MAFUMBA JILAWAJI v BUDU MNYAGOLYA 1992 TLR 310 (HC)

 MAFUMBA JILAWAJI v BUDU MNYAGOLYA 1992 TLR 310 (HC)

Court High Court of Tanzania - Tabora

Judge Korosso J

G

14 October, 1992

Flynote

Tort - Malicious prosecution - Appellant and others arrested on suspicion of stealing

respondents' cattle - Ward Secretary reported matter to police - Whether respondent

H prosecuted appellant and others.

Tort - Malicious prosecution - Public prosecution - Whether Government can be held

vicariously liable.

Tort - Malicious prosecution - Prosecutions conducted by public prosecutors and

State I Attorneys - Difficulty of proving prosecution by individual person.

1992 TLR p311

Tort - Malicious prosecution - Prosecution conducted in Primary Courts by private

citizens A against other citizens - False imprisonment safest course of action by

aggrieved party.

-Headnote

The Appellant and others were arrested by the authority because they failed to

respond to a theft alarm as quickly as they ought to have done as villagers. They

arrived at the B scene after a lapse of 6 hours. Consequently they became the

suspects of the theft of 463 head of cattle, the property of the respondent. It was the

ward secretary who reported the matter to the police and the village. The trial

District Magistrate dismissed C with costs an action by the appellant and the others

for compensation for board, lodging, bus fare and hiring transport.

Held: (i) It is self evident that the respondent was completely unconnected with the

initial arrest, detention and the decision whether or not to formally charge the D

appellant before a court of law. The suit was frivolous and the appeal should be

dismissed with costs;

(ii) Obiter: prosecution is one of the essentials of the sort of malicious

prosecution. No plaintiff can ever satisfy this essential in a criminal case, this is

because most E prosecutions before District and High Courts are conducted by

public prosecutors and State Attorneys;

(iii) Obiter: in Primary Courts prosecutions are conducted by private citizens

against other citizens. Where it turns out that the complainant made a report without

F reasonable or probable cause and if malice can be proved either expressly or

impliedly, the safest course to take on the plaintiff part would be to rely on false

imprisonment and incidental expenses incurred in his defence of the charge from the

very outset to the time G the prosecution ends in her favour;

(iv) Obiter: whether the Government can be held vicariously liable for

malicious prosecution just as much as it can be held vicariously liable for certain

negligent acts of its employees is an extremely sensitive and controversial area of law.

Time may one H day come when individual citizens will call upon Judges to

adjudicate between them and the Government on suits based on malicious

prosecutions by law enforcing officers.

Case Information

Appeal dismissed. I

1992 TLR p312

[zJDz]Judgment

Korosso, J.: This is an appeal lodged by the Appellant challenging the decision of A

the lower Court. The appellant was one of 7 Plaintiffs who unsuccessfully sued the

Respondent for malicious prosecution. The appellant and Co-Plaintiffs claimed as

compensation the sum of Shs.88,400/= for board and lodging, the sum of Shs.29,200/=

B for bus fare and the sum of Shs.10,000/= for hiring transport. The learned trial

Magistrate dismissed the suit with costs.

In my view the suit was frivolous.

According to the evidence of one Ramadhan s/o Omari (PW.9), the village Secretary,

the Appellant and his Co-Plaintiffs were arrested by the village authority because

they C failed to respond to the alarm as quickly as they ought to have done as

villagers. They arrived at the scene after a lapse of 6 hours. Consequently, the

Appellant and Co-Plaintiffs became the suspects of the theft of 463 heads of cattle, the

property of the Respondent. According to PW.9 it was the Ward Secretary who

reported the matter D to police. It was the Ward Secretary who went to the village

in company of the police.

It is selfevident that the Respondent was completely with the initial arrest, detention

and the decision whether or not to formally charge the Appellant before a court of

law. E

Before I bring the judgment to a close, I intend to observe fairly briefly about the

difficulty in providing a case based on malicious prosecution by one individual citizen

against the other citizen. Prosecution being one of the essentials of the tort of

'malicious prosecution', no plaintiff can ever satisfy this essential because most

prosecutions F before District and High Courts are conducted by Public Prosecutors

and State Attorneys. It is a different matter if the complainant conducts a private

prosecution.

It is, however, different in Primary Courts where prosecutions are so conducted by G

private citizens against other citizens. Where it turns out that the complainant made a

report without reasonable or probable cause and if malice can be proved either

expressly or impliedly, the safest course to take by the plaintiff would be to rely on

false imprisonment and incidental expenses incurred in his defence of the charge

from the H very outset to the time the prosecution ends in his favour.

In the course of my dealing with this appeal based on the tort of malicious

prosecution, I found myself debating within myself long and seriously on whether or

not the Government can be held vicariously liable for malicious prosecution just as

much as it I can

1992 TLR p313

MOROSSO J

be held vicariously liable for certain negligent acts of its employees. This is an A

extremely sensitive as well as controversial area. But it is not that impossible to

impute malice especially in murder and manslaughter cases where there is profuse

evidence that certain suspects are held in custodial confinement for over three or

more years when there is little or mere suspicious evidence against the suspects. B

One wonders why these unnecessary incidents of custodial confinement should

continue to be of frequent occurrence in our law courts particularly the High Courts

when it is common knowledge that we have fairly experienced, learned lawyers

manning the C Chambers in all High Court Centres. One still wonders why steps are

not being taken by these learned lawyers to enter 'Nolle prosequi' in favour of

suspects as soon as it comes to their attention that a certain case is a hopeless hope.

Articles 13 (6) of the Constitution is couched in eloquent language touching on

individual rights before D Courts of law. Most unfortunately these rights are

indifferently being trampled down as if they were useless chaff without the least

excuse or apology to the victims of the 'Administrative Organ of the Government'.

I have fresh in my mind a recent Tabora Criminal Sessions No. 99/89 RVS Maganga E

- case which ended with an application for a 'Nolle Prosequi' on 2/9/92 after the

suspect had been in custody since April, 1988. When I discharged the suspect, it

might have rang in his mind that he was very lucky while what I did was to sadly

declare the end of his unnecessary torture and continued loss of personal liberty for a

period of F about 4 years. This was a case in which there was not even strong

suspicion against the suspect. Conversely, there was the statement of one witness who

mentioned the Accused as having gone over to their house, awakened them and then

informed then of the misfortune that had befallen the deceased and his wife on the

night. This was a G case which a law undergraduate at the University of Dar es

Salaam, conducting a mock trial in Nkrumah Hall, would have hastily ruled that there

was no case to answer and then acquit the Accused, perhaps with a sigh of sympathy.

In a case of this kind and in many other pathetic cases, courts of law are the

unfortunate scapegoats. As was in H this case of Maganga, it was the District Court

that first signed the warrant committing the suspect to prison. The court ordered his

occasional remand in prison until on 2/9/92 when I signed a discharge to restore to

him his once lost liberty. I

1992 TLR p314

Another serious, adverse effect of keeping such hopeless cases until sessions take A

place is that they deny other suspects the right to be heard at such sessions because

their places are being taken up by these selfevidently hopeless cases.

Time may one day come in not a distant tomorrow when these humble citizens of

this B free land will screw up their courage and then provoke the wisdom of the

Judges by calling upon them to adjudicate between them and the Government on

suits based on malicious prosecutions by law enforcing officers.

With the above observations, I come back to the issue before me and I resolve it by

dismissing the appeal. C

Appeal dismissed.

1992 TLR p314

D