This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 16 December 2021. The court a quo granted the respondent damages in the sum of US$30,000 for malicious prosecution and US$100,000 for malicious arrest and detention.The damages were to be paid ...
This is an appeal against the whole judgment of the High Court (the court a quo) handed down on 16 December 2021. The court a quo granted the respondent damages in the sum of US$30,000 for malicious prosecution and US$100,000 for malicious arrest and detention.
The damages were to be paid at the equivalent rate of the local currency of RTGS reckoned at the time of payment.
FACTUAL BACKGROUND
The respondent was the Chairman of the board of directors of Zimbabwe United Passenger Company ('ZUPCO'). He was also Vice-Chancellor of the Chinhoyi University of Technology and a member of the Zimbabwe Examinations Council and the Parastatals Advisory Council. He held various positions in other local and regional organisations.
The appellant had an interest in a company known as Gift Investments (Pvt) Ltd which supplied mini-buses to the Zimbabwe United Passenger Company (ZUPCO). The buses were supplied pursuant to a tender process approved by the State Procurement Board.
In November 2011, the respondent issued summons against the appellant claiming damages in the sum of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention, interest thereon at the rate of 5% per annum and costs of suit.
The respondent averred, that, the appellant had made allegations that he had, in his capacity as the Chairperson of the Zimbabwe United Passenger Company (ZUPCO) Board of Directors, solicited for a bribe from Gift Investments (Pvt) Ltd in order to facilitate the purchase, by ZUPCO, of 17 buses from the company.
The company had previously sold some buses to ZUPCO with the authority of the State Procurement Board.
Seventeen buses, painted in the corporate colours, remained in the company's stock. The Zimbabwe United Passenger Company (ZUPCO) had not placed an order for the buses which were not covered by the authority issued by the State Procurement Board.
He contended, that, the appellant made reports on the allegations to various people, high ranking Government officials, and institutions.
As a result of these allegations against him, he was arrested by the police on 21 March 2005 and detained on charges of corruption. He was arraigned before the Regional Magistrates Court, Harare for contravening section 3(1)(a)(i) of the Prevention of Corruption Act [Chapter 9:16]. The trial magistrate found him guilty and sentenced him to 3 years imprisonment of which one year imprisonment was suspended for a period of five years on condition of future good behaviour.
The effective sentence was 2 years imprisonment.
Aggrieved, the respondent filed an appeal before the High Court against both conviction and sentence.
On 19 November 2009, the High Court quashed the conviction and set aside the sentence. By then, the respondent had served the effective sentence of two years.
The claim for damages was instituted soon thereafter.
The respondent averred in his claim, that, he was subjected to humiliation from the time of arrest up to his acquittal. As a result of his arrest, prosecution, and imprisonment, at the instance of the appellant, he suffered injury to his reputation, both locally and internationally, and injury to his dignity. He was also deprived of his liberty. He lost his positions as the Vice Chancellor of Chinhoyi University of Technology and as the Chairperson of the Zimbabwe United Passenger Company (ZUPCO) Board of Directors.
The appellant admitted, in his plea, to having made the report to the police. He however denied having done so maliciously.
He averred that he only informed the police that the respondent had solicited a bribe from him, and the information was true.
He maintained that the decision to arrest the respondent was made by the police and not by him, after the police had formulated a reasonable suspicion that an offence had been committed. He also denied causing the prosecution of the respondent. He argued that the decision to prosecute the respondent was made by the Attorney General, in the exercise of his constitutional mandate. He averred that the decision to imprison the respondent was made by the trial magistrate after due consideration of the evidence placed before her during trial.
At the trial, the appellant applied for absolution from the instance at the close of the respondent's case. The appellant submitted, that, the respondent had no prima facie case against him. The court a quo granted the application. It held that there was evidence that the respondent had solicited for a bribe. It further held that the respondent failed to show how he had arrived at the damages he was claiming.
Disgruntled by the decision, the respondent noted an appeal before this Court under SC634/19. He argued that the court a quo had misdirected itself in granting the appellant absolution from the instance. This Court determined the appeal in (Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19) (Nherera v Shah).
FINDINGS OF THIS COURT IN NHERERA v SHAH SC51-19
The court made the following findings:
(a) In order to succeed in his claim for damages, the respondent was required to prove four requirements, being that:
(i) The arrest, prosecution, and detention were instigated or procured by the defendant;
(ii) There was no reasonable and probable cause for his arrest, prosecution, and detention;
(iii) The arrest, prosecution, or detention was actuated by malice; and
(iv) The prosecution failed.
(b) There was sufficient evidence before the court a quo, that, the appellant had instigated or procured the respondent's arrest. The appellant had admitted, in his plea, that he had informed the ZUPCO Board, the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, and the then Minister of State Security, Mr Goche. He had also admitted, in the plea, that he made a report to the police.
He further admitted that he was granted immunity from prosecution by the police and the Attorney General so that he would assist in the investigation of the allegations he had made against the respondent and assist in a successful prosecution of the respondent;
(c) There was no evidence suggesting that the respondent had attempted to solicit for a bribe from Gift Investments. The appellant did not, prima facie, have reasonable and probable cause for the respondent's arrest or prosecution;
(d) The court a quo seriously misdirected itself in relying on evidence adduced in the Magistrates Court during the respondent's prosecution which was not adduced and tested before it. This was particularly so where the criminal proceedings had been set aside by the High Court, on appeal, on 19 November 2009;
(e) The judgment of the High Court, quashing the respondent's conviction, was extant. The court a quo should not have ignored it. Following the judgment of the High Court, the requirement that the prosecution had failed had therefore been met;
(f) The question of malice could only be determined after the appellant's testimony in his defence. The appellant had disputed, during the cross examination of the respondent, that he had made a report to the police. There was therefore need for putting the appellant on his defence so that he would, among other issues, explain the inconsistency between his admission in his plea, that he denied under cross-examination of the respondent that he ever made a report to the police;
In the final analysis, the court held that the respondent had established a prima facie case against the appellant. It concluded that the court a quo ought to have dismissed the application for absolution from the instance. It ordered as follows:
“1.The appeal be and is hereby allowed with costs.
2. The judgment of the court a quo is set aside and in its place the following substituted:
'The application for absolution from the instance be and is hereby dismissed with costs.'
3. The matter is remitted to the court a quo for continuation of the trial proceedings.”
PROCEEDINGS BEFORE THE COURT A QUO
After the above findings by this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, the trial proceeded before the court a quo with the appellant testifying.
The appellant adopted his plea, his testimony in the criminal proceedings against the respondent in the Magistrates Court, and affidavit he deposed to on 27 July 2006 as part of his evidence on oath. His evidence was as follows:
In 2005, the respondent demanded a US$5,000 bribe, per bus, for the Zimbabwe United Passenger Company (ZUPCO) to flight a tender for the purchase of buses. He did not make a report to the police as alleged by the respondent. He, however, informed a number of people about the respondent's conduct. These included the ZUPCO Board, the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, the then Minister of State Security, Mr Goche, and some Central Intelligence Officers.
He informed the police, sometime in April 2005, that the respondent had solicited for a bribe in 2003 to facilitate the renewal of a lease agreement between Gift Investments and ZUPCO. He had paid the respondent and Bright Matonga a total of $20,000. The respondent was arrested in relation to the 2005 solicitation after he made reports to the Government officials.
DETERMINATION BY THE COURT A QUO
At the conclusion of the trial, the court a quo made the following findings:
The findings by the Supreme Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19 were binding on it.
The Supreme Court had determined that the appellant placed information before a police officer that the respondent had solicited a bribe from him leading to the arrest, prosecution, and detention of the respondent. He did not, prima facie, have any reasonable and probable cause for doing so. The prosecution of the respondent had failed when his conviction was quashed on 19 November 2009. The respondent had, therefore, established a prima facie case on these issues.
The appellant was required to rebut the prima facie case.
As regards the appellant's testimony, the court a quo made the following findings:
The appellant was not a credible witness. He had admitted in his plea (which was now part of his evidence-in-chief) to making the report to the police leading to the arrest, prosecution, and detention of the respondent.
His oral evidence was inconsistent with his plea. The oral evidence was also at variance with his evidence during the respondent's criminal trial where he again admitted making the report.
It was common cause that the respondent was arrested, prosecuted, and imprisoned after the accusations of soliciting for a bribe were levelled against him by the appellant.
The appellant failed to disprove the prima facie case found to have been established by the respondent, on appeal, in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.
He had caused the arrest of the respondent without reasonable and probable cause and had done so in bad faith. His report to the police was therefore malicious.
The court a quo further held that the appellant's liability had been proved and the requirements for delictual damages satisfied.
It further held that the respondent suffered humiliation, ill-treatment in prison, and lost his employment due to the arrest, prosecution, and imprisonment.
The court a quo found, that, the respondent had not led evidence on how the sums of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention were arrived at. It however held, that, it still could make an award on the strength of relevant principles on the assessment of damages evolved from the jurisprudence coming out of our courts.
It held that the claim for $100,000 for malicious prosecution was extremely excessive, and, in its stead, awarded the respondent US$30,000. It also found the claim of US$300,000 for malicious arrest and detention to be excessive and awarded the respondent US$100,000 instead.
The court a quo further concluded that the damages would be paid in RTGS dollars at the interbank rate prevailing on the date of payment.
Aggrieved by the court a quo's decision, the appellant noted an appeal to this Court on the following grounds of appeal:
GROUNDS OF APPEAL
1. The court a quo erred and misdirected itself in law in holding that the dicta of this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, that there was, at the close of the plaintiff's case, a prima facie case (a test in any event not applicable to absolution from the instance) mitigating against the grant of absolution from the instance meant that if, in the court's opinion, the appellant had not controverted “the prima facie evidence of the plaintiff mutated to proof of the plaintiff's case on a balance of probabilities” in entertaining the first respondent's application as a court of first instance.
2. The respondent, having relied on the appellant's affidavit statement to the police, a statement that the appellant also adopted in his evidence before the court a quo in circumstances in which the High Court had found, on the basis of the same affidavit statement, in Zimbabwe United Passenger Company v Shah, which judgment was upheld on appeal to this Court, that the appellant had in fact paid a bribe to the respondent with whom he had a corrupt relationship, the court a quo erred in holding that the appellant had not controverted the “prima facie” evidence of the respondent.
3. A fortiori in holding as impugned in ground of appeal number 2 above, the court a quo infringed the appellant's right to the protection of the law guaranteed in section 56 of the Constitution of Zimbabwe.
4. For even the stronger reason, the court a quo erred in finding that the appellant's statement was not given in good faith and did not constitute reasonable and probable cause, but constituted a malicious and act wrongful instigating (sic) criminal proceedings against the respondent.
5. The court a quo, having held that the respondent had not led evidence on the financial prejudice he allegedly suffered in his defence of the criminal proceedings, or how he arrived at the sums claimed as damages, erred, in any event, in not granting absolution from the instance at the close of the trial in respect of the damages claimed.
6. The court a quo, having made a finding of the fact, and held in Nherera v Shah 2015 (2) ZLR 455 at 470C-D (H) that the respondent “did not attempt to show how the damages claimed were arrived at” which judgment was set aside on a different basis, and no further evidence having been led by the respondent since this finding, erred and misdirected itself and acted arbitrarily in awarding any damages.
7. In proceedings as complained of in grounds of appeal 5 and 5 (sic) above, the court a quo breached the appellant's right to the protection of the law protected and guaranteed in section 56(1) of the Constitution as well as the dictates of a fair trial contemplated in section 69(1) of the Constitution.
8. The court a quo erred in any event in awarding damages that are inconsistent with those awarded in comparable cases, and are, on the facts of the case, so outrageous that no court acting properly would have awarded the quantum of damages, and in a currency other than the legal tender of the Republic of Zimbabwe.
PROCEEDINGS IN THIS COURT
Submissions by the Appellant
The appellant abandoned grounds 3 and 7 which were raising constitutional issues not dealt with in the court a quo.
Counsel for the appellant submitted, that, notwithstanding the decision in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, the respondent did not establish his case on a balance of probabilities at the close of his case a quo.
Counsel argued, that, the Supreme Court had applied a wrong test in determining whether the appellant was entitled to absolution from the instance.
He argued that the respondent was required to establish whether, at the close of his case, there was evidence upon which a reasonable court, acting carefully, might have given judgment for the respondent on the issues before the court.
It was argued, that, the court had erroneously stated that the respondent needed to and had established a prima facie case.
It was further argued, that, the appellant had led evidence, in the form of a judgment of the High Court in Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 in which a finding had been made that the respondent had solicited from and was paid a bribe by the appellant.
It was further argued, that, this Court also held in Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20, that, the appellant had bribed the respondent and the then Chief Executive Officer of ZUPCO, in a bid to induce the renewal of a lease between Gift Investments (Private) Limited and ZUPCO from 01 January 2004 to 31 December 2009.
It was submitted, that, the facts in that case were centred on the same issues as in the present appeal.
It was further submitted, that, the findings in both Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 and Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20 constituted sufficient evidence to rebut the respondent's prima facie case.
It was argued, that, the findings in both matters established that there was a relationship of corruption between the appellant and the respondent.
Counsel argued, that, the appellant had rebutted the respondent's prima facie case and established, on a balance of probabilities, that, he had not maliciously instigated the respondent's arrest and subsequent prosecution and imprisonment.
Counsel for the appellant further contended, that, the court a quo erred in granting the respondent damages in circumstances where the respondent did not lead evidence justifying the quantum of such damages.
He argued, that, when the matter was remitted a quo, the respondent did not lead further evidence, and, particularly, on the damages that he sought.
It was further argued, that, the award for damages contravened the law in that it was denominated in United Dollars which was not the legal tender in use in Zimbabwe.
It was submitted that section 3(2)(b) and (c) of the Exchange Control (Exclusive Use of Zimbabwe Dollar for Domestic Transactions) Regulations 2019, Statutory Instrument 212 of 2019, SI212 of 2019 (the Regulations) proscribed settlement of any obligation, and demand of the payment of anything, in foreign currency.
Submissions by the Respondent
Per contra, counsel for the respondent argued, that, the respondent was not a party to Zimbabwe United Passenger Company v Jayesh Shah & Gift Investments (Private) Limited HH238-17 and Gift Investments (Private) Limited v Zimbabwe United Passenger Company & Jayesh Shah SC99-20.
It was further argued, that, the findings in those cases were not therefore applicable moreso as the respondent never had an opportunity to defend himself.
It was submitted that the findings related to the appellant's own confession to have paid the respondent a bribe. It was further submitted that the respondent could not be bound by the appellant's confession.
It was submitted, that, the judgment in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, being a judgment of the Supreme Court, was binding on the court a quo. The court a quo therefore did not misdirect itself when it held that it was bound by the Supreme Court judgment.
Counsel for the respondent submitted, that, the award of damages, by the court a quo, was made on the basis of the evidence on record as to the harm suffered by the respondent. He further argued, that, there was no need to lead evidence on the quantification of the damages as they could not be arrived at with mathematical precision.
He submitted, as regards the applicable currency, that the law does not preclude the granting of an award in foreign currency.
ISSUES FOR DETERMINATION
1. Whether or not the court a quo misdirected itself in holding that it was bound by the judgment in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.
2. Whether or not the court a quo misdirected itself in holding the appellant liable for damages for malicious arrest, prosecution, and detention.
3. Whether or not the court a quo misdirected itself in awarding damages in favour of the respondent in the absence of evidence from the respondent on how the damages were computed.
4. Whether or not it was competent for the court a quo to award damages denominated in United States dollars.
ANALYSIS
Whether or not the court a quo misdirected itself in holding that it was bound by the judgment in Nherera v Shah SC51-19
The appellant argued, that, the test in an application for absolution from the instance at the close of a plaintiff's case is not that there is a prima facie case, as held by this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.
It was submitted, that, the appropriate test is whether, at the close of the plaintiff's case, there is evidence upon which a reasonable court, acting carefully, might give judgment in favour of the plaintiff.
It was further submitted, that, the court a quo therefore misdirected itself in relying on the findings of the Supreme Court when it held that the respondent had established a prima facie case which the appellant was required to rebut in his evidence.
This Court set out, in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, the four requirements that the respondent was required to establish in order to succeed in his claim. It remarked at para 58 that:
“[58] In order to get judgment in his favour, a plaintiff must prove four requirements. First, that the arrest, prosecution, and detention was instigated or procured by the defendant.
The word 'instigate' is wide enough to include the setting in motion of events that lead to the arrest of the person accused of criminal conduct.
Google defines 'instigate' to mean to bring about or initiate an action or result. It also means to put in motion, lay the foundations of, sow the seeds of, activate.
The word 'procure' means to persuade or cause someone to do something.
The law requires that a defendant must have been actively instrumental in setting the law in motion. Simply giving a candid account, however incriminating, to the police, is not sufficient.
The test is whether the defendant did more than tell the detective the facts and leave him to act on his own: Econet Wireless (Pvt) Ltd v Sanangura 2013 (1) ZLR 401 (S), 408AB; Bande v Muchinguri 1999 (1) ZLR 476 (H), 484.
Second, a plaintiff must prove that there was no reasonable and probable cause.
Third, that the arrest, prosecution, or detention was actuated by malice.
Lastly, that the prosecution failed.”
It held that the respondent had satisfied the first requirement. It held that the evidence led before the court a quo established that the appellant, prima facie, set in motion the events that resulted in the arrest of the respondent.
The respondent had testified that the appellant had admitted, in his plea, that he made the report to the police. He had also made a report not only to senior Government officials but also to the Attorney General's Office. He further approached the Reserve Bank Governor, and had been given the sum of US$5,000 in order to entrap the respondent.
The court thereafter concluded that the court a quo ought to have dismissed the application for absolution from the instance. It then allowed the appeal. It further substituted the court a quo's judgment with an order dismissing the application for absolution from the instance.
The Supreme Court had spoken.
Decisions of this Court are absolute, as the Supreme Court is the final court of appeal in all matters, except in matters of a constitutional nature.
The court, in Kasukuwere v Mangwana SC78-23…, quoted with approval the case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited & Anor 2018 (2) ZLR 743 (CCZ)…, wherein it was held that:
“What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters. A decision of the Supreme Court, on a non-constitutional matter, is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct.
The correctness of the decision at law is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter.”…,.
The Supreme Court decision, being final, was correct.
Because of the principle of stare decisis, the decision was binding on the court a quo. The principle of stare decisis is that a lower court cannot depart from findings on questions of fact and law made by a superior court: see Denhere v Denhere & Anor CC09-19; Diana Farm (Pvt) Ltd v Madondo NO & Anor 1998 (2) ZLR 410 (H).
The question pertaining to absolution from the instance at the close of the respondent's case, having been decisively dealt with by a Superior Court, the court a quo could not depart from the judgment in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.
It therefore correctly determined, that, it was bound and that put to rest the questions on whether the respondent had established a prima facie case that the appellant, without reasonable cause, caused the arrest, prosecution, and detention of the respondent by making a patently false report.
It is therefore an exercise in futility to delve into the submissions by the parties on the correctness or otherwise of the Supreme Court decision.
All that the court a quo was therefore required to do was to determine whether, following the appellant's evidence in rebuttal, the respondent had established his claim on a balance of probabilities.
Whether or not the court a quo misdirected itself in holding the appellant liable for damages for malicious arrest, prosecution, and detention
The appellant argued, that, he led evidence that controverted the prima facie case held in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19 to have been established by the respondent.
It contended, that, the court a quo misdirected itself when it made a finding that the prima facie evidence of the respondent mutated, at the end of the trial, to proof on a balance of probabilities.
It further contended, that, the court a quo should not have found the appellant liable for damages for malicious arrest, prosecution, and detention.
At the conclusion of the trial, the court a quo considered the respondent's evidence together with the appellant's evidence. It arrived at the conclusion, that, the respondent had indeed established that the appellant had instigated the respondent's arrest, prosecution, and detention.
Its findings were distinct from, but consistent with, the findings of this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19.
It related to the admissions made by the appellant in paragraph 5.1 of his plea, that he reported to the police that the plaintiff had solicited for a bribe and that the police did not have an obligation to act on the report unless they formulated a reasonable suspicion that an offence had been committed. It held at pages 7 to 8 that:
“None of the admissions made by the defendant were withdrawn, neither was there any attempt to amend the plea. More importantly, the defendant did not explain in his evidence, or in his closing address, why what was clearly a confessionary pleading could be contradicted by viva voce evidence given by the same pleader. The impression created by the defendant is that an admission made in pleadings could be cast away by the presentation of evidence contradicting it.
The law relating to admissions must be taken as settled in this jurisdiction.
A party to civil proceedings may not, without the leave of the court, withdraw an admission made, nor may it lead evidence to contradict any admission the party has made. By the same token, a party cannot be allowed to attempt to disprove admissions it has made.
This is by virtue of section 36 of the Civil Evidence Act [Chapter 8:01] which also makes it unnecessary for any party to civil proceedings to disprove any fact admitted on the record of proceedings. Subsection (4) of section 36 also makes it clear that it shall not be competent for any party to civil proceedings to disprove any fact admitted by him on the record of proceedings….,.
Accordingly, the fact that the defendant placed information before a police officer, and that he made a report that the plaintiff solicited a bribe from him is taken for granted. The plaintiff did not have to prove that fact. Equally, it was not competent for the defendant to attempt to disprove what was in fact admitted by him on the record of proceedings.
In any event, whatever my views may have been on the admission made would have counted for nothing because the Supreme Court has already made conclusive findings on it.”
The remarks by the court a quo clearly establish, that, the court did not mutate the findings of this Court in Nherera v Shah 2019 (1) ZLR 462 (S); SC51-19, that the respondent had established a prima facie case, to proof of his case on a balance of probabilities.
It arrived at its own separate decision.
The appellant, however, chose to harp on the remarks of the court a quo at p9 that:
“The Supreme Court has said so, and the prima facie evidence of the plaintiff mutated to proof of the plaintiff's case on a balance of probabilities.”
The appellant has, in no doubt, chosen to turn a blind eye to the context in which the remarks were made in paragraph 30. The remarks came at the end of an analysis by the court a quo of all the evidence that had been adduced before it.
The appellant therefore sought to gain mileage out of just that one sentence.
