Selemani Mussa Mwambangulu vs Rashidi Saidi (PC. Civil Appeal No. 54 of 1996) [1999] TZHC 94 (26 February 1999)

IN THE HTGH COURT OF TANZANIA ~T DAR RS SALAAM PC. CTVTT, APPEAL NO. S4 OF 1996 (Originating from Morogoro District Court Civil Appeal No. 31\95 ano Ngerengere Primary Court Civil Case No. 7. of :1()95) SELF.HANT MUSSA MWAMBANGULU ..... . VERSUS RASHTDT SA TDT. .RF.SPONDF.NT . .l U D G R M F. N 'T' T<AL F.GF.V A ; ,J. The Appellant, Se l emani Mussa Mwambangnlu, hacl s11cces flll 1 y s11en Ra8hi d Said ( Resp0noent) hAforA the Ngerengere Primary Court, for ma l i_c j nus prosec1-1t j on anrl or.cier.ed to be pa i r1 sh8. 100,000/= as compensAtinn for the suffering whUA locken np ;:it thA police 8tation ano name tarnisher1, ;:ind shs. 23,000/=· Allegedly inr.11rred as r.osts wh·ile att.en<ling the crjmina.l c.:=tse. Appellant hA<l been chArgAd together with 2 others who werA convicted whilA he wAs a.cqt1itted. The r.harge facing them w.:=ts assAult causing Act.11a) boni.ly hArm r.\s ?.4l of the Pen;:il r.odR. The victim wa8 Respondent. The present appeal enamates from the decision of the Mor.ngoro nist.rict Com:-t. (Kallenga, RM) which allowed Rashid Saio's appeal by ol<ling that apart from the absence of eviclence establishing the costs to a tune of shs. 2 3 .. 0 0 0 / = t. he e v i den c e Ado 11 c e rl i n t. he c r i m j n a l case il i rl not e8tahli8h that. Responnent had ;:ir.t.P.il mal i.cio11sly. !=;elAm,=rn co11ln not. stomach this hP.nce his appeal to t.hi8 r.ourt. r.harging th;:it the Distrit Court err.eel. T sho11ld start hy stating what one has to prove in order to sur.ceed in a 81.Jit. for mr1lir.io118 proser.ut.i.on. He mnst. prove that (i) he was proseci1ten by the nefendant 1

(ii) the prosecution ended in his favour (iii) the prosecution was conducted without reasonable or probable cause, and, (iv) in instituting the prosecution the defendant was actuated by malice (Rosia Lalata v Gibson Zumba Mwasot.A (1980) 'rLR 154) Tn the case at hand it cannot he doubted that the Respondent wa.s the act.ur'll person who was Actively instumental in put.ting the law into motion, for, hA is thA one who reported to the poljce. He is therefore the prosecutor in that sensA. There is no doubt also that the prosecution terminated in Appellants' favour. While he was one of the three people charged he was Aquitted, whereas hi.s colleagues were convicted. We remain with whether the prosecution was without reasonAble or probable cause and whether the prosecution was activated by malice. As already indicated, mere reporting of a crime to the police, tn~ading on reasonable iind prohahle cause when so acting,. A.nd wi.thont malice, c;rnnot make one l i Ahle for thA proser.ut j on thAt ensues after the i ndepEJndent. invest, i.gat ion hy the poJ ice (see also ~bd11l Javer HAghji v Allibhai Mit.t.a (tQ67) HCD ?.35). And t.hi s is so becAuse thP. or.cas ion wo11 lo hP. pr i_ vi 1 egen un1 ess ar.t1Jal malice is proved in mr1king the report t.o thRm (po)ice) (YohAna Mujuni v Tsaya Bakohi (1Qng) Hen 7.3). Tt should however he noted that the word 'ma Ji c:e' is 11i=;erl to show that the report i. ng or publ ic-,t, ion of the statement WAR ;:i wrongful_ act. and does not relate to the Defendant's intention (Japhet Mwanga v Mterni Senge ( 1969) HCD ?.1). Fol'." that. matter, thR defendant should have made the statement\report witho11t improper or indirect motive otherwise malice would readily be inferred. A pursuasive definition regarding this concept of malice given in CLARKE v MOLYNEUX (1877) 3 Q BD ?.35 at 246 and approved by this court in 2 C:'

t; CHIMALA STORES V ZAMBIA - TANZANIA ROAD SERVICES LTD (1970). HCD 232 and subsequently in· BI THEONESTINA RWEKLIKA & ANOR V RUBERT BINAMUNGU (1973) LRT 95 can best illustrate this, "If the occasion is privileged, it is for some reason, and the defendant is only entitled to the protetion if he uses the occasion for same indirect or Wrong motive ..... malice does not mean malice in Jaw, a term in pleading, but actual malice, that which is pro~erly called malice ..... so if it be proved that out. of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be tn,e .. ;:ind he has s t.;:it.erl it. whether i. t he t.r11e or not reek 1 ess l y hy rea.son of hi.s anger or other motive, the jury may infer that he nserl the occassion not for the reason whi.ch justifies it, hut for. the gratification of his angE':ir or other. -indirect motive. The only test is whether the defend;:int did, in fAct beli.eve what he sAi.rl, and not whether A reAsonahle mnn would have heli.=ived it.". T.et. 11s now app 1. y these principles to the f ;:ir.t s of the case at. h;::irio. Tt woulc'l seem there WAS n heli.ef looming in the parties' village that there were witches, an<l, Respondent seems t.o have heen one of the snspects. A med i ci nemnn on hi.s wi. t.r.h-cntchi ng errands was jn action in this vjl]nge. At one point, when villagers h;::id gathered, the Respondent was sumrnonec'l to Appear at the gathering. Upon arrival he was called upon to sip some of the concoction·prepared by the sairl medicineman which he refused. He was also called upon to pay shs. 000/= which he also turned down. Re t.hen bluntly told the gathering t.hnt he was going away, which utterance he put into act.inn. Having moved for a distance A group of villagers descended on him. He was man - handled, severely Assnult.ec'l, leading nmong ot.hArs, to frnr.t.11re of his ;::irm. Tt wn11l cl seen{ thr1t. he wAs t.horoughl y ;:iss;:iul t.ed nnd clAnrl y injured, t.hnt the villagers, r.ont.rnry to whAt. is gAnernl)y expert.er!, felt. A gui.lt.y r.onsr.ience r1nc'l were oh1 i.gecJ t.n r.ont.r-i..hute shs. 4000 / = 1·.n recompensA the pun i.shment. inf l ir.t ed on h ·i rn. Among his assilr1nts he helievec'l he identified were fjve persons i.ncluc'li_ng the 3 at.:cuseds, one of whom w;::is the Appel l;::int. He duly ' 3

• Q~ .~ reported these people to the police. Three were arrested while two others, for reasons undisclosed, were not traced. After their investigation the police forwarded the 3 accuseds to court. At the end of the trial the appellant was acquitted. On these facts can we say that the Respondent had no reasonable and probable c;:iuse and that he was nct.ur1t.ed by malice? A.s did the District Court, T have carefully considered this in light of the evidence on record and the sorroundi.ng ci. rcumst,=rnces gi=meral ly only to arrive at a negative answer. From the totality of all t.hi.s, the Distri.ct Court finding cannot he f;rn]t.ed. tt. i.s uphelrl i.n its entirety. The Appeal is dismissed. ( L. B. Ka legeya) .1UDGF. 4 .. . .