Chris Kadungure v Junaid Pervaiz

### Preamble
1
HH 552-23
HC 7137/21
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CHRIS KADUNGURE

versus

JUNAID PERVAIZ

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE, 20 & 21 October & 16 November 2022 & 13 October 2023

Civil Trial – Damages for Malicious Prosecution

Mr G Mupanga, for the plaintiff

Mr T L Mapuranga, for the defendant

MUSITHU J: The plaintiff sued the defendant herein for damages for malicious prosecution. The relief sought is set out in the summons and declaration as follows:

“The plaintiff’s claim is for:

damages in the sums of:

ZWL $18,000,000.00 arising from the malicious prosecution and abuse of proceedings by the defendant together with interest at the prescribed rate from the date of judgment to date of payment in full.

USD$6,100.00 being provable legal expenses charged by the plaintiff’s legal practitioners at the time for prosecuting his appeal against conviction and sentence together with interest at the LIBOR rate applicable on the date of payment calculated from the date of judgment to the date of payment in full.

Costs of suit.”

The defendant made an application for absolution from the sentence following the closure of the plaintiff’s case. In judgment HH 822/22 handed down on 16 November 2022, I dismissed the application for absolution from the instance and the matter proceeded to the defendant’s case. At the conclusion of the trial, I reserved judgment which I hereby render.

The issues for Trial

The agreed issues for trial were recorded in the signed joint pre-trial conference minute as follows:

Whether the defendant had any basis for implicating the plaintiff in the theft of his money on 26 July 2016;

Whether the arrest, detention, prosecution, conviction and sentence of the plaintiff by the lawful authorities was procured by the defendant maliciously and without reasonable and probable cause;

Whether or not the defendant is liable to pay the plaintiff’s alleged damages and legal costs, and if so to what extent.

The Plaintiff’s Case

The background to the claims is as follows. The plaintiff was arrested by the police on 15 August 2016 on a charge of robbery and placed on remand at the Harare Magistrates Court for a period of 73 days from 15 August 2016 to 27 October 2016. He was thereafter released on bail. Thereafter, the matter went on trial and the plaintiff was found guilty and sentenced to five and half years in prison. He was later to be released on bail pending appeal after spending 11 months in prison. The plaintiff was subsequently acquitted on appeal on 1 April 2021, apparently after the Prosecutor General conceded that there was no evidence linking him to the commission of the offence.

The plaintiff avers that his arrest, detention and the subsequent prosecution, conviction and sentence were all actuated by malice on the part of the defendant. The defendant had abused the criminal justice delivery system in causing his arrest and malicious prosecution.

The plaintiff narrated the events leading to his arrest and subsequent prosecution as follows. On the day of his arrest, he had accompanied a friend, one Dumisani Sithole to the Rottenrow Magistrates Court. At the court premises, they met officers from the Criminal Investigations Department (CID). The officials enquired about the whereabouts of his son, Kelvin Makiyi. They informed him that they were looking for him in connection with some offence that he had committed.  He told them that his son was at Waverly Blankets in Sunningdale, Harare. The officers requested him to accompany them to his son. He called his son to verify if he was still in Sunningdale and to get him to describe what he was wearing. The plaintiff called Kelvin who confirmed that he was still in Sunningdale. He also confirmed that he was wearing green trousers and a white shirt.

When they got to Sunningdale, the plaintiff pointed him out to the officers who proceeded to arrest him. They proceeded to Harare Central Police Station where the plaintiff learnt that Kelvin had committed a crime of robbery. The plaintiff was made to wait in one of the offices while the officers were preparing the necessary paperwork for Kelvin to be detained in police cells. At that stage, the defendant herein came into one of the offices and briefly spoke to one of the police officers. After the defendant’s departure from the office, the plaintiff was then informed that he was also being implicated in the robbery and the police were preparing the relevant State papers in order to bring him before the court for initial remand. It was at the point that a statement was being recorded from him that he was informed that an Indian national, the defendant herein, who had lost funds in a robbery had identified him as one of the assailants.

The plaintiff claims that following his arrest, he was taken to court on a charge of robbery. It was being alleged that he and his colleagues robbed an Indian national of US$3 500. The defendant appeared in court as a witness and he identified the plaintiff as the driver of the getaway car that was at the crime scene. The defendant’s colleague who also appeared as a witness did not identify the plaintiff as one of the suspects at the crime scene. According to the plaintiff, the reason why the defendant implicated him was because amongst the other assailants, he considered him to be the only one with the means to refund him his money. The plaintiff denied any involvement in the robbery.  He claimed that the people who were involved are those from whom recoveries were made by the police. These people had also admitted to having robbed the defendant.

The plaintiff was asked to comment on the finding by the criminal court that in finding him guilty, it had considered his call history with the other accused persons at the time the offence was committed. His response was that he had indeed spoken to his son and his friend in connection with some family matter. Although his conviction was based on the call history, it is what the defendant had said in court and had also caused to be published in the media that caused the damage to his reputation. Even if the criminal court had acquitted him, he was still going to sue the defendant for causing his malicious prosecution because of the false allegations that he made against him.

According to the plaintiff, he left prison a broken man. One of his three wives had deserted him.  His kids had dropped out of school. People in the community regarded him as a dangerous criminal having read about his case in the media. He became an outcast in society.

The applicant paid US$6 100 in legal fees to the law firm that prosecuted his appeal. His farming activities collapsed and his joint venture partner in the farming venture walked away with everything.

Under cross examination, the plaintiff admitted that his son had been convicted of the robbery. Of the six accused persons, he personally knew three of them that is his son Kelvin Makiyi, Fortune Sibanda and Kundai Makwarimba. Though the recorded police statements indicated that the plaintiff was implicated by Kundai Makwarimba, he denied that it was on the basis of that implication that he was sent to prison.

The plaintiff denied the version of events by one of the arresting officers, Brian Mageta who told the criminal court that the plaintiff and his accomplices were arrested before the CID officers knew of the defendant’s report at Milton Park Police station. Another arresting officer, one detective Chikungwa had also told the criminal court that the plaintiff was implicated by the other co-accused persons as the one who handled the planning and the deployment of the accused persons before the robbery. The plaintiff admitted that when he cross examined the defendant in the criminal court, the defendant insisted that he saw the plaintiff at the crime scene as he was driving off.  During that exchange in the lower court, the defendant denied any suggestions that it was the police who told him about the plaintiff.

The plaintiff admitted under cross examination that in its judgment, the criminal court did not rely on the evidence of the identification of the plaintiff by the defendant in convicting him. The concession by the State which led to the quashing of his conviction and the setting aside of his sentence made no reference to the defendant or his evidence. The plaintiff also admitted that it was not the defendant who placed his call history before the criminal court.

The Defendant’s Case

The defendant appeared as the sole witness in his own case. His evidence was as follows. He is a Pakistan national who is married to a Zimbabwean. He operated an entity called Jaran Enterprises.  At the material time, that entity was in the business of supplying toiletries and groceries. It had a warehouse located in the Workington Industrial area of Harare. On Tuesday 26 July 2016, he intended to deposit a sum of US$56 800 at a local bank located in the Belgravia area of Harare. From the warehouse he decided to pass through his cousin’s residence which is located in the Belvedere area to change cars since the one he was driving had developed some fault. From the warehouse he drove along Coventry road, and then turned into Bishop Gaul, which is close to the Dairibord Zimbabwe (Pvt) Ltd offices.

As he turned into Bishop Gaul, he saw a Police Check Point. There were two male police officers in police uniform. One of the officers waived him to stop and asked for his driver’s license. The other officer remained standing next to a silver car which was parked next to the check point. The one who approached him told him that he wanted to search his car.  He also asked the defendant to show him the fire extinguisher amongst other things. The defendant showed the officer everything and allowed him to search the car.  After searching the car, the officer went and spoke to the other officer who was standing next to the silver car.  He came back to the defendant’s car and asked to search the car again. He searched the car twice until the defendant asked if something was wrong. The officer’s reply was that he was just doing his job.

In the course of searching the car, the officer found the bag with the cash. The two officers started shouting at the defendant accusing him of being involved in money laundering. The defendant told them that he was going to the bank to deposit the cash. The two officers told him that they would have to go to the bank together with him just to confirm that he indeed wanted to deposit the money. The defendant followed them to the silver car, but the two officers jumped into the silver car and it sped off leaving him behind shell shocked. The two officers made off with the defendant’s car keys that had been removed from the ignition by the first police officer who had searched the defendant’s car.

According to the defendant, there was a third man who was seated in the driver’s seat of the getaway car. This one was not wearing a police uniform.  Initially, the defendant thought that it was just another motorist who had been stopped by the police just like him.  On being asked whether he remembered the driver of the car, the defendant pointed to the plaintiff who happened to be sitting in the gallery during the proceedings.  According to the defendant, his companion, who was with him in the car on the fateful day, one Sheik, also later recognized the plaintiff as the driver of the getaway car during the criminal trial.

After the incident, the defendant went to lodge a report at Milton Park Police Station. The police officers at the station recorded his statement. At that point the defendant was still in a state of shock and fearing for his family. When he was asked how much money he had lost, he only mentioned a figure of US$3 800 instead of US$56 800.

During the evening of Saturday 30 July 2016, the defendant received a call from a CID officer by the name Nemaisa from Harare Central Police Station. The officer informed him that the police had apprehended some suspects and they wanted him to come and identify if they were the ones who robbed him. Since it was late in the evening, they agreed that they meet at the Harare Central Police station the following morning around 06:00hours. The defendant met officer Nemaisa at the Harare Central Police Station car park, where he was informed that they needed him to identify the people who robbed him. The defendant did not trust the officer since the people who had robbed him were also police officers. It was only after Nemaisa showed him his car keys that had been take away by the robbers that the defendant opened up and told the officer the true story including the actual amount he had lost in the robbery.

The defendant was assigned officers who took him to Milton Park Police Station where a statement was recorded incorporating the correct amount that defendant had lost. From Milton Park Police Station they came back to Harare Central Police Station where the police officers recorded another statement from the defendant. The defendant claims that he only identified the assailants in court and not at the police station. Those he managed to identify were the first assailant who had searched his car at the scene of the robbery and the plaintiff who drove the getaway car.

The defendant denied making a criminal complaint against the plaintiff, insisting that he only saw him for the first time in court.  He further denied initiating the prosecution of the plaintiff. He reported a robbery, but never mentioned the name of any suspect.  It was police detectives who called him and informed him that they had arrested a suspect. Nemaisa and his team actually arrested the assailants before they even knew that the defendant had made a report at Milton Park Police station. They even knew the correct amount that he had lost.

Under cross examination, the defendant stated that at the time of the robbery, he was staying in Avondale.  He had a cousin brother who stayed in Belvedere where he intended to change cars. Asked how he managed to identify the driver of the getaway as the plaintiff since he was seated in the car, the witness stated that he managed to see him clearly when he followed the first officer that had confiscated his licence to the parked car. The defendant denied that the police informed him that the plaintiff was the father to one of the suspects, and maintained his version that he first identified the plaintiff at the criminal court.

The Plaintiff’s Closing Submissions

In his closing submissions the plaintiff averred that the defendant was intent on causing his arrest and imprisonment.  Apart from being the father of one of the suspects that had already been arrested for the offence, the plaintiff was the only one with the financial means to pay the money that the plaintiff lost. The defendant could not have positively identified the plaintiff at the crime scene since he only saw him from behind.  Further, had he been able to identify the robbers, then he would have given their description to the police at Milton Park Police station when the events of the robbery were still fresh in his mind. It was also ironic that the defendant failed to identify the two robbers who posed as policemen, yet there were close to him, but managed to identify the plaintiff who was seated in the car.

It was also strange that the defendant could still identify the plaintiff some six years later from the time the robbery was allegedly committed. The plaintiff went through the ordeal of a prosecution at the instance of the defendant who pointed out at him as one of the robbers at the CID Homicide offices and during the criminal trial at the Magistrates Court.

It was submitted that on a balance of probabilities, and based on the evidence placed before the court, it was more probable that: the defendant initiated the plaintiff’s prosecution in the sense that he instigated it; the defendant had no reasonable or probable cause to instigate the prosecution; and that the defendant was actuated by malice. It was also common cause that the prosecution terminated in favour of the plaintiff and that the plaintiff suffered damages to his person, his fame and his property as a result of the prosecution.

It was submitted that the plaintiff’s version of events was so improbable and the probabilities were heavily staked against him in favour of the plaintiff. In determining whether the defendant instigated the prosecution of the plaintiff for the crime of robbery, the court was urged to follow the approach in the case of Nherera v Shah. In that case, the court held that the word “instigate” was wide enough to include the setting in motion of events that lead to the arrest of the person accused of criminal conduct.

As regards the quantification of damages, it was submitted that the sum of $ZWL18 million was quite modest considering the currency fluctuations besetting the economy. That amount would hardly compensate the plaintiff for the mental anguish and distress that he suffered while he went through the prosecution and his subsequent incarceration.  As regards the claim for legal expenses incurred in pursuing the appeal, it was submitted that the plaintiff need not prove that he paid the legal fees in full. The plaintiff was willing to pay whatever was required by his legal practitioner so long he could have his name cleared.

The Defendant’s Closing Submissions

It was submitted that the plaintiff had only managed to prove one of the requirements in order to succeed in a claim for malicious prosecution as set out in Nherera v Shah. These requirements were outlined in the said authorities as follows:

That the arrest, prosecution and detention was instigated or procured by the defendant;

That there was no reasonable and probable cause;

That the arrest, prosecution or detention was actuated by malice; and

That the prosecution failed.

The defendant described the plaintiff’s claim as somehow peculiar for the following reasons: The defendant was indeed robbed of US$56 800, which was not in dispute; he reported the loss to the police, which he was entitled to do; six people, who included the plaintiff were arrested and prosecuted for the robbery. The six were convicted. The plaintiff was the father of one of the robbers who remained convicted; the plaintiff was also a friend to two of the robbers and acquainted with one of the robbers. The defendant did not identify the plaintiff at the Police Station but in court during the criminal trial.

According to the defendant, the evidence on record showed that the plaintiff’s prosecution was initiated because: the detectives from CID Homicide received a tip off from reliable sources that someone had been robbed of a significant amount of money; the detectives were not aware of the defendant’s report at Milton Park Police Station; The police arrested one Dickson Morosi who implicated the plaintiff; Morosi also led to the arrest of Fortune Sibanda and Kundai Makwarimba; the defendant declined to participate in an identification parade of the suspects, and so he identified no one; the summary of the State case showed that the plaintiff was implicated by the other suspects, that is Dickson Morosi (accused 1), Fortune Sibanda (accused 2) and Fortune Makwarimba (accused 3); there. It was further submitted that there was no evidence that the defendant pointed out the plaintiff to the police, or that he acted in an overbearing manner towards the police so as to nudge them to arrest the plaintiff.

As regards the reasonableness of the cause to prosecute, it was submitted that after their investigations, the police were faced with accused persons who implicated the plaintiff as well as call records of the plaintiff which subsequently led to his conviction. During the criminal trial, the defendant identified the plaintiff and two suspects who had posed as police officers. The identification of the plaintiff in court by the defendant was not even considered by the court in convicting the plaintiff. The defendant denied that he was actuated by any malice towards the plaintiff. Had he done so, he would have instituted civil proceedings to recover his stolen money from the convicts or sought to enforce the order of restitution granted by the trial court.  As regards the acquittal of the plaintiff on appeal, it was averred that a verdict of not guilty did not necessarily mean that one was innocent.

Concerning the issue of damages, the defendant argued that the plaintiff had failed to prove its damages. It was argued that the plaintiff’s detention was caused by his call history and not the evidence of the defendant. The plaintiff had no previous reputation to talk of because he had been convicted on three occasions in the past. Two of the convictions were for assault and one for illegal possession of a firearm. The defendant further argued that the plaintiff was overcharged by his legal practitioners. In any event not entitled to recover any legal fees because he had no case against the defendant.

The Analysis

I now proceed to determine the matter on the basis of the agreed issues and the parties’ evidence.

Whether the defendant had any basis for implicating the plaintiff in the theft of his money on 26 July 2016

The parties differ on their version of events leading to the arrest and the prosecution of the plaintiff. The plaintiff insisted that his arrest was instigated by the defendant when he briefly appeared in one of the offices where the plaintiff was being held by the police at the Harare Central Police Station. After defendant’s departure, the plaintiff claimed that the police told him that he was also being implicated in that robbery. The defendant denied ever meeting the plaintiff in any office at the Harare Central Police Station. He insisted that he only identified the plaintiff in the criminal court during the trial.

The record of proceedings of the criminal trial was produced in court as an exhibit by consent. One of the key witnesses in the trial was a Detective Sergeant Brian Mageta from CID Homicide, Harare. He was one of the investigating officers. He told the trial court that his team first arrested the first accused person, Dickson Morosi, after being tipped that he was involved in a robbery. The first accused person made indications at the place where the offence was committed. The team then proceeded to Milton Park Police station to check if a report of robbery had been made. They established that the defendant had lodged a report of theft and not robbery at the said station.

Mageta’s version of events was also confirmed by another officer from CID Homicide, David Chikungwa. A further reading of the record shows that the plaintiff was implicated in the robbery by Dickson Morosi, Fortune Sibanda (who was second accused) and Fortune Makwarimba (third accused).

As already stated, the police actually arrested the plaintiff’s accomplices before they even knew the identity of the complainant. There is no indication in the record that the defendant identified the plaintiff as one of his suspects to the police. Under cross examination by the plaintiff in the criminal court, the defendant denied that he had given the plaintiff’s description to the police. In his evidence during the criminal trial, the defendant positively identified the second and third accused persons, as well as the plaintiff (fifth accused person) as the people who were at the crime scene.

In his judgment in the criminal trial, the trial magistrate heavily relied on the evidence of the fourth accused person Bekezela Masuku, which he described as giving “a trajectory of how the offence was planned and executed”. Further, the fourth accused person’s statement was also confirmed by a provincial magistrate, and could thus be safely relied upon. The court also relied heavily on the call history of the plaintiff herein which showed that he had communicated with the first, second, third and sixth accused persons around the time the offence was allegedly committed. The trial magistrate did not at any stage in his judgment, refer to the testimony of the defendant in his evaluation of evidence leading to the conviction of the accused persons.

Taking into account the totality of the circumstances leading to the arrest and prosecution of the plaintiff for the crime, as gleaned from the evidence placed before the criminal court, I am satisfied that it was not the conduct of the defendant that led to the arrest and prosecution of the plaintiff. The defendant did not identify any person when he lodged his report at Milton Park Police Station. Further, the police were not even aware of the defendant’s complaint when they made their first arrest.

The defendant only implicated the plaintiff for the first time when he identified him in the criminal court as he was testifying as a State witness. At that stage, the plaintiff had already been arrested and placed on remand on the basis of information that the police had obtained from an informant as well as the implication of the plaintiff by the other accused persons. The identification of the plaintiff by the defendant as an accomplice in the crime was not even considered by the court in its analysis of evidence. The court therefore determines that the plaintiff failed to prove, on a balance of probabilities that it was his implication by the defendant that caused his arrest, prosecution and incarceration.

Whether the arrest, detention, prosecution, conviction and sentence of the plaintiff by the lawful authorities was procured by the defendant maliciously and without reasonable and probable cause

In my analysis of the first issue, I determined that from a consideration of the evidence placed before this court and the record of proceedings of the trial court, the court was satisfied that the arrest, prosecution, conviction and incarceration of the plaintiff can hardly be attributed to the defendant. Nowhere in the evidence placed before this court and the trial court was it suggested that the police relied on any information supplied by the defendant to act in the manner they did.

Much of the evidence relied upon by the trial court was a result of police investigation. In fact, the police largely relied on the information that was supplied by the accused persons who were first arrested. They are the ones who implicated the plaintiff herein. The court also relied on the plaintiff’s call history with the other accused person. Again, that call history was an outcome of police investigation. The defendant was himself a beneficiary of an independent investigation by CID Homicide, who acted oblivious of the defendant’s own report at Milton Park Police Station.

The court finds nothing malicious or unreasonable in the report that was made by the defendant at Milton Park Police Station. It is common cause that the defendant was indeed robbed of a significant amount of money. The loss of the money, and the manner in which it occurred left the plaintiff shaken. After his loss, the plaintiff lodged a police report. Any other person who found himself in similar circumstances would have reacted likewise. After all, the offence had been committed by people wearing police uniform. I have already determined that when he lodged his report at Milton Park Police Station, the defendant did not identify any suspect.

From a reading of the record of the trial court it is clear to me that the plaintiff was not arrested on the basis of the defendant’s complaint. It was just fortuitous that after the arrest of the first accused person, the police decided to check with the local police that had jurisdiction over the area where the crime was committed following indications by the first accused person. The turning point was therefore the arresting of the first accused person. He is the one who opened the case for the police and gave them further leads that they acted upon leading to the arrest of the plaintiff and the other accused persons.

The court determines that the plaintiff failed to prove on a balance of probabilities, that his arrest, detention, prosecution, conviction and sentencing was procured by defendant maliciously and without reasonable and justifiable cause.

Whether or not the defendant is liable to pay the plaintiff’s alleged damages and legal costs, and if so to what extent.

Having determined that the defendant did not act unlawfully in making a criminal report at Milton Park Police Station, and that his conduct was not the proximate cause for the arrest and prosecution of the plaintiff, it follows that he cannot be held liable for damages suffered by the plaintiff. Even though the defendant made a criminal complaint, he did not identify any of the accused persons as a suspect.

The arrest of the accused persons, including the plaintiff, were triggered by events which were not connected to the report made by the defendant. By the time that the defendant identified the plaintiff as one of the persons present at the scene of the crime, the police had already concluded their investigations and referred the matter for prosecution without the defendant having identified any of the accused persons.

In short, no evidence was placed before the court to prove that the defendant’s conduct warrants that he be penalized through an award of damages against him. The defendant’s conduct was neither unlawful nor malicious.

Costs of Suit

The defendant’s counsel urged the court to dismiss the plaintiff’s claim with costs in the event of the court finding in favour of the defendant. Costs follow the event. I find no reason to deny the defendant his costs as the successful party herein.

DISPOSITION

Accordingly it is ordered as follows:

The plaintiff’s claim is hereby dismissed.

The plaintiff shall pay the defendant’s costs of suit.

Bhatasara Attorneys, plaintiff’s legal practitioners

Ahmed & Ziyambi, defendant’s legal practitioners