Saimon Ngundama & Another vs Benjamin Mbilinyi (PC Civil Appeal No. 69 of 1997) [1999] TZHC 403 (21 May 1999)

/ C MOSHI, J. IN THE HIGH COURl' OF TANZANIA AT MBEYA PC CIVIL APPEAL NO. 69 OF.e 1997 (From Mbeya District Court Civil Appeal No. 108 and 125 of 1996 Before: M.S. Lwabutiti - District Magistrate)

1. SAIMON NGUNDAMA)
2. VICTORIA NGAO ) ·········· APPELLANTS VERSUS BENJAMIN! MBILINYI • 0 •••••••••••• lm,PONDENT JUDGMENT The appellants preferred a suit against the respondent before the primary court of Chirnala clairng shs.248,750/= damages for malicious prosecution. It was Civil Case No. 12 of 1995. The primary court allowed the claim to the extent of shs.100,000/= only. The decision to allow the claim aggrieved the respondent who preferred Mbeya district court Civil Appeal No. 108/96 against it. At the same time the award of shs.100,·000/:: aggrieved the appellants who felt that it was on the low side, and they, in consequence, preferred Cross-_Appeal No •. 125 of 1996 before the same district court. The appeal and cross-appeal were heard separately, but only one appellate judgment in regard to both was given by the district court. The district court allowed the appeal and set aside the decision of the primary court including the award. The cross-appeal, in consequence, melted away. The district court's decision aggrieved the appellants, hence this appeal. The appellants and the respondent sought and obtained services of learned Counsel in the appeal and cross-appeal before the district court and in this appeal: Mr. Mbise for the former and Mr. Naali for the latter. The facts giving rise to the suit before the primary court were these • • • • • • • • • • •/ ·2

• 2 - The appellants were husband and wife. The respondent was a tenant in the house of the appellants. According to th~ ·respondent the appellants insulted and harassed him during the night of 15.5.95 and reported the matter to the police. The respondent said in his evidence in chief: v 1 Ni kweli niliwapeleka kituo cha polisi mdai 1 na 2 wote wawili baada ya wao kunifanyia vituko •••• •". On being examined by the trial court the respondent said: "Mimi nilitukanwa ndipo nil:ikwenda polisi •••••• n. The police, in consequenc~ - arrosted the appellants and locked them up at the police station lock-up for a day. After investigation the police decided to pre_fer a charge of Using abusive language, contrary to section 89(1)(a) of the Penal Code, against them . at the primary court of Chimala. It was on 12.9095 and it was .Criminal Case No. 118 of 1995. The respondent testified. He called a witness~ Maria d/o Kabahe (SU2), who however testified that she knew nothing about the ineidGnto The respondent told the trial court that he had another witness who was sick after a Cesarian Operation and had gone to Ileje, her home area. Time passed without the return of the witness, and on 12.9.95 the respondent-had to apply for the withdrawal of the complaint in view to reinstate it upon the return~ the witness. That was what the respondent told th~ trial court, which then marked the complaint withdrawn under section 22(1) of the Primary Courts Criminal Procedure Code, Third Schedule to the Magistrates Courts Act 1984. I The appellants were ·at variance as.to the cause of their arresto The second appellant said the cause was something nagging the respondent about her marriage to the first appell~t. For she said in her evidence: "Nilishanga::> siku moja mdaiwa ananieleza kuwa nyie leo mtakwenda kulala polisi kwa sababu umependa kuolewa na huyu mzee, kweli aska.ri wakaja na kutukama.ta ... oe 11 • The first appellant said nothing of the sort. Only the second appellant claimed so. The first appellant said in his evidence: 11 Mdaiwa katika kesi hii Benjamini Mbilinyi alinishi taki mimi na mke wangu kuwa tulimtukana na tul:ikamatwa na kuwekwa ndani na kufunguliwa kesi ya jinai Nambari 118/95 ..... 19 •· The appellants denied that they :::1d harassed and abused the respondent. They ·····•·!-•/.3

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• 3 - claimed their.prosecution by the respondent was without reasonable and probable cause and tainted.by maliceo They claimed that thei~ engagement in the criminal case adversely affected work on their farm and cattle feeding, and I had to employ a farm labourer, Tadei Mwenda (SM3), and a herdsman, Fesi s/o Nzali (SM4), and pay them. Hence the suit before the primary court. Mr. Mbise preferred three grounds of appeal which he argued generally._ They were:

1. The learned District Magistrate misapplied the principles governing the Tort of Malicious prosecution to the facts of this case.
2. The ~earned District Magistrate erred on reversing the findings.of fact made by tl,le trial court, whichis the best court, for no good cause.
3. The learned District Magistrate err.ed on holding _that it ,, was not the Respondent who institut_ed the Criminal· Procedings against the appellants 1 contrary to the Principle of Law contained in the 9ase of Moris A. Sasawata Vs. Matias Malieko ( 1980) TLR 158, which was cited to himo· • I In order to succeed in a suit for maiicious prosecution the plaintiff must prove the four ingredients of that tort.· Very correctly, the learned district magistrate pointed out the four ingredients as laid down by thip court · in the case of Festa Vs. Mwakabana (197,1) HCD . 417 (Mwakasend9, J.), and in r the--later case of Rosia Lalata Vs. Gibson Zumba Mwasote (1980) TLR 154 (Samatta, J.)o The four ingredients are: (a) That the plaintiff was prosecutd by the defendant; _(b) That the prosecution ended in his favour; (c) That the prosecution was conducted without reasonable or probble cause; (μ) That in bringing the prosecution the defendant was · ,actuated by .malice. For the' purpose of a suit for malicious prosecution, a person becomes a prosecutor when he takes steps with a view to setting in motion legal proces$eS- 0 ••• 0 ••• / 4 . ,.

4 = \ for the eventual prosecution of a person whom he alleges to have committed a crime - SEE LALATA's case, supra. As rightly.submitted by Mr. Mbise, therefore, the appellants in this case were prosecuted by the respondent • . The prosecution terminated· in favour of the appellant~. In the circumstances of this, case, however, I would agree with Mr. Naali and the district court that it was not demonstrated to the required extent that the I . ' . prosecution was· conducted without reasonable or probable cause. w_ithin the ... meaning of the law. This is an important. element of the action because it is not every prosecution which ends in an accused's favour that exposes the accuser to a·suit- for ,damages.for malicious rosecμtion. The respondent ' explained to the trial· court in the criminal case as well as in this case the circumstances which .led him to register a complaint against the appellants at / . ''. the police station. With respect to Mr. Mbise, this could not, in the I circumstances of. this case, have been a concoction. It could not, as claimed by tb.e first appellant, just have happened. Acting on the complaint the police . ' rrested the appellants and, afte investigation, decided to talce them to court and chafgd hem with the ofrence imputed It did not matter that the respon it ,, withdrew the complaint from the c_ourt. That was not, in the circumstances of this case, an indication that. his r.eport to the police was without reasonable '• or probable cause. He gave sound and conv~ncing reasons for terminating the . procee'dings. What is more and worse against the plaintiffs is that no malice was proved on the part of the respondent. Mr. Mbise sought to indicate malice by ' claiming that, what the second appellant said was supported by SM3 and SM4. But 'neither of 'th·es·e two ,,,i_tnesses supported the second appellant in what she ' said. . All they said was that they were employed by, and worked for, the appellants during the criminal case. What he second appellant said was wholly unsubsta.n+-i 0 +·..:i "'r-:. wvcu ~1er'husband, the first appellant, supported her. There is malice where the accuser ~cted with any motive other than that of simply ins:tituting a proceeding for the purpose of bringing a person to justice. e • e·o o • o • • ./ 5 . .

' ,i For Respondent: Mr. Naali, advocate. J I

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