Ambindwile Nteba vs Peter Msyani and Another (DC Civil Appeal No. 5 of 1998) [1999] TZHC 236 (10 December 1999)

IL' J3S. ILM 1J13 OF IA ATMBEYA . . . . DC CIVIL APPEALNO. 5 OF 1998 (From the Original divil Ce Noe 43 of 1995 in the District Court of Nbeya at Mbeya S.M. — Resen .. . AMB1ENDWTLE. NTEBA . . . •..... 0S• •.• • APPELLkNT Versus -

1. PE)ER MSYANI 2 • THE CHAIRMAN MWALA LA° ' PONT• COUNCIL . DG1ENT This appeal arises from the decision of the Resident l4agistratesl Court of Mbeya in its Civil Case No. 3 of 1995 preferred byMr. Kapinga, learned adv,c'ate for the appellant, Ambindwile s/o Mteba, and defended by Mr. Kayange, learned advocate fr both respondents, Peter 6/0 Msyani and the Chairman Mwala Village Council,Anyasime s/o Solomon. These material facts were established in evidence. The appellant had a young brother called Anganile s/c Mteba (PW2) who was ixwolved in a land dispute case before Mbalizi primary court. It was civil case No. 232 of 1994. The first respondent,Péter Msyani (DW1), was a militiaman stationed at Mbalizi police post. On 13.12.94 the primary court issued a summons intned for the arrest of PW2.jn connection with the case. The summons was handed over to the first respondent for execution. ThG first respondent then went to the house of the appellant in search of PW2. He was with the zecnd respondent (DW2) and Gideon Lwangalo (DW3). They were four in all. The appellan€ prevented or obtructed the first respondent from executing the summons claiming that it was the police who had powers of arrest and not militiamen. The first respondent reported the situation to. the primary court which sntpoli.emen, among them PC Frank, to arrest the appellant. The four persons joined the policemen. - They arrested the appellant and brought him to the police post where he was locked up. o!s••.•* /2

-2- 'I1 (i4.'c,9 4 a 4harge of Obstructitg serv'ice of summons, contrary to ect r1(a) of the Penal Code, was preferred against th.eappe)j.ant' before the primary court0 It was Mbalizi primary court criminal Case No. 388/94. The first respondeit was the complainant and the, appellant the accused. The first re&poxl4eiit clos.d his side of the case, after he and his one witness were heard. However, on 10.4.95 the first respondent failed •to enter an appearance in court, and the case as, ii consequerwe, disinissed and the appellant discharged under aection 24 of the Primary Courts Criminl Procedure Code - Third Schedule to the Magi&trates Courts Act 1984. The appellant then preferred the suit. Th suit as Lor monetary claims based, on a. v&riMy of aUeatior.. First, hs.300,0001 for defamation or humiliation in that the arresting party found him taking a bath in the bathroom and took him naked before members of his family and other people. Second, shs.00,OOO/= for assault in that he was assaulted at the time of his arrest. Third, shs.400 2 000/ for loss of income or earnings I rem his business in that he was unlawfully detained for seven days. Fourth, sh6.400 t oo 0/= for transport, meals, accommodation and medical charges and expenses in that he had incurred the money in the course of the criminal case. And fifth, shs.90,000/= seized from him by the police at the time of his arrest. He also claimed costs and interest. The claims were denied by the respondents whose: main defence was that the appellant was lawfully artested, detained and prosecuted. They denied that any money was taken from the appellant and that the appellant was assaulted or taken about naked. The trial court found the claim as a whole not established, and I would, with respect, uphQld that finding on the evidence and in the circumstances of the case. Quite obviously, in my view, the claim based on defamation was a misconceptiàn. .The toit of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification. , This could not be said to have been the case here. Perhaps what was meant hei'e was malicious prosecution. But in order to succeed in a suit for malicious prosecution the ,plintiff must prove the four ingredients of that tort— SE .......• 13

C, -7 - GiQflZUmbaI4WaSOte 080) TLR 154, The fouD ingDedients are: (a) That the plaintiff was prosecuted by the efendazit; b) Thatthe-prosecution ended in his favour; (c) That the prosecution was conducted without reasonable or probable cause; That in bringing the .pros.ecutionthe defendant was actuated byhzalice. - In this case ingredients (c) and (d) were not established. There.was reasonable and präbable cause for the arrest 1 detention and prosecution of -the appeUant.' it ias amply established that the appellant had stood in thewarof. the lawfil arrest of his brother PW2, In law, :militi1an, like a po:Liceman, is empowered to effect a warrant of arrest issued by a court of law. So the institution of the criminal case was justifiable. With respect to Mr. Naali, the criminal case was not bogus. It was dismissed, not because it was frivolous or vexatious, but on a technicality. I am satisfied, as was the trial court, that the claims based on defamation, loss of earnings, and expenses incurred in the S course of the criminalcàse were noti on the evidence, tenable. The claim for shs.90,000/=, likewise, was not tenable. It.wa hurledat the police officers, who were the arresting Officers, and not at the respondents. It was thus mislaid. And more, the appellant- and his wife, Eresia Ambindwiie

• (PW3), said that PW3 gave the polid6 the money at the request ofthe pblice But the reason for parting --with the money was not given. Going by the word of the appellant and PW3, therefore, the money was not seized from them as alleged, but it was voluntarily surrendered for an undisclosed purpose. That claim, in any event, was not established. This would account for the fact that no report about it was registered at any place or with any person in authority as ought to have been the case had the allegation been true. I am, in consequence, satiàfied that the claim for shs.90,000/ was not only untenable but unestablished as well. There was, finally, the claim of shs.200,000/= for assault. But the assault itself was not established to the required extent. The appellant ........ t

.e$t.ei' the asst at NbalLzi police post nor at the primary court nor at the time of his arraignment ever. The assault was neither medically e&tablished nor substantia.ied by treatment chits notwithstanding that the appellant had placed a claim based on medical expenses. For all the foregoing reasons, I am satisfied, as was the trial court, that the suit was, on the balance of probabilities, not established. In consequence, I find this appeal devoid of merit and hereby dismiss it with costs. JUDGE. AT MBEYA. 10 December 1999.

• For Appellant: Mr. Naali, advocate,
• For Respondents: Mr. Kayange, advocate. -