Mboya v. Kitambia and others, Civ. App. 8-A-67, 24/3/69, Platt J.

Mboya v. Kitambia and others, Civ. App. 8-A-67, 24/3/69, Platt J.

This is an appeal from a decree of a District Court awarding damages against defendant for malicious prosecution. Plaintiffs sued after they had been charged with taking part in an unauthorized procession c/s c/s 40(1) and s. 43(1), Police Force Ordinance, Cap. 322. The charge resulted from a letter written by defendant to the Police, in which plaintiffs were said to have participated, and during which abuse was said to have been shouted, either at defendant or the High Court of Tanzania. A Police Sergeant investigated the mater, during which he took a statement from the defendant including a list of six potential witnesses. The defendant also visited the Police Station upon two occasions in relation to the investigation. The sergeant took statements from the named witnesses, and was satisfied that a prima facie case had been raised. The matter was reported to the Regional C.I.D. Officer, who made the decision to prosecute. Plaintiffs denied that they had drawn up a procession and gone through Moshi shouting abuse. It was their contention that defendant, harbouring a grievance over previous business dealings with plaintiffs, had brought about the criminal prosecution for the purpose of revenge. The magistrate clearly appreciated that there were four essential elements in an action for malicious prosecution a) that plaintiffs were prosecuted by the defendant; b) that the criminal proceedings were terminated favourably to plaintiffs; c) that the prosecution was brought without reasonable of probable cause; and d) that it was maliciously motivated.

Held: (1) “The learned Magistrate held that the appellant had in reality brought an allegation to the notice of the police which he knew was false and which could not have, therefore, been based on reasonable grounds. The learned Magistrate cited various authorities in support of this proposition such as GLIMSK v. MOIVER (1962) 1 A E. R. 696, and MALZ v. ROSEN (1966) 1 A.E.R. 10. I think there is no doubt that if a person goes the Police with an account which he knows to be untrue, then not only has he no reasonable or possible

ground but also that  that fact in itself is strong evidence of malice, necessary for a successful action for malicious prosecution.” (2) “On the question of malice, the magistrate was satisfied that it arose out of his grievance which he wanted to revenge and therefore he trumped up a false charge against the respondents. On his view of the facts, which as I say must be accepted as being quite reasonable on the evidence, I find that the learned Magistrate could conclude that the appellant had been activated by malice in bringing a groundless allegation against the respondents.” (3) “I return then to the beginning of the argument, namely whether it was the appellant who was the real prosecutor ….. For the appellant, it was argued that however much the appellant may have been at fault, one cannot go past the fact that the decision to prosecute was that of the police. For the respondents, it was argued that that was not so. I must consider in some detail the decision mainly relied on – Gaya Prasad v. Bhagat Singh, (1908) (Allahbad) 4 I. L. R. 30 & 32 All. That was a decision of the Privy Council. The decision appealed against was to the effect that the person who had given false information to the Police did not prosecute the plaintiff. He merely gave the information to the Police, and the Police after investigation apparently thought fit to prosecute the plaintiff ….. Their Lordships made the following observations:- “If therefore a complainant does not go beyond giving  what he believes to be correct information to the police, and the police, without further interference on his part (except giving such honest assistance as they may require) think fit to prosecute, it would be improper to make him responsible in damages for the failure of the prosecution. But if the charge is false to the knowledge of the complainant; if he misleads the police by bringing suborned witnesses to support it, if he influences the police to assist him in sending an innocent man for trial before the magistrate; it would be equally improper to allow him to escape liability because the prosecution has not technically been conducted by him. The question in all cases of this kind must be – who was the Prosecutor? And the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion is not the criterion; the conduct of the complainant before and after making the charge must also be taken into consideration. Nor is it enough to say, the prosecution was instituted and conducted by the Police. That is again a question of fact.” If the law is properly stated that the mere setting of the law in motion is not the criterion but that the conduct of the complainant both before and after making the charge must also be taken into consideration, then the mere fact that ostensibly the police brought the prosecution is not the final test …. If it is true that the appellant brought a false allegation to the police supported falsely by his employees and so influenced the police to bring a prosecution against innocent people, it cannot be doubted that the responsibility for the prosecution was that of the appellant. On the facts found by the learned Magistrate, I thin he came to the right conclusion that the appellant was responsible for bringing a malicious prosecution. The damages he awarded have not been challenged, and appear reasonable and therefore the judgment is confirmed, with the result that the appeal is dismissed with costs.”