that, a person who reports information which leads to the false imprisonment may be found liable for the tort, even where he does not directly or physically participate in the actual imposition of the confinement. Relevant to this point is the evidence of PW1 at page 37 of the record of appeal where he stated that: "Previously I was a transporter o f big trucks, I have ju st heard o f JAMBO PRODUCTS LIMITED. However, I have never worked with them. They cla im e d th a t I b ro u g h t m y tra ile r T. 8 6 2 A C C to th e ir o ffic e an d cau se d fra u d /th e ft a t th e ir fa cto ry , It is said to be theft [o f soft drinks and a] m ixture o f [cold] drinks. These cla im s cam e to m y [a tte n tio n ] a fte r I w as c a lle d b y a p erso n [n am e d ] M K IS I w ho id e n tifie d h im s e lf a s a p o lic e o ffice r, th a t w as a ro u n d Ju n e 2 0 1 9 ." [Emphasis added]

This is the only evidence of the respondents proving that the appellant reported them to the police which act, led to their arrest and the subsequent alleged confinement. Nonetheless, that evidence ought not to have been accorded any weight because, a person called MKISI who is alleged to have told PW1 that the appellant reported them to the police, was not called to give direct evidence in compliance with section 62 (1) of the Evidence Act, so that he could be cross examined on such evidence under section 147 of the same Act. The omission to call MKISI to give first hand evidence on the reporting, rendered the evidence of PW1 on that point, pure hearsay evidence, which under our law, is not evidence that a court of law can attach any weight. Unfortunately, the trial court in this case considered the evidence credible, and that way it slipped into error of law. The complementary information to the above two points, is the third point we promised to cover. The content of the report that was made to the police was detailed before the trial court by F5595 D/CPL Swalo Mgaya (DW3), a police officer who received and recorded the appellant's complaint of theft. This witness, at pages 64 and 65 of the record of appeal, stated as follows: "Anthony [DW 1] reported that there was a consignm ent that was stolen at their factory and that

there is [a pay in ] slip which was used to pay from one store keeper and finafiy the consignm ent was packed [in ] the [tru c k ] w ith re g istra tio n No. T. 8 6 2 A P C M itsu b ish i Fuso... We started with TRA to establish the owner o f the [truck]; so that [they] can te ll us who NASSOR JABIR [w as] " [Emphasis added] The above evidence from the police, shows that the suspect who was reported to them was Nassor Jabir and the motor truck which was reported to have loaded the stolen merchandize, was make Mitsubishi Fuso with registration No. T. 862 APC. After the respondents had been conveyed to Shinyanga, and after it was discovered that the police were hoiding wrong suspects and had mixed up the registration numbers of the motor truck and impounded a motor trailer, DW3 states what he did at page 65 of the record: ”The suspect denied to be NASSOR JABIR and he is ju st another person. Further he said his car has No. T. 862 ACC, and the same is traiier not MITSUBISHI FUSO. When I caiied AMIM and asked him why the suspect is another person ; he prom ised to come and see what was happening." From the police officer who received the information, there is nothing like the name of any of the respondents or their motor trailer No. T. 862 ACC, having been reported to them by any of the appellants employees. In

addition, and perfectly corroborating the above evidence from the police officer, was the evidence of DW1, the appellant's marketing manager at pages 54, 55 and 58 of the record of appeal, where he stated: "On 21st August, 2019, Mr. Nassor Jabir came with a pay in slip worthy Tshs. 18,500,061/= where he also came with a [truck] T. 8 6 2 A P C F u so , later we came to detect that our money from Nassor Jabir [ was not reflected] in our NMB account... Later I went to report the m atter to centra! police station at Shinyanga Town. The re p o rt w as th e ft b y M r. N a sso r J a b ir fo r th e ft o f 1 8 .5 m illio n Tshs fo r p ro cu rin g o u r p ro d u cts. B u t a lso , th e [tru c k ] w hich w as u sed w as T. 8 6 2 A P C Fuso . " [Emphasis added] The point we want to drive home is this; the evidence of the respondents established neither participation of any of the appellant's employees in arresting the respondents, nor did it show that any of the appellant's workers reported the respondents as the persons who had stolen the appellant's goods. In this case, the appellant reported Nassor Jabir, but the persons arrested, none was Nassor Jabir; instead they arrested Hassan Hussein Musa and Hussein Abdallah Musa. The truck that the appellant reported was make Mitsubishi Fuso with registration No. T. 862

APC, but the motor vehicle which was impounded was not even a truck, they impounded a trailer with registration No. T. 862 ACC. That said, we need to clarify our firm position on one significant point as a matter of both law and principle. The point is this; reporting to the police any crime, real or potential, is a civic duty; it is an obligation on all persons under the realm of our law, without exception. The obligation is created by section 7 (1) (a) and (2) of the Criminal Procedure Act, (the CPA) which provides that: " 7 , — ( l) E ve ry p erso n who is or becomes aware~ (a) o f th e com m ission o f o r th e in te n tio n o f a n y o th e r p erso n to com m it a n y o ffe n ce punishable under the Pena! Code; (b) N/A s h a ii fo rth w ith g iv e in fo rm a tio n to a p o iic e o ffic e r or to a person in authority in the locality who sh all convey the inform ation to the officer in charge o f the nearest police station. (2) No crim inal or civ il proceedings sh all be entertained by any court against any person for

damages resulting from any inform ation given by him in pursuance o f subsection (1)." [Emphasis added] With the above provision in place, was it unreasonable for the appellant to report the incidence to the police, after discovering that NASSOR JABIR illegally took goods from her store without paying the purchase price? It is our firm holding that, in the circumstances of this case, the appellant had a right to protect the integrity and safety of her business, on one hand, and had a duty to report the crime under the law quoted above, on the other. We must add here that, a decision of whether to use or misuse the information received by an investigatory agency is within the exclusive domain and prerogative of the latter. After the informer under section 7 (1) (a) of the CPA, has his information recorded, what happens and how such information is handled and applied by its recipient, is completely outside his control, and to hold him liable for what the investigative agency does with the information, would be offensive of section 7 (2) of the CPA, quoted above. Before we conclude, we wish to make one more point in passing, particularly because, reading the written submissions of learned counsel and even listening from them at the hearing, it was clearly notable that there

was a dear confusion between two torts, false imprisonment, which is the subject of this appeal, and malicious prosecution, which is not. The cases of Wilbard Lemunge v. Father Komu & Another [2018] TZCA 195, James Funke Gwagilo v. Attorney General [2004] T.L.R. 161 and Yohana Ngassa v. Makoye Ngassa [2006] T.L.R. 213 and many others, which were cited by the learned counsel, were all authorities in relation to malicious prosecution. The point we want to make is that the two torts are not one and the same, see Kisanga Tumainiel v. Frank Pieper and Another [2016] 1 T.L.R. 432 and Kasana Produce Store (supra). The torts are completely different and the ingredients a plaintiff has to prove each, are not the same in every aspect. In view of the above discussion and by way conclusion, we agree with Mr. Mbamba, that the trial court did not properly analyse the evidence before it, which led that court to reach at an erroneous conclusion that the appellant was liable for unlawful arrest, torture and wrongful confinem ent : Thus, we find the third ground of appeal with merit and we allow it. Lastly, since allowing the third ground of appeal that the case was not proved to the appropriate standard, we do not find any usefulness in discussing the remaining two grounds of appeal.

All said and done, we allow this appeal, and as for cost, we order that each party to bear their own costs, having considered the circumstances of the case. DATED at DAR ES SALAAM this 15th day of November, 2024 G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 15th day of August, 2024 in the presence of Mr. Abdul Aziz, learned counsel holding brief for Mr. Samson Mbamba, learned counsel for the Appellant and Alex Balomi, learned counsel for the Respondents, is hereby certified as a true copy of the original.