Jacob Mwakyelu vs Shedrack Sanga (DC Civil Appeal No. 20 of 1996) [1998] TZHC 2479 (16 September 1998)

IN THE HIGH COURT OF TANZANIA AT MBEYA , nc crvrt.--JtPPEAL o. 20 oF 1996 (From the decisio.n of the District-GGurt of Mbeya ·at Mbeya "i_n. Civil Case No. 2 of 1995 .. ' . BEFORE: S. ,M. RUMANYIKA - R.M.) JACOB MWAKYELU . .. . . ~ . . . . . . APPELLANT VERSUS SHEDRACK SANGA •......... ·•·• RESPONDENT JUDGEMENT t"i1fIPOP0 1 J • of an This appeal arises out.f1djudged DW3rd of Shs.1,500,000/= as damages for malicious prosecution plus interest of 3l% from date of·.,filing .the suit until . . finalization of the.suit and-plus .undetermined decretal interest and costs against the appellant Jacob s/o Mwakyelu in favour of· the respondent Spedrack · judgement was passed by the Di.strict learned Mr. Rumanyika· ( R.M. ).. .. s/o Sang. The . _ _presided Court of. K°beyaLby Both adversary parties are Ward Executive Officers . over of Nzovwe Ward for the respondent 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 . .J has be'en represented by the learned Mr. ·Mkumbe (Advocate). The learned Mr. Mwangole has raised the grounds that it was wrong to use customary law to found the malicious prosecution instead of using ';rhe National Educational A(?,~ No. 25/1978 Section 35 (2) and (4). He· also contended ••• /2

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• 2 - J : 111111111111111 that as Ward Executive Officer the appellant was a justice of peace 'who had quns i ,legal duty to prosecute . .. conniving the respondent for j_ .- or aiding th~ culpfi t who had pregnanted his daughter to:esco.pe being prosecutedo The learned Mr. Mkunbe asked for the• sustainance of , · no the lower court'•s decision. for Lr.:1alice was ·,?stablished, he argued, thrGugh· J.ack of . .any·good. grounds.for prosecuting the respondent instead a.t the culprit one George Mgaya who was the one· ·who pregnante.d the .daughte·r .of. the respondento a . . ~ . - .. . . . This isL .pathetically frivolous Q~~.e, erising out of performance of a Ward;Exe~u:t;iye Officer in .is;official capacity ( the appellant) against anotl-1-er .War.d Executive . . . . _, ~ "' - . Officer· in his.rivte·capacity as-a citizen of this country (the. respondent)•·· ... . ' . I. · The dtnighter of the respondent· who was sti.11 in primary school got·,a pregnancy of 3 months qaused by one ·George Mgaya •. The·school Conmittee decided.to prosecute ,,. the culprit who had caused the pupil to terminate her studies·prematurely and forwarded their complaint to the appellant as their Wnrd Executive Officer- for m.pl.imen- tation of their decision. · · Efforts to have thff father of, ·the grl· "'.' the respondent assist to get hold. of George Mgaya ,,failed for he di:d not cooperate with the school commi tte.e or the that appellant. It is actually alleged he connived,to have L the daughter join her·suitcr in Makete where he went and received dowry i;e. allowed her pupil-daughter to get . . . · · Alth6ugh •the• learned Mr •. Mkumbe Advocate. ~rgued that under - 1 custor.1ary law, and etiquette .. the respondent could not ••• /3

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• 3 - deal wi;th tht? offender as nson in law:• on n13tte:cs in vol v:'-.r~ sex with his own daughter that could not protect h:'"m f·,,orn. cooperating in _exposig the culpr:i:t - son in law to th~, hands of justice under the National Educ2t,.ion Act(, It was reasonable for the appello.nt to proceed chnrging the respon.dent. in Court criminally £m:' aidj_ng . and abetting in causing his daughter to be preraturely ter1:iinated fror:.1 •the,·cympulsory prinary school education up to Std. VII. It was necessary to show that the, appellaqt hed express rJalice when .filing· th crii:1;Lnal charges. v{hicti wa;J direly lacking. Moreoverj sin9e :he, ,:i.,$ a just:.Lce of peace he had judical powers under :$ec:tio.n· 54.{l) of >LC,,Ac to arrest and compel the respondent to appl?G.1:' before. a ..,.;,., t · . t t t b t-. ,.,.,,.,.,.:, .~~;.p~,,..,~ 1 ·1,·· -"·· -·- '- . ., p.1. ..w,1ary cour mag is ra e o e C!,.1.a., .. 0 ... ,. , ... ,. .. .. • ~ got the cur.1plaints from the school Cor.rr.1i ttee 0 What he did c·ould not amount to a malicious·· prosecution at al1 which would attract defamation to the respondent to be ir:1p11te.q. _against him. · ·W11at he did ivas within the presc.incts of Secti9n 66 {l) (b) of the sane MoC .. Ao whict. protects a justice of. peace froLl liability to suits acting in "hfs.:- official capacities in good faith .. The respondent being a Ward Executive Officer was not above law and could be charged crir:1inally as it- '•:8S donG to hi.11 by the appellant. tr1e -., The trial court grossly failed to cipher and recognize the official role played proprly by the app~llanta The judgrn,mt of the lower court is quashed entirely,, There was no ualicious prosecution or defamation caused to the o o o/4 ,• .] ' -✓ ~ ,,

• 4 - respondent and the appellant -ws-·s-tatutorily protected \ 16/9/98 Mwipopo, J. ~ 0 /L to him. costs. E.L.K •. .MWIPOPO JUDGE 16/9/1998 Appellant Jacob Mwakyelu - Present Mr. Mwangole Advocate Present Respondent: Shedrack Sanga - Present Mr• _ Mkumbe, Advocate - Absent C/C. Mrs. Kasubiri .Q.Q.11,~_t.t Judgr:ient delivered in the presence of both parties. ) ( ~: .. ' i .. ~) - ............ __ _. .. . L. K. MWIPOPO JUDGE AT MBEYA 16TH SEPTEMBER, 1998, /JJM