Mafumba Jilawaji vs Budu Mnyagolya [1992] TZHC 34 (14 October 1992)


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

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

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.


▲ To the top