Mahija Salehe Mohamed vs Neema Peter Mseke @ Neema Mziray (DC. CIVIL APPEAL NO. 24700 OF 2024) [2026] TZHC 2632 (22 May 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (TANGA SUB-REGISTRY) AT TANGA DC. CIVIL APPEAL NO. 24700 OF 2024 (Arising from Judgment and Decree in Civil Case No. 12 of 2023 (Ref. No. 20231006000531514) of the District Court of Tanga, at Tanga; Before Hon. Majani H.A., SRM; Dated on 19th September, 2024) MAHIJA SALEHE MOHAMED ............................................................ APPELLANT VERSUS NEEMA PETER MSEKE @ NEEMA MZIRAY.....................................RESPONDENT JUDGMENT 14th April & 22n d May, 2026 M. J. CHABA, J. Before the District Court of Tanga, at Tanga, the appellant herein, one Mahija Salehe Mohamed, was the Plaintiff in Civil Case No. 12 of 2023 (Ref. No. 20231006000531514), wherein she instituted a suit against the respondent, Neema Peter Mseke @ Neema Mziray (the defendant), claiming special and general damages arising from alleged malicious prosecution, unlawful arrest, and unlawful detention. the respondent/defendant vehemently resisted the claim by filing a written statement of defence, denying the allegations in total. Upon hearing the matter on its merits, the learned trial Magistrate, in a judgment delivered on the 19th day of September, 2024, found in favour of the respondent and consequently dismissed the appellant's suit, with no order as to costs. For better appreciation of the present appeal, I find it apposite to briefly set out the facts giving rise thereto, as may be gathered from the record of appeal, as follows: the appellant/plaintiff and the respondent/defendant were neighbouring businesswomen carrying on trade at Tangamano Market in Tanga. Owing to disagreements relating to business space and market leadership, the relationship between the parties became strained and acrimonious. It is borne out from the record that on 9th June, 2023, the Respondent lodged a complaint at Chumbageni Police Station alleging that the appellant had caused disturbance through the use of a loudspeaker. Consequent upon the said complaint, the appellant was arrested and detained for several hours before being released on police bail upon condition that she report back to the station on 12th June, 2023. The appellant duly complied with the said condition, though the respondent failed to appear. Subsequently, on 10th July, 2023, the appellant was arraigned before the Tanga Urban Primary Court in Criminal Case No. 289 of 2023 and charged with the offence of creating disturbance, contrary to section 89(l)(b) of the Penal Code, [Cap. 16 R.E. 2022], now [R.E. 2023]. Upon conclusion of the criminal proceedings, the appellant was acquitted on 26th July, 2023, the trial court having found that she was not the perpetrator of the offence charged. Following her acquittal, the appellant instituted the aforementioned civil suit before the District Court of Tanga, at Tanga seeking, inter-a/ia, a declaration that her arrest, detention, and prosecution were unlawful and malicious; compensation in the sum of TZS. 10,000,000/= for unlawful detention; TZS. 50,000,000/= for malicious Page 2 of 25 prosecution; TZS. 20,000,000/= for loss of business; together with general damages to be assessed by the trial court. in her written statement of defence, the respondent maintained that she reported the matter to the police upon reasonable and probable cause, honestly believing that the appellant had committed a criminal offence. She further contended that, the mere failure of the criminal case did not ipso facto render her liable for malicious prosecution, particularly in view of the fact that a prima facie case had been established against the appellant during the criminal proceedings, thereby necessitating her to enter upon her defence. The matter thereafter proceeded to a full trial following completion of pleadings and the unsuccessful mediation efforts. In proof of her case, the appellant testified as PW1 and called two additional witnesses, namely, PW2 (Sophia Hassan Kimangale), a fellow businesswoman at Tangamano Market, and PW3 (Rashid Wendo Mwakijiru), the husband of the appellant. The appellant also tendered documentary exhibits comprising minutes of the Executive Committee meetings dated 25/02/2022 and 01/03/2022 marked as Exhibit PI; minutes dated 01/05/2023 marked as Exhibit P2; and a copy of judgment in Criminal Case No. 289 of 2023 marked as Exhibit P3. On the other hand, the defence case rested solely upon the testimony of the Respondent herself, who testified as the lone defence witness. At the culmination of the proceedings, and in a judgment delivered on 19th September, 2024, the learned trial Magistrate dismissed the suit upon finding that the Page 3 of 25 appellant had failed to prove her claims against the respondent to the required standard. Undaunted by the said decision, the appellant has now preferred the present appeal before this court, advancing three grounds of complaint in her Memorandum of Appeal, which may be summarized as follows: 1. That\ the trial court erred in iaw and facts upon finding that the Appellant was not maliciously reported to police and subsequently with malice prosecuted by the Respondent at Tanga Urban Primary Court; 2. That, the trial court erred in law for not addressing the issues raised by the Appellant in their final submission; and 3. That, the trial court erred in law upon concluding that the Appellant had failed to prove the case against the Respondent before it. It is on the basis of the aforementioned grounds of appeal that the appellant prays for this appeal to be allowed, the judgment and decree of the trial court to be quashed and set aside, and substituted with the judgment of this court granting the reliefs sought before the trial court, together with costs of this appeal and of the proceedings in the court below, and for such further or other orders as this Honourable Court may deem fit and just to grant. From the very outset, the respondent stoutly opposed the appeal, maintaining that the findings and conclusions reached by the trial court were proper, lawful, and ought not to be interfered with by this court. Page 4 of 25 At the hearing of the appeal, the appellant was represented by learned advocate, Mr. Yona Lucas of Cheluzinga Law Attorneys based and practicing in Tanga, whilst the respondent enjoyed the benefit of representation by learned advocate, Mr. Ahmad Abdallah of Chappa & Company Advocates, also practising in Tanga. Pursuant to the order of this court dated 23rd February, 2026, and by mutual consent of the parties, it was directed that the appeal be heard and determined by way of written submissions. This court wishes to place on record its appreciation to both learned advocates for their industrious, lucid, and comprehensive submissions, as well as for their commendable compliance with the timelines and directions issued by the court. In amplification of the grounds of appeal, learned advocate for the appellant, Mr. Yona Lucas, elected to argue all the grounds together. He commenced his submissions by outlining the essential ingredients of the tort of malicious prosecution, namely: that the criminal proceedings must have been instituted by the defendant; that the defendant acted maliciously and without reasonable and probable cause; that the criminal proceedings terminated in favour of the plaintiff; and that the plaintiff suffered damage as a result thereof. In support of this proposition, learned advocate placed reliance on Yohana Ngassa vs. Makoye Ngassa (Civil Appeal No. 13 of 2004) [2006] TZCA 417 (16 March 2006). He forcefully contended that, the appellant successfully proved her case before the trial court. Firstly, he submitted that although the respondent reported the appellant for the offence of creating disturbance, contrary to section 89(l)(b) of the Penal Code, Cap. 16, the evidence on record clearly demonstrated that the appellant, Page 5 of 25 her husband (PW3), the respondent herself, and other traders at Tangamano Market commonly used loudspeakers for purposes of advertising their businesses. According to the learned advocate, no evidence whatsoever was adduced to establish that the use of the loudspeaker by the appellant was intended to cause or create disturbance or breach of peace. Indeed, Mr. Yona Lucas pointed out that even the criminal court in Exhibit P3 acknowledged that no quarrel, fight, or disturbance occurred, save for the allegation that the appellant played a loudspeaker in a market where traders ordinarily used such devices for commercial advertisement. Secondly, learned advocate argued that the evidence on record revealed that the loudspeaker complained of was in fact operated by PW3, the appellant's husband, and not by the appellant herself. Despite this, the respondent singled out the appellant and caused criminal proceedings to be instituted against her without lawful justification. Thirdly, he submitted that even assuming, without conceding, that the appellant used the loudspeaker, the prevailing circumstances at Tangamano Market clearly showed that numerous vendors used loudspeakers for similar purposes. Consequently, the allegation that the appellant alone caused disturbance or breach of peace was unsupported by any reasonable or probable cause and was instead actuated by ill will and ulterior or hidden motives. Fourthly, he contended that the testimonies of PW1 (the appellant), PW2 (Sophia Hassan Kimangale), PW3 (Rashid Wendo Mwakijiru), and even DW1 (the respondent), established the existence of a longstanding dispute between the parties relating to business space and market leadership. According to him, this prior hostility constituted the true motive behind the respondent's report to the police. He faulted the trial court for holding that the existence of such disputes Page 6 of 25 constituted reasonable and probable cause for instituting criminal proceedings. In support of his contention, Mr. Yona Lucas referred this court to the case of Jeremiah Kamama vs. Bugomola Mayandi (1983) TLR 123, wherein it was underscored that prior rivalry or hostility between parties may demonstrate that criminal proceedings were actuated by malice rather than a genuine complaint. Additionally, learned advocate submitted that the complaint made to the police concerning the use of a loudspeaker in a public market was merely a pretext employed by the respondent to harass the appellant and gain collateral advantage arising from their longstanding disagreements. He therefore maintained that, the criminal proceedings were instituted maliciously and without reasonable or probable cause. To end up is submission, learned advocate urged this court to allow the appeal, set aside the judgment and decree of the trial court, and enter judgment in favour of the appellant for the reliefs sought in the plaint as hereinbefore alluded to. In opposing the appeal, Mr. Ahmad Abdallah, learned advocate for the respondent submitted that the appellant's suit before the trial court was founded on claims for unlawful arrest, unlawful detention, and malicious prosecution. However, according to hirn, in the course of advancing her submissions on appeal, the appellant effectively abandoned the claims relating to unlawful arrest and unlawful detention and instead concentrated solely on the claim for malicious prosecution. He referred this Court to Yonah Ngassa vs. Makoye Ngassa [2006] TLR 2006, wherein the court laid down the essential ingredients to be established in an action for malicious prosecution, namely: first, that the Plaintiff must have been prosecuted; secondly, that the Page 7 of 25 prosecution terminated in favour of the Piaintiff; thirdly, that the defendant instituted the proceedings without reasonable and probable cause; and fourthly, that the plaintiff suffered damage as a result of the prosecution. Mr. Ahmad Abdallah candidly conceded that the first and second ingredients had been established by the appellant. However, he strongly contended that the third ingredient, namely, proof that the respondent instituted the proceedings without reasonable and probable cause, was never established before the trial court. In support of that proposition, he placed reliance on Wilbard Lemunge vs. Father Komu & Another (Civil Appeal No. 8 of 2016) [2018] TZCA 195 (10 October 2018), to buttress his position. He further asserted that the appellant equally failed to estabiish the fourth ingredient of malicious prosecution, namely, proof of actual damage suffered as a consequence of the prosecution. Moreover, learned advocate invited this court to consider the import of section 8(2) of the Criminal Procedure Act, [Cap. 20 R.E. 2023], which provides, in effect, that no criminal or civil proceedings shall lie against any person in respect of damages arising from information furnished by him to the police. Guided by the said provision, learned advocate maintained that the Appellant had no lawful basis to sue the respondent merely on account of the information she reported to the police authorities. With regard to the fact that the criminal case terminated in favour of the appellant, the advocate submitted that an acquittal alone does not automatically entitle a party to damages for malicious prosecution. In support of this position, he cited the Page 8 of 25 authorities in Leornard Mwaipasi vs. Harison Ndembo Mbughi (Civil Appeal No. 3 of 2023) [2023] TZHC 15932 (22 February 2023) and Leornard Dominic Rubuye t/a Rubuye Agrochemical Supplies vs. YARA Tanzania ltd (Civil Appeal No. 219 of 2018) which, according to the advocate, elucidate the legal burden resting upon a claimant to prove the essential elements of his or her claim. In conclusion, Mr. Ahamad Abdallah urged this court to dismiss the appeal with costs. To rejoin, Mr. Yona Lucas, submitted that the first ground of appeal sufficiently encompasses the cause of action which, according to him, was erroneously dismissed by the trial court. He contended that the respondent's assertion that she merely acted upon the advice of market leadership in reporting the matter to the police neither absolves nor exonerates her from liability for malicious prosecution. He maintained that, the undisputed position on record is that it was the respondent who lodged the complaint against the appellant and thereby set in motion the criminal process which culminated in the appellant's arrest, detention, and eventual prosecution. Learned advocate further submitted that the evidence on record demonstrated a pattern of vindictive conduct on the part of the respondent. In that regard, he referred to the testimony of PW2, who stated, without being challenged in cross-examination, that another trader, namely, Yasin Mohamed Chikira, had similarly been subjected to police proceedings and detention following complaints lodged by the respondent. According to him, this conduct clearly revealed malice and an intention to harass fellow traders through criminal processes. Page 9 of 25 He highlighted that, the law is settled that a person who initiates or sets in motion criminal proceedings may properly be regarded as the prosecutor for purposes of an action founded on malicious prosecution. In support of this proposition, he referred this court to Andrew Basil Ngatunga vs. Laurent Martin @ Lowri (RM's Civil Appeal No. 5825 of 2024) [2025] TZHC 7413, wherein this court cited with approval the decision in Jeremiah Kamama vs. Bugomola Mayandi (supra) to the effect that a person who takes steps to set in motion legal processes for the prosecution of another may properly be deemed a prosecutor. It was his argument that, the mere fact that the respondent may have acted upon the advice of market leaders does not alter the legal position that she remained the complainant responsible for initiating the prosecution against the appellant. Mr. Lucas maintained that the accusations levelled against the appellant were actuated by malice arising from the longstanding disputes between the parties concerning business space and market leadership. He emphasized that, the respondent did not specifically controvert the appellant's submissions regarding the existence of prior disputes over the business plot, and that such omission amounted to tacit admission of the same. Counsel further submitted that the respondent's contention that reasonable and probable cause existed merely because the appellant insisted that the matter be taken to court after her arrest and detention was untenable. According to Mr. Lucas, the fact that the appellant demanded judicial determination after being arrested and confined at Chumbageni Police Station could not retrospectively validate what was otherwise a malicious complaint. On the contrary, he argued that the respondent's attempt to Page 10 of 25 mediate the matter at the police station after the appellant's detention demonstrated her own apprehension that the allegations could not withstand judicial scrutiny. Indeed, counsel noted, the criminal proceedings eventually established no wrongdoing on the part of the appellant. Learned advocate also contended that, in an action for malicious prosecution, it is immaterial who ultimately decided to proceed with the criminal case before the court, whether it be the State Attorney or a private prosecutor. The determinative issue, according to him, is who initiated and set the criminal law in motion. In the instant matter, Mr. Lucas insisted, it was the respondent who reported the matter to the police, and it is therefore her conduct which falls for scrutiny as to whether it was actuated by malice and devoid of reasonable and probable cause. Lastly, learned advocate submitted that the respondent's contention that the appellant failed to prove damages was misconceived. He pointed out that, the appellant testified that she was arrested on 09/06/2023 and detained at Chumbageni Police Station from 8:00 a.m., to 6:00 p.m., and that she was prevented from conducting her business while also being repeatedly required to report to the police in connection with the complaint lodged against her. According to counsel, such evidence sufficiently established suffering and injury occasioned by the prosecution. Reliance was placed on Said Seif vs. Mwajuma Hassan (Civil Appeal No. 120 of 2013) [2015] TZHC 2773 (4 December 201), wherein the court underscored that arrest and detention alone may constitute sufficient proof of suffering and damage in claims of this nature. Page 11 of 25 In light of the above submissions, Mr. Lucas prayed that this appeal be allowed with costs both in this court and in the trial court. Having thus summarized the rival positions advanced by the parties, I have carefully perused the record of appeal, duly considered the grounds of appeal, the submissions of learned advocates, as well as the authorities cited in support thereof. In my considered view, the sole issue falling for determination in this appeal is whether the appeal is meritorious. Put differently, this court is called upon to determine whether the respondent had reasonable and probable cause in setting the criminal process in motion against the appellant before the Tanga Urban Primary Court, and whether, in doing so, she was actuated by malice as alleged. This being a first appeal, I am alive to the settled principle of law that, sitting as a first appellate court, I am duty bound to re-appraise and re-evaluate the evidence on record afresh and arrive at my own independent findings and conclusions, while bearing in mind that I neither saw nor heard the witnesses testify before the trial court. There is a thick wall of authorities on this settled legal position, including Martha Wejja vs. Attorney General and Another [1982] TLR 35; Jamal A. Tamim vs. Felix Francis Mkosamali & the Attorney General (Civil Appeal No. 110 of 2012) [2013] TZCA 2327 (1 April 2013); Makubi Dogani vs. Ngodongo Maganga (Civil Appeal No. 78 of 2019) [2020] TZCA 1741 (21 August 2020); and Registered Trustees of Joy in The Harvest vs. Hamza K. Sungura (Civil Appeal 149 of 2017) [2021] TZCA 139 (28 April 2021), to mention a few. Page 12 of 25 For instance, in the latter case of Registered Trustees of Joy in The Harvest vs. Hamza K. Sungura (supra) the Court of Appeal at page 7 observed that: "On our part, we are in agreement with both learned advocates that it is part o f our jurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision " I shall therefore, be guided by this principle in the course of determination of this appeal. It is trite law that, for the plaintiff to succeed in a claim founded on malicious prosecution, he or she must establish four essential ingredients as laid down in Yonah Ngassa vs. Makoye Ngassa [2006] TLR 214. These are: (i) The proceedings were instituted or continued by the Defendant; (ii) The Defendant acted without reasonable and probable cause; (Hi) The Defendant acted maliciously; and (iv) The proceedings terminated in the Plaintiffs favour. See also Moris Sasawata vs. Matias Maleko (1980) TLR 18. In actions founded on the tort of malicious prosecution, it is settled law that all the aforesaid ingredients must co-exist and be strictly proved before a plaintiff can succeed. The absence of even a single ingredient is fatal to the claim. This principle has long stood as a cornerstone of the common law tort of malicious prosecution and has Page 13 of 25 equally been adopted and consistently applied in our jurisdiction through a litany of judicial authorities. For instance, in Mbowa vs. East Mengo Administration (1972) EA 353 as cited with approval by the Court of Appeal in North Mara Gold Mine Limited vs. Joseph Weroma Dominic (Civil Appeal No. 299 of 2020) [2022] TZCA 2 (26 January 2022) at pages 16 through 17, the defunct East African Court of Appeal held, inter-alia, that: - "The plaintiff in order to succeed, aii the four essentials or requirements o f malicious prosecution , as set out above, have been fulfilled and that he has suffered damage. In other words, the four requirements must unite in order to create or establish a cause o f action. I f the plaintiff does not prove them, he would fail in his action" Applying the above principle to the matter under consideration, it is undisputed that the Respondent lodged a complaint against the appellant at Chumbageni Police Station on 08/06/2023, and that on 09/06/2023 the appellant reported thereat and was thereafter detained in custody from 08:00 a.m., until 06:00 p.m., before being admitted to bail. It is equally uncontested that, following the failure of the parties to amicably resolve their differences, the matter was eventually instituted before the court on 10/07/2023, whereupon the appellant was arraigned and charged, as already alluded to hereinabove, but was ultimately acquitted. Going by the foregoing facts, as testified to by PW1 before the trial court and conceded by the respondent, the gravamen of the issue falling for consideration and determination at this juncture is whether the respondent acted maliciously and without Page 14 of 25 reasonable and probable cause in setting the criminal law in motion against the Appellant. Before embarking upon the determination of the issues herein, I deem it both prudent and imperative to first expound upon the meaning and legal import of malice vis-a-vis reasonable and probable cause within the ambit of the tort of malicious prosecution, for these two elements constitute the very fulcrum upon which liability in such actions ordinarily turns. In the case of James Funke Ngwagilo vs. Attorney General (2004) TLR 161, as referred to in Seif Mohamed Maungu vs. Weindumi Lameck Sawe t/a W.L. Sawe Garage (Civil Appeal No. 102 of 2013) [2017] TZCA 969 (25 October 2017) at pages 10 to 11, the Court underscored that: "Malice in the context o f malicious prosecution is an intent to use the legal process for other than its legal appointed and appropriate purpose " Also, in the case of Kagane vs. A.G. (1969) EA 643; Rudd, J., while citing the case of Hicks vs. Faulkner (1878) 8 QBD 167 at 171, had this to state: "Reasonable and probable cause is an honest belief in the guilt o f the accused based upon a full conviction founded upon reasonable ground o f the existence o f a state o f circumstance which assuming to be true would reasonably lead an ordinary prudent and cautious man placed in the position o f the causer to the conclusion that the person charged was probably guilty o f the crime imputed". Guided by the foregoing authorities, I now proceed to re-evaluate the evidence on record with a view to ascertaining whether the appellant was maliciously prosecuted Page 15 of 25 by the Respondent. The evidence on record, particularly the testimony of the appellant, who testified as PW1 before the trial court, reveals that the dispute between the parties emanated from a misunderstanding arising out of the use and operation of a loudspeaker within their business premises at Tangamano Market area, specifically the allegation that the appellant was operating the same at a volume higher than that permitted. It further emerged in evidence that the respondent had earlier reported the matter to local authorities, including the Ward Executive Officer (WEO) of Majengo Ward, one Ruta Peter. On 10th October, 2017, the said WEO visited the premises and purportedly prohibited the use of loudspeakers, directing that any person wishing to continue using the same for advertising purposes was required to pay a sum of TZS. 20,000/=. The appellant complied with the directive and duly effected payment. It was further stated that, during the course of the said intervention, the WEO later clarified that no such levy was payable and that no restrictive condition remained governing the use of loudspeakers. Notwithstanding the foregoing clarification, the respondent, being the principal complainant against the appellant in respect of the use of the loudspeaker, allegedly developed animosity towards the appellant. The record further shows that, the respondent caused the appellant to be summoned before a reconciliation board on 25th February, 2022 at Kishani Hall, where complaints were once again raised concerning the alleged excessive volume of the loudspeaker. During that meeting, a decision was reached restraining the appellant from using the loudspeaker pending a further inspection by members of the board scheduled for 02/03/2022. Upon inspection of the area, the said members permitted the appellant to continue using the loudspeaker, albeit subject to regulation as to volume. It was also shown that on 01/05/2023, the appellant was again summoned before the reconciliation board following renewed complaints by the respondent touching upon the same issue. Ultimately, the matter escalated and culminated on 08/06/2023, when the respondent reported the dispute to Chumbageni Police Station, thereby setting in motion the criminal process which culminated in the institution of proceedings before the trial court. Indeed, this litany of complaints incessantly lodged against one individual within a market comprising hundreds of vendors, coupled with the fact that the appellant was not the sole operator of loudspeakers therein, denotes nothing short of personal grudge and ill-wili on the part of the respondent. This conduct, in my considered view, ultimately gave rise to malice, the appellant having been singled out and made a scapegoat. This position is further fortified by the fact that the respondent was the Chairperson of Machinga/Vendors in Tanga District, a position which ostensibly placed him in a position of influence over the dispute and the processes attendant thereto. As regards the meaning of the term "reasonable and probable cause," the Court in Seif Mohamed Maungu vs. Weindumi Lameck Sawe t/a W.L. Sawe Garage (supra) at pages 12 to 13, while quoting the definition in Hicks vs. Faulkner (supra) at page 171, explained the same as follows: "reasonable and probable cause is an honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds, of the existence of a circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man and cautious man placed in the Page 17 of 25 position of the accuser to the conclusion that the person charged was probably guilty of the crime imputed...". Drawing upon the authorities cited hereinabove, it is submitted that the appellant, bore the legal burden of establishing that the respondent acted without an honest belief, or with total absence of belief, in the existence of reasonable and probable cause for the institution of the criminal proceedings. This requirement constitutes the pivotal link in the determination of malice in an action for malicious prosecution. It having already been established that the respondent set the criminal law in motion and that the proceedings terminated in favour of the appellant, the decisive inquiry is whether the respondent acted upon a genuine and reasonable belief in the propriety of the complaint. As regards reasonable and probable cause, the learned trial Magistrate held that the existence of a dispute between the parties was, in itself, sufficient to found reasonable cause for reporting the matter to the police. With due respect, that reasoning is untenable in law. The mere existence of a civil dispute does not, ipso facto, constitute reasonable and probable cause for the invocation of the criminal process. Such cause must rest upon a reasonable belief, founded on facts, that a criminal offence has been committed by the person accused. As gleaned from the record, the same discloses that the appellant was charged under section 89(l)(b) of the Penal Code, it being alleged that she engaged in disorderly conduct by the use of a loudspeaker. However, the evidence adduced at trial, as well as the findings in the criminal proceedings (Exhibit P3), together with the Page 18 of 25 testimony of PW2 and PW3, clearly demonstrate that Tangamano Market area is a public trading place wherein the use of loudspeakers for commercial advertisement is a common and generally accepted practice among venders. PW2 (Sophia Hassan Kimangale) testified that both the appellant/plaintiff and the respondent/defendant were (are) her fellow businesswomen at Tangamano Market. She admitted that, one Neema Peter Mseke was likewise her fellow businesswoman and served as the Chairperson at Tangamano Market. She further testified that, both Neema Peter Mseke and Mahija Salehe Mohamed were neighbours to her business premises. According to her testimony, she was engaged in the business of selling clothes, and the distance between her business premises and that of Mahija Salehe Mohamed (the appellant herein) was approximately five meters, while that of Neema Peter Mseke (the respondent herein) was approximately three meters. She further told the trial court that she herself used a loudspeaker in advertising her business, as did other vendors, including one @ Cheating and Mama Mlokole @ Rose Kuhanwa, who routinely used loudspeakers without objection, and that no complaints were ever directed against them. She nevertheless maintained that, Mahija Salehe Mohamed did not personally use any loudspeaker in advertising her business. On his part, PW3 namely, Rashid Wendo Mwakijiru, who is the husband of the Appellant/Plaintiff, testified before the trial court that, in the course of their routine business activities, they used a loudspeaker to advertise their businesses, which loudspeaker was placed on his table. He clarified that Mahija herself did not operate the loudspeaker, but that his loudspeaker was used to advertise both businesses. This evidence clearly demonstrates that the loudspeaker in question belonged to PW3 and Page 19 of 25 was merely placed on his table, and was not exclusively operated or controlled by the appellant. It further emerged from the respondent's own testimony (DW1) that there existed long-standing animosity between the parties arising from disputes relating to market leadership and business premises, and that the respondent had previously pursued the matter through administrative channels at ward and market committee level, all of which proved unsuccessful in achieving the desired outcome against the appellant. In Jeremiah Kamama vs. Bugomola Mayandi (supra) the court held intsr-atia that, prior ill-will and rivalry are material considerations in the inference of malice. In the present case, the respondent's decision to single out the appellant for criminal prosecution, in respect of an activity which was common practice within the market and which the criminal court itself found not to amount to a disturbance, gives rise to a strong inference of malice. The criminal process appears, on the evidence, to have been employed as an instrument for settling personal scores arising from prior civil disagreements. On scrutiny of the lower court record, this court noticed that, the learned trial Magistrate, with due respect, failed to ponder deeply why the respondent targeted only the appellant while other venders in similar or even closer proximity continued to use loudspeakers without complaint. Such selective prosecution is indicative of improper motive and strengthens the inference of maiice. While examining the entire proceedings of the lower court in relation to the applicable law and relevant judicial precedents, I drew inspiration from the decision of Page 20 of 25 this court in Andrew Basil Ngatunga vs. Laurent Martin @ Lowri (RM's Civil Appeal No. 5825 of 2024) [2025] TZHC 7413 (21 November 2025), at page 14, wherein the Court observed that; "... a person who has actual knowledge o f the commission, or intended commission, o f an offence; or a person who becomes aware o f facts or circumstances that reasonably and probably point to the commission or intended commission o f a criminal act. The phrase does not\ however, extend to a person who knowingly furnishes false information, or who maliciously, recklessly, negligently, or without reasonable and probable cause, reports a matter as a crime...". The Court went on at page 20-21 citing the authoritative text of Law of Torts, p. 317 by Ratanlal and Dhirajlal, which sets out the criteria for measuring probable cause as follows: "The defence o f reasonable and probable cause may be invoked by the defendant if the following factors are satisfied: one, an honest belief by the accuser in the guilt o f the accused; two, such belief is based on an honest conviction o f the existence o f circumstances leading to that conclusion; three, the belief must be based upon reasonable grounds, such that, a fairly cautious person in the accuser's situation would have believed the same; four, the circumstances relied upon must amount to a reasonable ground for belief in the accused's guilt...". The above-articulated principles are squarely applicable to the matter under consideration. Relying on the first authority cited, it is evident that the respondent cannot properly be regarded as a bona-fide prosecutor acting upon reasonable and probable cause. As already demonstrated, the use of loudspeakers was a common and accepted practice within Tangamano Market area. More fundamentally, when the matter is tested against the principles enunciated in Ratanlal and Dhirajlal's Law of Torts, the respondent's justification becomes wholly unsustainable. First, there was no demonstration of an honest belief in the appellant's guilt, particularly in light of the respondent's selective pursuit of the appellant while ignoring other traders engaged in identical conduct. Secondly, no honest conviction founded upon actual criminal circumstances can reasonably be inferred where the alleged "noise" constituted a normal and prevailing feature of the market environment. Thirdly, even assuming that such belief existed, the same was not founded upon reasonable grounds, for a reasonable and prudent person placed in the respondent's position would have appreciated that the matter complained of amounted, at most, to a civil nuisance rather than a criminal offence. Accordingly, the circumstances relied upon by the respondent cannot, in law, amount to reasonable and probable cause. In the premises, it is evident that the respondent acted without reasonable and probable cause in instituting the criminal proceedings. Malice is, in the circumstances of this case, properly inferable from the absence of reasonable and probable cause, coupled with the longstanding animosity between the parties arising from disputes over market operations and business premises. The learned trial Magistrate, with due respect, therefore fell into a trap of error in holding otherwise. Page 22 of 25 Based on the foregoing analysis, I am firmly persuaded that the respondent lacked reasonable and probable cause to institute the criminal proceedings against the appellant and acted with malice. Consequently, the trial Magistrate erred in arriving at a contrary conclusion. Coming to the issue of damages, the appellant testified that she was arrested and detained at Chumbageni Police Station from 08:00 a.m., to 06:00 p.m., and that she consequently suffered loss of business and was compelled to attend court sessions. It is, however, unfortunate that the appellant failed to state with precision the extent of the loss allegedly suffered. Even the figures she alluded to in an attempt to justify the alleged loss of income were inconsistent and did not tally with one another. It is a long- settled principle of law in our jurisdiction that special damages must not only be specifically pleaded, but must also be strictly proved before a court of law can lawfully award the same. There exists a long line of judicial authorities affirming this principle, among them the decision in Zuberi Augustino vs. Anicet Mugabe [1992] TLR 137, wherein the Court unequivocally stated at page 139 that: - In the instant appeal, although the appellant alleged that she earned a daily profit of TZS. 200,000/=, she failed to strictly prove the same through documentary evidence such as stock registers, receipt books, bank statements, or any other credible records. Consequently, this court is precluded from awarding any specific sum under the head of special damages for loss of business. '...It is trite iaw, and we need not cite any authority, that special damages must be specifically pleaded and proved... Page 23 of 25 In assessing the quantum of damages payable, I am guided by the well-settled legal maxim of injuria sine damno, signifying a legal injury or violation of a right without proof of actual pecuniary loss. Although the appellant undoubtedly suffered a legal wrong through the malicious prosecution instituted against her, she failed to strictly prove the resultant pecuniary loss or damnum, particularly the alleged loss of profit, as already demonstrated hereinabove. Nevertheless, the absence of strict proof of special damages does not disentitle the appellant from an award of substantial general damages. In the circumstances of this case, the appellant endured humiliation, mental anguish, and inconvenience arising from her confinement at the police station for nearly eleven hours. Equally, she suffered injury to her reputation by being subjected to criminal prosecution, together with disruption to her ordinary livelihood and social standing. An award of general damages is therefore justified so as to restore, as far as money can do, the position she would have occupied had she not been maliciously prosecuted. The legal foundation for this position is traceable from the holding in P. M. Jonathan vs. Athuman Khalfan [1980] TLR 175 at page 190. Guided by the aforementioned authority, I assess general damages in the sum of TZS. 1,500,000/= (One Million Five Hundred Thousand Only), payable by the respondent to the appellant, for the reasons already set out hereinabove. In the final analysis, and for the reasons which I have endeavoured to demonstrate hereinabove, I hold that this appeal is hereby allowed. Consequently, the judgment and decree of the trial court dated 19/09/2024 are hereby quashed and set aside in their entirety. Page 24 of 25 As regards costs, and as prayed for by the appellant, the costs of this suit both in the trial court and in this appellate court shall be borne by the respondent. Order accordingly. DATED at TANGA this 22n d day of May, 2026. M. J. CHABA JUDGE 22/05/2026 Court: Ruling to be delivered by the Hon. Deputy Registrar of the High Court of Tanzania - Tanga Sub-Registry. Page 25 of 25