BHOKE CHACHA v DANIEL MISENYA 1983 TLR 329 (HC)

BHOKE CHACHA v DANIEL MISENYA 1983 TLR 329 (HC)

Court High Court of Tanzania - Mwanza

Judge Mushi J

July 24, 1984

CIVIL APPEAL 3 OF 1983

Flynote

Tort - Malicious prosecution - Whether acquittal establishes falsity and malice of

original F prosecution.

Torts - Damages - Whether evidence showing malicious prosecution enough to

dispense with the need to prove damages.

-Headnote

The respondent had reported to the police that the appellant had created disturbance.

G Upon that report the appellant was prosecuted, convicted and sentenced to four

months' imprisonment. On appeal he was acquitted. The appellant filed a suit in the

District Court for malicious prosecution. The trial magistrate dismissed the suit with

costs to the respondent. He then appealed to the High Court. H

Held: (i) The fact that the appellant was subsequently acquitted does not establish that

the original complaint was false and malicious;

(ii) it was for the appellant to prove that the respondent's report was malicious

and that it was made without any reasonable or probable cause; I

(iii) proof of malicious prosecution is not enough to show that damage

1983 TLR p330

MUSHI J

had been suffered; for general damages the appellant would have to show that he A

suffered mental or physical injury or some other injury to his fame or dignity as a

result of the imprisonment.

Case Information

Appeal dismissed. B

No case referred to.

[zJDz]Judgment

Mushi, J.: The appellant, Bhoke Chacha, unsuccessfully sued the respondent, Daniel

Misenya, on a claim which was couched in the following terms: C

"That the defendant falsely reported to police that plaintiff created disturbance

in the public meeting and the plaintiff was arrested charged and convicted on that

offence, plaintiff was sentenced to four months jail, plaintiff, appealed against

conviction and sentence to the D District Court and his appeal was allowed in

criminal case No. 30/78.

Therefore: Plaintiff claims 6,000/= from defendant being general compensation

for the days which plaintiff stayed in jail or suffered and for the loss of his crop which

were spoiled by wild E animals (pigs) and birds when plaintiff was serving sentence

in prison".

The plaint, as it is, is not precise and clear as it should be. However, being as it is a

product of a lay hand one has to read it and try to find out exactly what the plaintiff is

up F to. From the plaint, it would appear that in substance the plaint is that the

defendant made a false report to the police that he had created disturbance. As a

result, of this false report, he was maliciously prosecuted. From the plaint, the

appellant is claiming both general and special damages although he has not shown it

in different heads. The G learned trial magistrate heard the evidence and after

careful consideration of law and facts he came to the conclusion and I quote:

"I am not persuaded that the plaintiff has established malice and lack of

reasonable or probable cause so as to sustain a suit for malicious prosecution". H

And the suit was dismissed with costs to the respondent. The appellant was

dissatisfied with the decision and he has appealed to this court. He has written a long

memorandum almost stating all what was stated at the trial but without raising

specific points I challenging the decision of the trial court. I should immediately

here state that the decision of the

1983 TLR p331

MUSHI J

district court cannot be faulted and the appeal will be dismissed. A

There is no dispute at all that the appellant was prosecuted and convicted and

sentenced to four months' imprisonment. It is also a fact that the appellant was

acquitted on appeal. It was also admitted that the respondent was the one who

complained to the police against the appellant. As it was stated by the trial

magistrate, even with all these B facts accepted, that by itself did not prove the

appellant's claim. This is the correct legal position. The fact that the appellant was

subsequently acquitted does not establish that the original complaint by the

respondent was false and malicious. No amount of tearful or eloquent complaints will

change this position. It is for the appellant to prove that the C respondent's report

was malicious and it was made without any reasonable or probable cause. This can

only be done by adducing evidence which will lead the court to make a finding

whether the respondent acted maliciously and without reasonable and probable

cause. There was no evidence at all on which the trial magistrate could have come to

that conclusion. D

Even if there had been some evidence to satisfy the court that the respondent was

malicious and acted without reasonable and probable cause, the appellant would still

be required to establish that he suffered some injury for which he was entitled to

some amount of damages. This he did not do. For the appellant to be entitled to

general E damages, he would have to prove that he suffered mental or physical pain

as a result of being sent to prison. The mere fact that the appellant was imprisoned,

did not by itself justify grant of damages. Or at least the appellant should have

adduced evidence to show that as a result of being imprisoned, his dignity or fame has

suffered in the estimation of fellow citizens and that his standing in the society has

suffered to his F detriment as a whole. There was nothing of this kind in the

evidence. As for the allegations that some crop was eaten by pigs and birds there was

no evidence to prove the allegations. It was upon the appellant to adduce evidence to

prove the allegation and to prove exactly how much crop was worth. The appellant

cannot expect the court to G grant what he has requested without proving to the

satisfaction of the law that he is entitled to it. The suit was rightly dismissed and the

appeal is without any merits and it is dismissed. The respondent is entitled to his

costs in this court and the trial court. H

Appeal dismissed.

1983 TLR p332

A