Paul Sabuhene vs Chairman of Kitahana Village (HC Civil Appeal No. 39 of 1997) [1999] TZHC 407 (20 July 1999)
Judgment
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I~ .T'.tIEtHIGH COURT OF TANZANIA
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(;). C:(VII:! Al.?~f NO~ ·-39 ·oF :1997
• ··.:.-· i· .. - . ".I,,;.: ·-: ·.r ... , ,--·.-:: :r.-',t to the District Court qf
Kibonde at Kibendo •. The charge sheet gives the date of 23/9/96. On
7/11/96, the appellant was. dischB.rged from the criminal offeno3s.
to answer. The oj
(fy.op:i,.I(;i!bendti Civil. Ca_se ,No 'i ;i 1996)
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KIXAKANAVILLAGE
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RESPOl'ij)ENT
JlJDGMN _ !
Th.e -fl_Ppel1:-S1J~-- Paul Sabuhene was a Court Clerk a·nd had been
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stationed· at Kibonde Distr_ict Court. In 1996 he got himself involved
i.P. vil:l_ag~ po.l:ttics and ?,.t !9n_e · time, at a public meti at whtc):l ··~
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dist;r.ict C"mJ-ssionet' ·afE?nded, there were complaints th~! h~-
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three •thers, had stolen some village money to the tune .. :d,f- b.;ut tti:r;:'e
milli•n shillings. The fou~ were ·arrested and sent to Court, charged
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'l'lith a total of four counts. They were sse only He was, t• be exact, discharged en a ;10 cas,;:
able
prqceeded against his other three collegues. I have not beenLto find
out what the outcome of the ca1ie. o:t'-'the other three was. The apper.,ant
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then filed a civil case tn the same district Court, claim{ng some
damages of some Shs.8.5 millione He filed the suit against the
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Chairman of the village ._of ?rit~~l'l.te alleging that he was the one who
had reperted that tihnuae-a thief while· tho trutr.. $f the matter was
that he was n.9t.
Before the Ceurt, the app¥llnt was not successful. His case
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was dismissed. The lai'ned .. district magistrate, Mr. Ndagije, was of
the view that the appellant could not prove malicious prosecution.
He held, and I quete h_im:
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- Frcm the evidenco adduced, the plq.intiff seems not entitled to be paid T.Shs.8,500,00.0/= as f•mpansation f_or malici<-us prosecution for the criminal case No. 133/96 was prosecuted. not eut ~f private spite but for the interest of tho Republic. 11
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Sir John Beaumdnt in·· the case of .M8hamed Amin v: J;gendra &.lnnerje~
["1947J AeC• '.)22 (P.Ci') has said4 tff malicibus prdsecution, that:
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T~ fund: an acti'hn. for damages -for malicious
pr.osed:it:i'.on based s have
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reached a stage i':lt which da.mage to the
_plaintiff rn Criminal pr6ceadings,
the test is net-whether the Criminal
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. prdeed1ngs have reached a stage at. _which they
may be correctly desc:doed as a 'prosecution;
the test is;whether such nroceedinsults,
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The Judge Eoes ori to say:
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%e f_ondat:iijn. of the action lies in abμse of
the process pf the Cjju,--:-t by wrdngfUlly setting
the :J..aw in mdtion
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and it is designed tti ·
djiscrat?;e th persersioh of_the machinery of
j'ltstili:e fit· an improper p11.rpose.a
The tort malicibus prosecution, sdtne authors have written, simply
means in layman's language •the abuse ef legal proceduree' It is
:5-Uggested that
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the tort of conspir:;mcy is actua~ly the ~~
f this tort of malicious prosecutin.
§.':.1..?E- O!: '::! Po 621 and Cerk and Lindsell on~~ P• 803
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are quoted to have put ~ cenditions_J of liability for damages :for
malicious prosecution: I-I:· rrru.st be established, by the plaintiff:
(1) That the proceeings have been instituted by
the defendants;
(2) That they have terminated in favour of the plaintiff;
(3) That the defendant acted without reasonable
or 1;Jrobr.i.ble couse;
(4) That he acted maliciously. (these authors
are quoted with apprval in the EA-st African
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Court of Appeal case Al-~~~med Omi:
DcCo Hill L1955J EA.E.Ao 109).
Now, in the instal'lt case, there was a. fact that the village had
some money misappropriate, and that the peple likely to have misappro-
priated the money were the village .. elders. Is see nothing wro~g in
envisaging this likelihood. Then four persons were sent to Courto Middle
way, the charges against the appellant aborted in the sense that the
magistrate felt thc1t there was no case to answer. Well, the law provides
for such an assessment in the middle of the case, after the prcsocuti.on
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have· closed -the~ case. So, that aspect-· of ._the procedure is lawful. I
will, t1erefore
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ag,Tee with the learned magistrate who disil')issed the claim
that these a:ee·matters which are perseci in public inter~-2t .. If the law
were otherwise, then, law and o".'der -would find it difficult to operate •
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The law is sensible I think: There must be some protection of some sort
to people who report of ' crimes :re!rardless f whether those crimes some
in the end are proved true or not, provided,._- of c_c,urse, the report was not
made maliciously. And, __ in the instant case, there is no eviC:.ence to show
that the reports were made with. an ill ptive. Thi.s 'appeal, .the;r.efore, is
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devoid of any merit. It is dismissed in its entirety. It is dismissed with
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J. Ea C. MA.SANCHE,
·JUDGE.
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AT TABORA,, .
20th July, 1999.
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William Ndahize Chairman · of the, .:i::·espo_ndent village•
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Appellant: Absent.
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