Court name
High Court of Tanzania

Mbaraka William vs Adamu Kissute & Another () [1984] TZHC 28 (27 July 1984);

Law report citations
1983 TLR 358 (TZHC)
Media neutral citation
[1984] TZHC 28
Coram
Mushi, J.

Mushi, J.: The appellant, Mbaraka William was successfully sued for malicious prosecution by the two respondents, Adamu Kissute who shall be referred to as first respondent and Dickson Okulu who shall be referred to as second respondent.  The I appellant was ordered to pay Shs. 5,000/= to each of the respondent as general

damages.  The appellant was not satisfied with the decision and he has appealed to this A court.
In the District Court, the respondents had claimed that the appellant had falsely and maliciously reported to the Police Musoma that the respondents together had threatened to kill him which is an offence punishable under Section 89(2) of the Penal Code.  They B further claimed that as result of the false report, the police arrested and charged the respondents in Musoma Urban Primary Court in Criminal Case No. 130/79 but the respondents were acquitted.  The respondents claimed that by reason of the appellant's act, they were seriously and gravely injured in their reputation, credit and character and have suffered pain of body and mind and have been brought to public scandal, odium C and contempt. As a result, the respondents claimed Shs. 19,000/= as general damages.  The trial magistrate found that the report which was made to the police by the appellant was without reasonable and probable cause.  The respondents were awarded a total of Shs. 10,000/= as general damages. D
The appellant's memorandum of appeal contain six grounds but apart from ground number six which refers to the amount of damages, I consider grounds number three and five to adequately cover the points or points in dispute.  I reproduce here grounds No. 3 and 5 which read: E
   "Ground No. 3 - That the applicant's complaint or report to the Police was made honestly and in a good faith and without any malice.  Therefore learned Magistrate erred in finding that the F report of the applicant to the Police was defamatory of the respondents and that the occasion was not privileged and that the report was motivated by some indirect and malicious intent. G
   "Ground No. 5 - That the respondents were arrested put in the Police lock-up, and later charged by the Police before the Musoma Urban Court while they were executing their normal duties to detect crimes as testified by one of the plaintiffs/respondents witness one Lazaro Milobo (PW 2)". H
It is not in dispute that the appellant made a report to the police to the effect that the respondents were threatening to kill the appellant.
It is also not disputed that the police after receiving the report, arrested the respondents and charged them with the offence of Abusive language and brawling and threatening I violence.

It is also not disputed that the respondents were acquitted after a full trial. A
The law on this issue is as stated on page 219 and 218 of Gatley on Libel and Slander sixth edition.  On page 219 it states:
   "It is a settled rule or principle of law that where an individual gives information or makes a B statement to an officer of the law, whose duty is to detect and prosecute criminals, to the effect that someone has committed a crime, such information or statement has the protection of privilege.  This is so in the best interests of society, and the repression of crime could not C otherwise be enforced".
And on page 218 it says:
   "When it comes to the knowledge of anyone that a crime has been committed, a duty is laid on D that person, as a citizen of the country, to state to the authorities what he knows respecting the commission of the crime, and if he states only what he knows and honestly believes, (emphasis is mine) he cannot be subjected to an action of damages merely because it turns out that the person as to whom he has given information is, after all, not guilty of the crime" E
In this case the most important point for consideration is whether the appellant honestly believed that the respondents were planning and uttering threats to kill him.  An answer to this can only be ascertained from the evidence and the circumstances surrounding the F whole case.  Now under what circumstances did the appellant report the matter of the alleged threats to kill to the police?  The appellant's statement as to how he came to report the matter is contained in his short evidence in which he said and I quote: G
   "I remember on 22/2/79 at about 2.00 a.m. the plaintiff came to my house, he made arrangements with one Mgine who opened the door.  He said Mgine had earlier informed me that the plaintiffs were intending to kill me because I had instituted a case against them where H I was claiming a large sum of money.  By this the partnership business was found running into problems and there was a case pending in court.  They talked with the said Mgine for quite long but their plan was foiled when they heard people coming to the mosque.  The following day I got the whole story from the said Mgine. The following day I reported the matter I to the police and the plaintiffs were arrested and charged".
 
According to P.W. 1 - Lazaro who was the police officer to whom the appellant A reported, the report was made on 22/2/79 and the respondents were arrested and charged on 23/2/79.  From the time lapse, it appears that the police did not conduct its own investigations into the allegations.  The police must have taken the appellant's word and trusted that it was true and prosecuted the respondents.  The police were entitled to B act on the word of the appellant as they would have no cause to think that the report was false and actuated by malice against the respondents.  This was particularly so because the alleged threat was made to the appellant himself.
From the evidence, the appellant claimed that the respondents went to the premises C where he lived and had intended to harm him had it not been for the people who were going to mosque for prayers.  According to the appellant the respondents had made arrangements with one Mama Mgine and that it was this Mama Mgine who informed the appellant about the whole plan.  This is to say that this information that the respondents D had uttered threats that they would kill the appellant, was not from the appellant's own knowledge.  From the evidence Mgine was the source of the information.  She was the one who talked and with whom the respondents had planned to kill the appellant.  Her E evidence was most important.  The appellant could not expect his evidence to have any base without the evidence of Mgine who, according to him was the source of the information.  Failure to call this woman as a witness, clearly shows that what the appellant was saying was mere fabrication just to get the respondents into unnecessary F trouble.  It is on the evidence of Mgine that the court could decide whether the appellant honestly believed the truth of what he was told and whether his honest belief was founded on some sort of reasonable basis.  For if the appellant's belief is so groundless, the court may come to the conclusion that the appellant did not honestly believe the G statement to be true.  In this case the appellant has to show that he honestly believed both what he told the police and by reporting to the police what in all probability appear to be mere fabrication, he was actuated by nothing else except malice against the respondents. The appellant had no reasonable or probable cause for making the report. H As the appellant himself stated, he had filed a suit against the respondents concerning some partnership property.  They were not on good terms.  It is quite possible that the appellant did not wish the respondents to continue running the partnership business. It can not therefore be said that the learned trial magistrate was wrong in finding that the I appellant's complaint to the police was baseless and that it was maliciously made. The

respondents were entitled to damages.  As to the complaint that the amount of Shs. A 15,000/= awarded to both respondents is excessive, the appellant has not shown that the learned trial magistrate acted on wrong principles or indeed the amount is too excessive taking into account the whole claim.  I would dismiss the appeal with costs to the respondents.
B Appeal dismissed.

C