NICODEMUS NYAMBUYA v HAMISI RAMADHANI 1995 TLR 118 (HC)

 

NICODEMUS NYAMBUYA v HAMISI RAMADHANI 1995 TLR 118 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J E

(PC) Civil Appeal No 7 of 1994

January 31, 1995

Flynote

F Tort - Malicious prosecution - Whether ingredients of tort in common law is the

same as in customary law.

Customary law - Tort - Malicious Prosecution - Ingredients of the tort.

-Headnote

G In this appeal the High Court considered whether the ingredients of the common

law tort of malicious prosecution are also the ingredients under customary law.

Held:

(i) Under s 37(3)(a) of the Magistrates' Courts Act, 1984, the High Court is

duty bound to take judicial notice of what the Trial Court found to be the ingredients

of a particular tort;

H (ii) According to the record of the Trial Court malice is not an ingredient

of the tort of malicious prosecution; it is enough if the defendant had no reasonable

and probable cause to prosecute the plaintiff;

(iii) The Trial Court correctly found as a fact that the defendant had no

reasonable and probable cause to prosecute the plaintiff.

Case Infomation

Appeal dismissed. I

1995 TLR p119

MWALUSANYA J

Case referred to: A

(1) Hosea Lalata v. Gibson Marasote [1980] TLR 154

Mbezi for the respondent

[zJDz]Judgment

Mwalusanya, J: B

The appellant Nicodemus s/o Nyambuya was successfully sued by the respondent

Hamisi s/o Ramadhani for a tort of malicious prosecution at Kintinku Primary Court

in Nanyoni District and was condemned to pay Shs 300,000/= as damages. His appeal

to Manyoni District Court was dismissed but the damages were reduced to Shs

150,000/=. He is now making a second appeal to this court. C

His main ground of appeal is that the ingredients of the tort of malicious prosecution

were not proved. He contends that it was not proved that he was actuated by malice

and that it was not proved that he acted without reasonable and probable cause. D

The suit was filed under customary law of the Wagogo and Wanubi of Nanyoni

District which is similar. Unfortunately the learned District Magistrate thought the

ingredients of the tort of malicious prosecution are the same under the English E

common law and under customary law. That is why the learned District Magistrate

cited the ingredients of the tort of malicious prosecution under English common law

as expounded by Samatta J (as he then was) in the case of Hosea Lalata v Gibson

Mwasoto (1). The learned District Magistrate was clearly in error. F

However counsel for the respondent Mr Mbesi has contended that the ingredients of

the tort of malicious prosecution under the English Common Law and under

Customary Law are almost similar.

My view is that the ingredients of the tort of malicious prosecution under the G

relevant customary law has to be gathered from the record of the trial court. Under s

37(3)(a) of the Magistrate's Court Act No 2 of 1984, this court is duty bound to take

judicial notice of what the trial court found to be the ingredients of a particular tort.

According to the record of the trial court, malice is not ingredient of the tort of

malicious prosecution. The record shows that it is enough if the defendant had no H

reasonable and probable cause to prosecute the plaintiff. Here the trial court found as

a fact that the defendant had no reasonable and probable cause to prosecute the

plaintiff. The defendant instead of leaving it to the police to investigate if the spare

parts of a milling machine found with the I

1995 TLR p120

MWALUSANYA J

A plaintiff were those stolen from the milling machine of the defendant's village,

went out of his way to tell the police that the plaintiff was the thief and should be

arrested. The defendant insisted the arrest of the plaintiff even when he was shown

the spare parts found with the plaintiff to be of Lister milling machine while the

stolen spare parts were of Raslon milling machine. With that evidence indeed B the

defendant had no reasonable and probable cause to prosecute the plaintiff.

While I am doubtful if the defendant had any malice, I am satisfied that the trial court

was correct to hold that he had no reasonable and probable cause to prosecute the

plaintiff. C

The appellant has not appealed against the quantum of damages of Shs 150,000/= as

awarded by the District Court. I find it to be a reasonable award and so I will not

interfere with it.

In the event the appeal fails and it is dismissed with costs. Order accordingly. D

1995 TLR p120