Nkulu v. Mkungile (PC) Civ. App. 18-Dodoma-71; 18/4/72; Kwikima Ag. J.

 

Nkulu v. Mkungile (PC) Civ. App. 18-Dodoma-71; 18/4/72; Kwikima Ag. J.

This was an appeal against the dismissal of his claim for damages for libel brought by a primary court magistrate. The surrounding facts were that the respondent had, before him, lost two suits between himself and wife. He then, in one of the petitions of appeal, ascribed his lack of success to the “amorous relationship” between the magistrate and his wife.

            Held: (1) “The learned resident magistrate who heard the first appeal was of the view that the magistrate could not sue the respondent because the communication was made in the course of a judicial proceeding and was therefore privileged. To this view I fully subscribe. I would hasten to add, however, that justice would be in jeopardy if litigants were scared to allege misconduct on the part of magistrates just because they were not in a position to prove them should they be called upon to do so. I suppose a magistrate has to accept as a fact of life the prospect of being vilified without being able to do anything about it. On this score alone, I would dismiss the appeal.” (2) “There is another score on which I would dismiss the appeal. Libel is actionable under the common law of tort. There is no evidence in this case to show that under the customs of the tribe of the parties such action is maintainable. It is therefore doubtful if the suit was brought in the right court.” (3) Appeal dismissed.