MROSO, J.A., NSEKELA, J.A., And MSOFFE, J.A.)
CIVIL APPEAL NO. 99 OF 2004
ABDUL-KARIM HAJI …………………………………………….APPELLANT
1. RAYMOND NCHIMBI ALOIS
2. JOSEPH SITA JOSEPH
(Appeal from the Judgment and Decree of the
High Court of Zanzibar at Vuga)
dated the 25th day of March, 2004
inCivil Case No. 33 of 2003 ------------- JUDGMENT OF THE COURT
15 & 17 November 2006 MROSO, J.A.:
This is an appeal in a case of malicious prosecution which had been filed in the High Court of Zanzibar. The respondents were the plaintiffs at the trial and the appellant, the defendant. The trial High Court gave judgment in favour of the respondents. The appellant was dissatisfied and has appealed to this Court.
At the hearing of this appeal the appellant was represented by the Zanzibar M.M. Chambers, Advocates and the second respondent appeared in person. The first respondent who could not be traced for normal service had to be served by a substituted procedure in which, by order of this Court, a notice of hearing had to be published both in newspapers and on the radio. Brief facts of the case which led to this appeal may be helpful.
The appellant owned a shop in Mlandege area of Zanzibar. Among other things he stocked bicycles and bicycle parts. During the night of 14
After several adjournments for the reason that investigations were incomplete, the police finally informed the court that investigations were “incompleted, (sic) yet witnesses are not cooperative. We pray for withdrawal u/s 81 (a) Cap. 14”. The court recorded as follows –
Prayal (sic) (s) granted.
Withdrawn u/s 81 (a) Cap. 14. (3)
Accuseds (3) befell (sic) a tribert foithruth.
After being set free the respondents filed a case of malicious prosecution against the appellant in the High Court. They claimed a total of shillings 15,000,000/= as damages. Paragraphs 4 and 5 of the plaint which was in Kiswahili read as follows –
At the trial two of the framed issues are pertinent. Issue No. 1 as framed read –
In dealing with those issues the learned trial judge said of the first issue –
Regarding the third issue the trial court said –
The appellant has filed five grounds of appeal and since they are not very lengthy, we have taken the liberty to quote them in full. They read as follows:-
That the learned Judge erred in law in entering judgment in favour of the respondents without the required evidence in support thereof.
That the Learned Judge erred in law in treating English criminal case procedure as analogous to our own.
That the learned Judge erred in law in not holding that the prosecution here is controlled by the Director of Public Prosecution or through his juniors and the appellant is not one of them.
That the learned Judge erred in law in shifting the burden of proof by requiring the appellant to disprove the suit.
Generally the judgment and decree is against the weight of the evidence.
There was absolutely no credible evidence that the appellant reported to the police that the appellants broke into his shop and stole money from it. There was also no credible evidence that the criminal case in the District Court was withdrawn under Section 81 (a) of Cap. 14 because the appellant failed or refused to cooperate with the police who were investigating the offence. Therefore, the findings of fact by the Judge on issues (1) and (3) as indicated above were unfounded.
Five witnesses gave evidence for the respondents. The first respondent gave evidence as PW1. He said in his evidence that he was arrested by the police 12 days after the day the appellant’s shop was broken into. He was taken to the police station in a car belonging to the appellant and
The second respondent as PW2 at the trial was arrested by the police who had been talking with the appellant at 8.00 a.m. on the same day of the theft. The police told him that he (2
PW3 – Martha Kayanda merely testified that the police who were accompanied by the appellant came to where she lived and inquired about the first respondent. But as the first respondent was not present the police came for him on two other occasions and finally met him and arrested him. They took him away in appellant’s motor vehicle and that the appellant was talking to a cell phone. We are being made to believe that each time either of the respondents was being arrested, the appellant would b
PW4 – Mohamed Suleiman simply told the trial court th
That was all the substantive evidence which was given with a view to proving the case for the respondents and against the appellant.
For his part the appellant said in his evidence that after he found out that money had been stolen from his shop he reported to the police and took his watchman to the police station. The police also recorded his statement and he did not tell the police he suspected the respondents. On another day the police asked him for transport as they had arrested suspects. He handed his motor vehicle to his driver who drove away with the policemen. After the suspects had been arrested he went to the police station to make a follow-up and the police told him they would call him when they needed him. They never called him thereafter and he did not even know that the police had charged the respondents in court. He did not help the police in their investigation of the case against the respondents. He did not know the person who gave the names of the respondents to the police and he was not present when the police arrested the respondents nor was he talking to a cell phone at the time of their arrest.
It will be noted that no policeman was called as a witness by either party to tell the trial court how they got to know that the respondents were
The District Court record we quoted earlier in this judgment regarding the withdrawal of the charge against the respondents did not show that it was the appellant who had caused the delay in the finalization of the investigations in the criminal case. The prosecutor who made the application to withdraw the charge was not called by the respondents to elaborate on his application, whether the appellant had been requested by the investigating officers to assist in furthering the police investigations but refused to cooperate. The policemen who allegedly told the first respondent that it was the appellant who gave to the police the names of the respondents as suspects was not called to confirm the allegations of the first respondent.
It will be seen from the discussion of the evidence which was given at the trial in the High Court that there is not a scintilla of truth in the claims that the appellant caused the prosecution of the respondents even by giving their names to the police as possible
The respondents having failed to adduce threshold evidence in their case in the High Court it is difficult for us to understand how the High Court could reach the conclusions it did, that the respondents had established their case against the appellant. It is an elementary principle that he who alleges is the one responsible to
What we have said so far is enough for us to end this judgment and it is a waste of time, energy and paper to discuss the other grounds of appeal. We quash the High Court judgment and allow the appeal with costs.
I certify that this is a true copy of the original.
Cited documents 0
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