Jacob Mwakyelu vs Shedrack Sanga (Dc Civil Appeal No. 20 of 1996) [1998] TZHC 2046 (16 September 1998)

.. • IN THE HIGH COURT OF TANZANIA . AT MBEYA DC CIVIL.APPEAL NO. 20 OF 1996

• .. · (From the decision ·of the District-Court __ of Mbeya at Mbeya in Civil Case No. 2 of 1995 BEFORE: S. M. RUMANYIKA - R.M. ) JACOB MWAKYELU • • • • • • • • • • • • APPELLANT VERSUS SHEDRACK SANGA •••••••••••• - RE,SPONDENT JUDGEMENT M'[IPOP0 1 J • of an This appeal arises outfdjudged ::iW:J.rd of Shs.1,500,000/= as damages for malici,ous prosecution -plus interest of 31% from date of filing the suit until ·tinalization of the suit and pllls undetermined decreta1 "interest and costs against the appellant Jacob s/o Mwakyelu in favour of the respondent Sedrack s/o Sanga. The : _presided judgement was passed by the District Court of M"beyaLby over learned Mr. Rum any ika ( R.M. ) • Both dversary,parties are Ward Executive Officers • of Nzovwe Ward for \the- respol'.ldent and of Iyunga Ward for the appellant within the Mbeya Municipality The appellant has been represented by the learned Mr. Mwangole (Advocate) and the respondent ; has b_e_n represented by the learned Mr. Mkurnbe {Advocate). The lea·rned Mr. Mwangole, has raised the grounds that it was wrong to use customary law to found the malicious prosecution instead.of using ·The National Educational Act No. 25/1978 Section 35 (2) and (4). He also contended

... __ _ that as Wprd Executive Officer the appellant was~ justice of peace who had qu3g i · legnl duty to prose9μte . ~ . . . . . conniving the respondent for · . L. ~ o_r aiding the culprit who had pregnanted· hi~ daughter to escape being prosecuted., The learned Mr. Mktffilb~ .asked ·for the sustainance of no · the lower cotirt•s decision he argued, through· lack of for Lr.iali'ce was established, any ·good- grounds for prosecut.ing. ...... ~ •· .. the respondent instead of the culprit one George Mgaya who was the oe who pregnanted the daughter of the respondenft a ·- - ... - ..... This isL pathetically frivolous case arising out of performance of a Ward Execut,iv~ Officer in his official- cap3ci ty ( the nppe?-lant) again13t anothe_ Ward Executive Of'ficer·in his ·private capacity.as a citizen of this c'ountry (the respondent). ·· · ·The· daughter of the respondent who was still in 'primary school got, a pregnancy of .3 months caused by one George Mgaya. · ·The school Comr.li.ttee decided to prosecute the' culprit who-had caused the-pupil to terminate her · studies prematurely . and· ;forwarded their complaint to the appellant as their Wrd.Executive Officer for implimen~ : tation of their cte·cision. · · ·· Efforts to have the . father ·of ·the girl - the respondent assist to,get hold of GeorgeMgaya failed for ·he ·a.id no-,t cooper·ate with the school corur.:ii ttee or the· that ·:appellant~ It is actually: ailleged . he ·connived to have ·' · · . L . . . -· the daughter join her /;uit-cr ·in M.akete where he went and . . r~ecei ved d'owry i·. e. allowed her pupil-daughter to get '... ... ·Although the -learned Mr. Mkumbe Advocate argued that .. uhder 6ustor:1ary law and etiquet"te·. the respon.dent could not ••• /3

3 deal with the offender as11son in law1t on matters involv::;_rg .. '' sex with his own daughter that ~~uld not protect h.:J11 fJ:--om cooperat,ing in exposing the cul:pri t - son in law to th:: hands of justice under the National Education Act,, It was reas6hable for the appellant t? proceed charging the respondnt in Court crir:1inlly for aidirig and abetting in causing his daughter to be pree1aturely terminated -froi:t the compulsory prirJary school education up to Std. VII. It was necessary to show that the appellant hsd

express rJalice --when filing the criE1inal charges which 1vvas direly lacking. Moreover,since he is a justice of peace he had judicial powers under Section 54 (1) of'>i,,C,Ac t:: arrest and compel the respondent to appenr before a got the mmplaints from the school C01:1r.1i tteer.: 1-Jhat he did could not amount to a malicious· prosecution at all which would attract defaraation to the· respondent to be ir:1puted against him. What he did was within the presc.incts of Section 66 (1) (b) of the sane M.C.,Ae which protects a justice of peace fror:1 liability to suits acting in -his..: official ttapacities in_g6od.fa:tth,, The respondent being a Ward Executive Officer was not above the -· 1 \ law and could be charged crir.1inally as i.+ '.ms done:' to hil:1 by the appellant. The trial court grossly failed to cipher and recog~ize the official role played properly by the app2llant., The jud@~ent of the lower court is quashed entirelyo There was no Llalicious prosecution or defamation caused to the • a o /4

respondent and the appellant ._was· s·tatu.t(2ri]y protected from being sued as it was done to him.· Mwipopo, J.

• JUDGE 16/9/1998 Appellant Jacob Mwakyelu - Present Mr. Mwangole Advocate - Present Respondent: Shedrack Sanga.::. Present Mr. }lkumbe, Advocate· - Absent C/C, Mrs. Kasubiri .£.,Qμ..r_t;. Judgr:1ent delivered in the presence of both parties. ' . . }JL~~ ~~ ~- K. MWIPOPO JUDGE AT MBEYA 16TH SEPTEMBER, 1998 /JJM.