AMINA MPIMBI v RAMADHANI KIWE 1990 TLR 6 (HC)

 AMINA MPIMBI v RAMADHANI KIWE 1990 TLR 6 (HC)

Court High Court of Tanzania - Dodoma

Judge Ruhumbika J

E 25 April, 1990

Flynote

Tort - Malicious prosecution - Onus of proving elements of the tort.

-Headnote

F This appeal arises from the decision of the Resident Magistrate's Court of Singida

where the appellant brought action against the respondent demanding to be paid

Tshs. 50,000/= in damages for malicious prosecution she G claimed was brought

against her in the Primary Court of Mtinko. One time there was found a dead sheep

in the Shamba of the appellant. Respondent took it that it was the appellant who had

slain the sheep. Trial Resident Magistrate decided against the appellant with costs,

hence her appeal to the High Court.

H Held: (i) In the circumstances the respondent had reasonable and probable cause

to believe that the appellant had wilfully killed the sheep after they strayed into her

shamba;

(ii) for the appellant to have succeeded in her action against the respondent,

she should have proved in court I below that there was "Malice" on the part of the

respondent in that he had prosecuted her in

1990 TLR p7

RUHUMBIKA J

the Primary Court "Without just cause or excuse" or that the respondent had no

"reasonable and probable cause" A when he prosecuted her there.

Case Information

Appeal dismissed.

[zJDz]Judgment

Ruhumbika, J.: This appeal by Amina Mpimbi arises from the decision of the Resident

Magistrate's Court of B Singida in Civil Case no. 180 of 1987.

The appellant herein brought an action against the respondent Ramadhani Kiwe

demanding to be paid a sum of shs. 50,000/= in damages for that malicious prosecuting

she claimed was brought against her in the Primary Court of C Mtinko where the

court acquitted her.

The trial court considered the evidence laid before it and decided against the

appellant whereupon the appellant's claim was dismissed with costs. The trial court

reasoned out that the appellant (who was the plaintiff before that court) did not

satisfy the said court that she had proved "want of probable cause", "malice" or "bad

faith" on the part D of the respondent herein (who was the defendant) when he

prosecuted the appellant in the Primary Court of Mtinko.

The background to this appeal is interesting and is as follows: the appellant is married

to the respondent's brother E and therefore she is a sister-in-law of the respondent.

One time there was found a dead sheep in the shamba of the appellant (here the

appellant talks of one such dead sheep while the respondent talks of two). Following

this there were confrontations between the two parties before this court. The

respondent banking on what he claims his F children had told him took it that it was

the appellant who had slain the sheep as a result of straying into her shamba. The

appellant on her part appeared to have disclaimed this.

Eventually, the respondent took up the matter with the police and up to the Primary

Court of Mtinko where he G persecuted the appellant (presumably) for wilfully

having killed his sheep.

According to the respondent, the appellant was acquitted not because the prosecution

was malicious but because his children who had seen the appellant were not allowed

to give evidence as they were of tender years. The H magistrate there it would

appear did not bother to conduct the voire dire examination of those children.

However, as this court was not favoured with the opportunity of perusing the record

of the Primary Court of Mtinko, much to be relied upon are the submission of the

parties themselves before this court. The appellant on her part supports the fact that

one such a child of the respondent could not testify because of the child's tender

years. One of these I children (Zena

1990 TLR p8

RUHUMBIKA J

A Ramadhani) gave evidence in the Resident Magistrate's Court at Singida on

19/5/88 and her age is shown to be thirteen years. The trial magistrate affirmed this

child as he took stock of the fact that she did understand the nature of the

affirmation. Zena told the court that actually the appellant cut the sheep (two sheep)

which died in her shamba B and that the appellant injured another two sheep. The

witnesses called by the appellant in the Resident Magistrate's Court (including the

Ward Secretary) do not seem to have helped her. No one told the court that the dead

sheep found in the appellant's shamba had been sent there by the respondent himself

as claimed by the C appellant herself. They simply told the court below that they

had seen the sheep carcasses in the appellant's shamba and that was all they said.

This court in dealing with Civil Appeal No.16 of 1984 (Dodoma Registry, unreported)

and in which the parties were Amina Mpimbi v Tabuy Kilongo, had this to observe

quoting the case of Herniman v Smith [1938] D A.C. 305 quoting:

It is not required of any prosecutor that he must have tested every possible relevant

fact before he takes action. His duty E is not to ascertain whether there is a defence,

but whether there is reasonable and probable cause for prosecution.

In that case the House of Lords approved a definition of reasonable and probable

cause, by Hawking, J. in Hick v Faulkner (1881) 8 Q.B.D. 167,171, as:

F an honest belief in the guilt of the accused based on a full conviction, founded

upon reasonable grounds, of the existence of a state of circumstances, which,

assuming them to be true, would reasonably lead an ordinary prudent and cautious

man, placed in the position of the accuser, to the conclusion that the person charged

was probably guilty G of the offence imputed.

The respondent in these circumstance had "reasonable and probable cause" to believe

that the appellant had wilfully H killed the sheep after straying into her shamba.

As the record of proceedings of the lower court does reveal, an amicable settlement of

the matter could not be achieved between the parties and this precipitated the

respondent to seek recourse in a court of law resulting in that criminal prosecution

brought against the appellant at Mtinko Primary Court.

I For the appellant to have succeeded in her action against the

1990 TLR p9

respondent, she should have proved in the court below that there was "malice" on the

part of the respondent in that A he had prosecuted her in the Primary Court

"without just cause or excuse" or that the respondent had no "reasonable and probable

cause" when he prosecuted her over there.

Ipso facto, this appeal has no merit and is hereby dismissed with costs for the reason

contained herein. B

Appeal dismissed.

1990 TLR 1

C