Jeremiah Kamama v Bugomola Mayandi 1983 Tlr 123 (Hc)

JEREMIAH KAMAMA v BUGOMOLA MAYANDI 1983 TLR 123 (HC)

Court High Court of Tanzania - Tabora

Judge Chipeta J

July 6, 1982

CIVIL APPEAL 4 OF 1981

Flynote

Tort - Malicious prosecution - Elements of.

Tort - Malicious prosecution - Allegation that plaintiff had committed a crime - Allegation D made with improper motive - Plaintiff arrested, charged but later released for lack of evidence - Prosecution malicious.

-Headnote

The defendant made an allegation at a public meeting that the plaintiff was responsible for a spate of arson committed in the village. The defendant further ordered the arrest of the plaintiff as a result of which the plaintiff was handed to the police, and charged but was latter released for lack of evidence. It was established that the allegation was made on account of political rivalry and was false. In the District Court, judgment was given for the plaintiff who was awarded shillings 5,000/= as damages. Dissatisfied with this decision, the defendant (appellant) appealed to the High Court.

Held: 

(i) For a suit for malicious prosecution to succeed the plaintiff must prove simultaneously that:

(a) he was prosecuted;

(b) that the proceedings complained of ended in his favour;

(c) that the defendant instituted the prosecution maliciously;

(d) that there was no reasonable and probable cause for such prosecution; and

(e) that damage was occasioned to the plaintiff;

(ii) for purposes of malicious prosecution, a person becomes a prosecutor when he takes steps with a view to setting in motion legal processes for the eventual prosecution of the plaintiff;

(iii) malice exists where the prosecution is actuated by spite or ill-will or indirect or improper motives.

Case Information

Appeal dismissed.

Cases referred to:

1. Brown v Hawkes [1891] 2 Q.B. 718

2. Tumanieli v Aisa Issai [1969] H.C.D. n. 280

3. Hick v Faulkner (1878) 8 Q.B. 167

4. Herniman v Smith [1938] 1 All. E.R.1

Chipeta, J: In Shinyanga District Court the respondent, Bugomola Mayandi, -

hereinafter referred to as the plaintiff - successfully sued the appellant, Jeremiah Kamama - hereinafter referred to as the defendant - for malicious prosecution and was awarded shs. 5,000/= as damages. Dissatisfied with the decision of the trial court, the defendant has appealed to this court.

At the trial, the plaintiff and his witness adduced the following evidence: the plaintiff and the defendant are known political rivals in their village of which the defendant is the chairman after defeating the plaintiff at the elections.

Some time before this suit, there had been a spate of arson in the village. At a public meeting, the defendant accused the plaintiff of being involved in the arson. He did not stop there: he later instructed members of the people's militia to arrest the plaintiff and hand him over to the police on the allegation that the plaintiff had committed arson.

The plaintiff was then arrested and was charged with the offence of arson. Police investigations, however, completely failed to unearth any evidence to connect the plaintiff with the charge of arson. In the end police had no option but to withdraw from the prosecution and so the plaintiff was discharged. This was after the plaintiff had been in custody for some 30 days.

It was the plaintiff's evidence that the defendant's report was false, made maliciously and with spite and ill-will, and that in making the allegation the defendant was motivated by the political rivalry between them.

In his defence, the defendant did not seek to justify the allegation. On the contrary, he completely denied having made the report to police or to the People's militia or to anyone else.

The learned magistrate carefully considered the evidence before him and found as a fact that the defendant made the allegation at a meeting that the plaintiff had committed arson; that the defendant instructed members of A the people's Militia to arrest the plaintiff and take him to police; that as a result the plaintiff was arrested and charged but was later released for lack of evidence; and that the report was false. From the evidence and his findings of fact, the learned trial magistrate came to the conclusion that the false report was made maliciously with a view to victimizing the plaintiff who had been the defendant's political rival. The learned magistrate accordingly found for the plaintiff.

In order that a suit for damages for malicious prosecution should succeed, a plaintiff, in my view, has to prove the following; (a) that he was prosecuted; (b) that the proceedings complained of ended in his favour; (c) that the defendant instituted or carried out the prosecution maliciously; (d) that there was no reasonable and probable cause for such prosecution; and (e) that the plaintiff suffered damage as a result of such prosecution.

The first question that arises, therefore, is when is one said to be a "prosecutor" for the purpose of a suit for damages for malicious prosecution? In my opinion, a person becomes a prosecutor in this regard when he takes steps with a view to setting in motion legal processes for the eventual prosecution of a person whom he alleges has committed a crime. For instance, if A tells the police that has stolen A's shirt and as a result of that is arrested and charged with the offence of theft, A will be said to have set in motion B's prosecution. A, therefore, will be said to be a prosecutor in a suit for damages for malicious prosecution.

The prosecution, however, must have been made or done maliciously. What amounts to "malice" in this regard is not easy to define. In the English case of Brown v Hawkes [1891] 2 Q.B. 718, at page 723, Cave, J. defined malice as some other motive than a desire to bring to justice a person whom he (the accuser) honestly believes to be guilty. In Halsbury's Laws of England, the term malice is defined as follows:

The malice which a plaintiff in an action for damages for malicious prosecution...has to prove is not malice in its legal sense, that is, such as may be assumed from a wrongful act done intentionally, without just cause or excuse, but malice in fact - malus animus - indicating that the defendant was actuated either by spite or ill-will against the plaintiff, or by indirect or improper motives.

(See vol 25, at page 356 - 3rd Edition).

For my part, I prefer the latter definition, qualified to this extent, that the accuser, in addition to spite or ill-will or indirect or improper motives, was not actuated by a genuine desire to bring to justice the person he alleges to be guilty of a crime. Having proved that he was prosecuted maliciously and the proceedings in question ended in his favour, the plaintiff must go on to prove that the defendant or accuser had no reasonable and probable cause for such prosecution. This is an important element of the action because it is not every prosecution which ends in an accused's favour that exposes an accuser to a suit for damages for malicious prosecution. If that were so, scores of complainants or police informers would be sued. As Georges, C. J. (as he then D was) stated, in case of Tumaniel v Aisa Issai [1969] H.C.D. n. 280 When there is reasonable suspicion that an offence has been committed and good grounds for thinking that a particular person is responsible it is the duty of every citizen to pass on such information... to the police to help them to find the offender.

If the police act on such information and arrest anyone then the person who has given the information should not be liable for damages for defamation unless it is plain that he had no good grounds for suspecting the person named and that he was acting spitefully...Similarly there will be cases where the Police take a person into custody for investigation which seems quite reasonable and no steps are taken.

Again in such a case the accuser should not be charged unless it can be shown that he deliberately made a false report....(Where) a report to the Police (is) intended to lead to the investigation of a crime...there should be no compensation payable in such case unless the report is shown to be false and prompted by malice.

In that case the learned Chief Justice was referring to suits for defamation, but in my view, the principle applies with equal force to suits for damages for malicious prosecution. What, then, amounts to "reasonable and probable cause"? In the English case of Hick v Faulkner, (1878) 8 Q.B. 167, Hawkins, J., said at page 171:

I should define reasonable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any reasonable and cautious man, placed in the position of the accuser, to the conclusion that the A person charged was probably guilty of the crime imputed.

This passage was quoted with approval by the House of Lords in Herniman v Smith, [1938] 1 All E .R. 1, at page 8. I myself cannot improve upon that definition of "reasonable and probable cause", and so I would respectfully adopt it as my own.

Now, the question whether or not an accuser acted maliciously and without reasonable and probable cause are questions of fact to be decided on the basis of the circumstances revealed by the evidence in each particular case.

In the instant case, I respectfully agree with the learned trial magistrate's findings of fact that the defendant did accuse the plaintiff of having committed the serious crime of arson and thus put in motion the process of the plaintiff prosecution; that the report was utterly false; and that the proceedings ended in the plaintiff's favour.

The question, then, is whether the prosecution was malicious. Here, the accusation was, to the defendant's knowledge, false. There was nothing on which a reasonable and cautious man, placed in the position of the defendant, could base suspicion, let alone a full conviction, that the plaintiff was probably guilty of the offence of arson. Apart from setting in motion the process of the plaintiff's prosecution, the defendant made an accusation in public, and he has failed to justify the accusation.

There is also the known fact that the parties are political enemies. In the circumstance, it seems to me, the F inference that the defendant acted through spite, ill-will or peevishness, is a reasonable one. Was there, then, reasonable and probable cause for the prosecution? Like with malice, it was for the plaintiff to prove lack of reasonable and probable cause.

It is undoubtedly a difficult task for a party to prove a negative. It is, I think, for that reason that English courts have often held, and I tend to agree, that in general, in proving the absence of reasonable and probable cause, a plaintiff need only give slight evidence of that. (See Halsbury's Laws of England, Vol. 25, at page 363, 3rd Edition).

In the instant case, in my view, bearing in mind that the report was, to the defendant's knowledge, false; that there was not an iota of evidence which could have been a cause for suspecting the plaintiff which could have prompted a reasonable and cautious man to think, let alone say, that the plaintiff had committed arson, the inference that there was a I lack to reasonable and probable cause was justified.

Finally, I turn to the question of "damages". Here, I comprehend, means damage to property, damage to a man's reputation such as where the matter is scandalous, or damage to his person such as where his life, limb or liberty is endangered.

In the case before me, the respondent's liberty was not only endangered but actually lost for about a month, and the law presumes damage in such a case. To that extent, therefore, the plaintiff had proved damage. The respondent further proved damage to property by establishing by evidence that as a result of his incarceration his crops in his shamba were exposed to waste and were in fact destroyed.

As to the assessment of damages, I can see no reason to interfere with the trial court's assessment. This was a very serious allegation and the plaintiff, in addition, proved damage to property.

For the foregoing reasons, this appeal must fail. It is accordingly dismissed with costs in this Court and the court below.

Appeal dismissed.

1983 TLR p128

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