Festo v. Mwakabana Civ. App. 35-D-70; 20/10/71; Mwakasendo Ag. J.

Festo v. Mwakabana Civ. App. 35-D-70; 20/10/71; Mwakasendo Ag. J.

The appellant unsuccessfully sued the respondent for malicious prosecution in the Mbeya District Court. The circumstance out of which these proceedings arose re as follows: there was a long standing dispute between the respondent and an appellant over the ownership of a piece of land. The appellant harvested maize growing on the land and the latter preferred a criminal complaint against the former. In the complaint he alleged that the appellant had stolen his maixe from his shamba. This shamba was the disputed area of land between the parties which was established as being the respondents. As a result of the complainant the Police arrested the appellant and charged him with the theft of the maize valued at Shs. 655/=. He was found guild and was sentenced to a fine of Shs. 400/= or months’ imprisonment in default. He however appealed to the High Court and his conviction was quashed on the ground that the trial magistrate had misdirected himself in not considering the defence of claim of right put forward by him.

            Held: (1) “[I]t cannot be disputed that so far as plaintiff was concerned he criminal proceedings had been requisite condition for bringing an action for malicious prosecution.” (2) “It is now, I think settled law that in an action for malicious prosecution the plaintiff to succeed must establish first, that the defendant acted without reasonable and probable cause, secondly that the defendant acted maliciously and thirdly, that he has suffered some damage recognized by law. What is reasonable and probable cause is not an easy thing to define but I think it is now accepted that the definition prided by Hawkins J. in Hicks v. Faulkner (1978) 8 Q B D 167, 171, is the best guide we have in determining actions of this type.” “[The definition of] Hawkins J. has been repeatedly adopted and approved by the Court of Appeal and the House of Lords in England – vide(Lebo v. D. Buckman Ltd. and another (1952) 2 All ER 1057, Tmpest v. Snowden (1952) IKB 130, Herniman v. Smith (1938) A. C. 305 and Glinski v. Mc IVER (1962) A. C. 726.” (3) “While I appreciate that decisions of English Courts re not binding upon this court I can find no good reason to reject a principle which is sound and in accord with reason and common sense simple because it happens to be derived from foreign sources. In my opinion, there is no good reason for not accepting the sound formula adopted by Hawkins J. and I will accordingly adopt this formula as a guide in the determination of this case.” (4) “Now, it is for the plaintiff to prove his case to the satisfaction of the court, that the defendant in prosecution him had no reasonable and probable cause for instituting the proceedings, and he can only do so on the production of evidence which when examined would show the want of reasonable and probable cause by the prosecutor/defendant.” [His Lordship them examined the facts which led to the respondent prosecuting the appellant and held that there was ample evidence leading to the conclusion that the appellant had harvested maize growing on the respondent’s shamba. He continued:] “There then were the facts which were in possession of the defendant when he preferred a criminal complaint against the plaintiff and subsequently proceeded with his prosecution. It is upon this state of the evidence that we have to decide whether the defendant had a reasonable and probable cause for the prosecution of the plaintiff. In the circumstances in which the defendant found himself; and on the facts ascertained by him, I have no doubt in my own mind that the facts available to the defendant would induce a conviction founded on quite reasonable grounds of the existence of a state of circumstances which would reasonably lead any ordinarily prudent and cautions man placed in defendant’s position to the conclusion that the plaintiff was probably guilty of the crime imputed. It may perhaps be argued that the defendant should have asked for an explanation from the plaintiff. Undoubtedly his in some case is a good thing to do but there can be no general rule on the matter.” Citing Lord Atkin in Herniman v. Smith (1938) A. C. 305 at page 319); (5) Appeal dismissed.