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Tanzania Breweries Limited v Msuku and Another (Civil Appeal No. 18 of 2000) [2003] TZCA 6 (16 April 2003)

.RTF of original document

IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(CORAM: RAMADHANI, J.A., MROSO, J.A., And MUNUO, J.A.)
CIVIL APPEAL NO. 18 OF 2000

BETWEEN
TANZANIA BREWERIES LIMITED ……………………… APPELLANT
AND
1. CHARLES MSUKU        ]
 2. YAHAYA MTETE                  ] ………………………... RESPONDENTS

 (Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam)
(Bubeshi, J.)
dated the 22nd day of November, 1999

 in

High Court Civil Case No. 156 of 1995
---------

J U D G E M E N T


MUNUO, J.A.:

         This appeal originates from Civil Case No. 156 of 1995 in the High Court of Tanzania at Dar-es-Salaam in which the respondents, the original plaintiffs, claimed special and general damages from their ex-employer, Tanzania Breweries Ltd., for malicious prosecution. The sum of Sh. 1,085,560/= special damages was awarded to the respondents on the 15.10.1996 by Mapigano, J. by a consent order and reserved the assessment of general damages. Later the quantum of Sh. 5 million general damages was awarded to each respondent by Bubeshi, J. on the 22.11.1999. Dissatisfied with the award of general damages, Tanzania Breweries Ltd. lodged this appeal.
         The suit for malicious prosecution arose from Economic Crime Case No. 3 of 1990 in the High Court of Tanzania at Tanga wherein the respondents, at the instigation of their appellant employer, were arrested and charged with criminal offences ranging from conspiracy to defraud to causing pecuniary loss to their employer. The charges were eventually terminated in favour of the respondents because the Director of Public Prosecutions entered Nolle Prosequi on the 28/7/1992. Thereafter the respondents instituted the suit claiming special and general damages for malicious prosecution.
         Mr. C. Tenga learned advocate represented the appellant. The respondents were represented by Mr. Semgalawe, learned advocate. The counsel for the appellant filed four grounds of appeal, to wit:
1.      
The trial Judge erred in law and in fact by holding that that the Respondents were entitled to general damages for [the]

reason that the Appellant did not challenge the evidence tendered.
2.      
The trial Judge further erred in holding that the evidence tendered by the Respondent was sufficient enough to award the Respondents general damages of Sh. 5 million each.
3.      
The trial Judge erred in law in awarding damages to the Respondents in the absence of proof on [the] balance of probabilities.
4.      
The trial Judge failed to appreciate the fact that the evidence tendered was not evidence in law.
We pointed out, during the hearing of the appeal that following the Consent Order of the trial Court on the 15.10.1996, the appellant accepted liability for malicious prosecution so the only issue for determination in this appeal is the propriety of the awarded general damages of Sh. 5 million for each respondent. The said Consent Order states:
gORDER
By consent judgement is entered in favour of the plaintiffs for the sum of Sh. 1,085,560/= being special damages claimed under para 7 of the plaint.
D.P. Mapigano
JUDGE
ORDER
The question of general damages is to come for mediation on 30/10/96.h
Para 7 of the plaint states:
g7.       By reason of the premises, the plaintiffs have suffered much physical and mental pain, and have been lowered in the estimation of their friends, and were prevented from attending to their business and incurred expenses in defending themselves from the said charge.
         The said charges are:
a.      
Professional fees paid to Advocates to defend the plaintiffs Sh. 1,000,000/=
b.      
Costs for transport from the plaintiffs homes at Iringa and Dar es Salaam to Court at Tanga.h
From the above Consent Order, it is clear in our minds that the special damages of Sh. 1,085,560/= covered the defence fees and transport costs pleaded in Para 7 of the plaint.
         The learned counsel for the appellant, Mr. Tenga, submitted that the learned trial Judge injudiciously exercised her discretion in assessing the general damages in dispute so the same should be reduced by this Court. It is the view of advocate Tenga that Sh. 1 million general damages for each respondent would have been justified.
         Mr. Semgalawe, learned advocate, urged the Court not to interfere with the discretion of the trial court for the same was judiciously exercised. He further contended that no wrong principle of law was invoked by the trial Court so the award of Sh. 5 million for each respondent ought not be interfered with. Counsel for the appellant prayed that the appeal be dismissed with costs for want of merit.
         As for the issue of the awarded general          damages of Sh. 5 million for either      respondent, we are of the considered     view that the said sum is adequate, fair         and not manifestly excessive. We had the         advantage of referring to Brazier,       Margaret, The Law of Torts 8th Edition,          Butterworths, London 1988 at Page 433    where the learned author had the         following to say about malicious         prosecution:
gc It is a tort maliciously and without reasonable and probable cause to initiate against another judicial proceedings which terminate in favour of that other and which result in damage to his reputation, person, freedom and property.h
We agree with the learned trial Judge that the respondents were humiliated, that they suffered mental anguish, and that they also suffered low esteem and disrepute during the sixteen days they stayed in remand before getting bail. In those circumstances we think the learned Judge was justified in awarding Sh. 5 million general damages to each respondent.
On the award of Shs. 5 million general damages, we found support in the case of Ngfhomango versus Mwangwa and Another Civil Appeal No. 1 of 1994, Court of Appeal of Tanzania at Dodoma [unreported]. In that case the appellant plaintiff, a teacher at Mpwapwa Teacher Training College at that time, sued the first respondent, the Principal of the College and the Attorney General, representing the government, their employer, for Sh. 2,201,762/= general damages for malicious prosecution. In that case the first respondent had instigated the police to arrest and prosecute the appellant for stealing Shs. 10,000/= from students. The charges were terminated in favour of the appellant in that he was acquitted. He then filed an action claiming general damages for malicious imprisonment from the respondents. The High Court, before Mwalusanya, J., dismissed the action for want of proof on the balance of probabilities. The decision of the High Court was reversed on appeal to this Court which held that ?
a)      
the first defendant had prosecuted the plaintiff maliciously because despite police advice that the dispute be resolved administratively, the first defendant
pressurized the police to conduct criminal proceedings.
b)      
The plaintiff was entitled to damages for malicious prosecution because he was charged without a reasonable or probable cause.
c)      
The defendants were jointly and severally liable for damages.
         The decision of the High Court was quashed and substituted therewith an award of Sh. 1.1 million general damages plus costs for the appellant plaintiff. In that case the teacher had stayed in custody for 24 hours whereas in the present case the respondents stayed in remand for sixteen days which justified a higher award of general damages.
         We also had the advantage of referring to the case of Martin versus Watson (1996) A.C. 74, (1995) 3 W.L.R. 318, (1995) 3 ALL E.R. 559. In that case the Bromley County Court had awarded Sterling ’3,500 (currently equivalent to 3.5 million Tanzania Shillings) to the appellant plaintiff, being general damages for malicious prosecution. The award was however quashed on appeal to the Court of Appeal in England thereby prompting the plaintiff to appeal to the House of Lords seeking the restoration of the awarded general damages. Allowing the appeal, the House of Lords held that ?
gTo deny a remedy to a person whose liberty has been interfered with as a result of unfounded and malicious accusations in such circumstances would constitute a serious denial of justice.h
Under the circumstances we are satisfied that no wrong principle of law was invoked by the learned trial judge in assessing and awarding the general damages of Sh. 5 million to each respondent. We find no cause to reduce the awarded damages. The appeal is accordingly dismissed with costs.
AT DAR-ES-SALAAM this 16th day of April, 2003.

A. S. L. RAMADHANI
JUSTICE OF APPEAL
J. A. MROSO
JUSTICE OF APPEAL
E. N. MUNUO
JUSTICE OF APPEAL
         I certify that this is a true copy of the original.



F. L. K. Wambali
DEPUTY REGISTRAR



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