Paschal Mikebo vs Mwangulija Yegela (H/c Civll Appeal No. 6/97) [2000] TZHC 53 (7 June 2000)

MW!TA 1 J .•. / t)~ JN THE HIGH COURI' iF TANZANIA AT TABORA H/C CIVlL APIBAL N0 .. :'34/9, (om. CIVIL CASE NO. 6/97 URAMBO D/COURI') VER3U.9 . KW ANGULIJA YEGELA. • • .., , • • • ~ .. 1 .. • _. • e • msroNDENT • J U D G M E N 'l' In 1997 Kwa,ngulija Yegela me.de a report to the Police to the effect tht ·Paschal Mikembo had beaten his child. As a. re1:,ult •f the said re~~t to· he;:poliet· Paschal. Mikembo was arrested,. He was charged :: with the •ffenoe pf causing_aitual bodily ha,;m c4ntrary to section . 241 of the.Penai Code. He was ••nvictei as charged and sentenced I . • . h six months imprisonment by th&·Kal.iua. Primary Court~ • It appears that for the riod between his arrest and cenclsi•n of the trial, Paschal Mikemh. was in remand prison. :i, Diss!tisfied with both oonviction and sentence Paschal Mikmbe succ-esfuly appealed to Ure.mbo District Court In being released from prison Mikembo instituted a civil suit at Urambo District Court against Kwangulija Yegela claiming dame.ges as a result of 1oss to his business due to his being imprisoned and food expensea while he was in l'ma.nd prison at KaJ.iua. The claim was unsuccessful. Aggrieved by the District Court's decision, M:i.kembo has appealed to tis court. At the hearing of this appeal both parties a:ppeared and argued the appeal in person. The plaint appears to have been dre.fted by a lay person. Appart from claiming damages, it is not_ alleged that the pro,secut:ion was actuated by ma.lice nor that the prosecution ,ra.s instituted without reasonable_ ,r probable cause. To KASANA PRODUCE STORE V. KATO (1973) E.A.14o it wae held by the East Africa.n Court of Aal that .an attiin for lse imprisonment • • f • • • • lie:s when there hs been &.n impri~nment withAut An 4rder •-; a ~urtt ♦

( 2 ) and that where the imprisonment is by order of a eaurt following on a· prosecutien the appropriate action is for malicious prosecuti•n• In thJ instant case Mikembo was convicted a!.ld sentenced ~ imprisenment by the Prirra.ry Court at the conclusion of a trial. Hence his claim would be appropriately based ~nan action for malicious prosecution. It appears to ''be well established thP-t in order t• succeed in an action for malici.us prosecuti•n the plaintiff must prove 4 things: . (i) That there has been a prosecution which has caused him damage and that the prosecution was instituted by the defendant; (ii) that the prosecution was terminated in his favour; (iii) that the defendant acted without reasenable and probable cause; and ( iv) that the defendant acted maliciously. See: HOSIA. LALATA V. GIBSON ZUMBA MWASOTE ( 1980) TLR 15"'; EDWARD CELESTJNE AND OTHERS Vo DEOGRA.TIJ\S PAULO (1982) TLR j+7 and JERENIA KAM.l.fvlA. Vo BUGOMOLA MAYANDI (1983) TLR 123. There is sufficient damage in 1aw, for the purposes of this tort·, if; The plaintiff was charged with an imnrisonable Mfence; or the charge was necessarily defamatory to the plaintiff; or the plaintiff incurred any legal or other costs in defer:.ding the chP-rge. In the instant case the appellant was charged with an imprisori:able offence., Indeed he was sentenced to a term in prison. The decision was reversed on appeal. He must also have incurred some costs in defending the charge. It has been held in Ganada that the laying of the information before a magistrate is ufficiet 11 instituti'on 11 of pr!ceedings even though it is withdrawn before the summons or we.taut ha.ve b(len issued: CASEY Vo AUTOIDBILBS RENAULT (1,65) 54 DLR (2nd) 6j1 In IDHAMSD AMIN V • BANNERJEE (1947) A.Co 322 at 331 the Privy Council held that a complaint tb"a magistrate who held a public inquiry and then dismissed it was a sufficient "prosecution"• -It was emphasi61:!d that 11 prosecution 11 should

.,. ( 3 ) ,, nit be tken in a technical sense. Thus the test as to whether an actual . t 11 prosecutitn 11 has been instituted_was not whether proceeding have reached a stage at which they be correctly described as a 11 prosecution 11 but whether they have reached a stage at which damage to the plaintiff results. In the 5 nstant case there is n• disute that there was a prosecution against the appeallant as a result of which he was convicted and sentenced to a term i:J. prison. In MALZ Vo IDSEN (1!66) I WLR 1008 it was held that a private :individual. wh• goes to the police and makes false accusatiens a.n a result of which the p•lice c•mence a prosecution can be sued directly for malicious prosedution. ~ . In HOSIA IALATA V. GIBSON ZUMBA MWASOTE (198e) TLR 154 at P.,156 SA.MA.TTA, J. (a he then was) said: "•~ behalf of the appellant, Mr., Haule contended that since the prosecution complained against was a public •ne the suit should have been brought against the poice. In the learned advocate's subAission, the appellant was a mere witness in th0 criminal case., With un feied respect 1 I cannot agree., For the purpose of the tort of nalicious prosecution a -prosecutor has been said to be a man who is 1 actively instrumental in putting the law in force. ApplY,ing thet defi.rii tion in the present case, l own I cannot see how the I appellant can be heart to say that he was not the prosecutor in the criminal J. •ase. He had falsely informed the police that the respdndent had demanded a bribe frem him. It was upon the strengt.h of that infcirmation that the bounds I , •f justice laid a trap which ended in the arrest of the respondent. -- The I passengers c;m the ,UDA t&mn1.bus tJrould be justified to regard the law as an ass if Mro Haule•s argument were given c•untenance by a court •f•justice. Aa everyone Who is sufficiently familiar with it will readily ~dmit, the law is not an ass.· " . l Like the learned trial magistrate, I am •f the view that the respondent was prosecuted by the appellant._ 0 ' . } In the instant case the police acted 4in the report if the respondent t•' the effect that the appellant has dssaulted the respondent's.Child... Th.us the respondent was actively instrumental in putting the law in force and was, therefore, tke pr•secutor for the purpose of the tort of malicous prosecutio•• •

( 4 ) In ROSIAN LA.LA.TA Vo GIBSON ZUMBA MWASOTE it was held that an ae4uittal on appeal constitutes favourable termination o~ preceedings in f'avour of an accused person. In the instant case, in so far as the appellant won the criminal appeal it can. b.e said that the prosecution was terminated in his favour. Nevertheless ANIMUS JNJURIAE cannot be inferred from the mere fact that the prosecution ha~ failed: COREA V. PEIRIS (190,) AC 5'+9. The allegation of want of reasonable or probable cause must be expressly 1roved and cannot be implied. In ALIMOF.A.MED OSMI\N Vo D. C. HILL (1953 - 1957) 2 TLR ( R) 183 j,t was held that if a police officer his reasonable and probable cause for prosecution and acts accordingly he is not liable in damages for rre.licious . ' . prosecution •. With regard to the definition of "reasonable a:nd probable cause" 1 LOWE 1 J at P. 183 said: "In the case of Herniman v.Smith (19.38) A.a. 305, the House of k>rds also approved a definition of 11 reasonable ad probable cause' by Hawkins, J. in Hicks V Faulkner ( 1878) 8 Q B D 167 ~ 171 Eis tan honest belief in :the guilt of the accut.0d based on a full conviction founded upon reasonable grounds, of the existence of a state of circiim1:>ta.nces, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed"-·• In KAGAr-zy:: AND OI'HERS V. ATTORNEY GENERAL AND ANOI'HER ( 1969) E.A:. 643 it was held that whether there was reesonable and probable cause for the prosecution si primarily to be judged on the objective basis of whether the material known to the prosecutor would satisfy a prudent and cautious man that the accused was prbably guilty. In JERIMD't KAMA.MA v. BUGOM:>LA MA.YANDI (1983) T.L.R.123 i~ -we.a he1d that malice exists where the prosecution is actuated by spite or ill - . . . - .. .. . will or indirect or improper motives. In ALilvDHAMED OSMAN v.DC. HILL 2 TLR (R) 183; Lowet :J,. said at p:1sl !'Even if the defendant had be~n ctuthd by mali&e the piaintiff 6ou1l not succeed in an action for damages for malicious prosecutidh if it were shown that the defendant had reasonable e.nd probable cauae.· ·

i r ( 5 ) j. for the.prose(?utien .. This is abundantly clear from the 'dicta' of Denning, LoJ~, in Tempest VQ SNOWDEN (1952) A.E.R.I at P5 with which, with respect, I agree"•·' .. ~ ·. . There is no evidence on record to inticate that the respondent acted without reasonable and probable cause. During the harinf of this appeal the respondent coneded that he married the appellant's former spouse who has since returned to the appellant with the respondent's child. This indicates that there may be ill - will between the parties. However, even if the prosecution was actuatedy by spite or ill - will the respondent cannot succeed having failed to prove that the respondent had no probable or reasonable cause for the prosecution., The appeal is dismissed with costs .. Do M. 'M.rJITA JUDGE tRDER .. The District Registrar to call the parties and read to them this judgment. Date: 4/7/2000 Coram: Mr. s.B.Lukelelwa, DR Appellant - Present in person. Respondent ... Pre.sent in Person Miss Eliza s.M. c/c. JUOOE 7,6.2000 Order. Judgement delivered in court this 4th July, 2000~ s.B.LUKELELWA DISTRICT REGISTRAR 4/78,000