Mwalusanya, J: B
The appellant Nicodemus s/o Nyambuya was successfully sued by the respondent Hamisi s/o Ramadhani for a tort of malicious prosecution at Kintinku Primary Court in Nanyoni District and was condemned to pay Shs 300,000/= as damages. His appeal to Manyoni District Court was dismissed but the damages were reduced to Shs 150,000/=. He is now making a second appeal to this court. C
His main ground of appeal is that the ingredients of the tort of malicious prosecution were not proved. He contends that it was not proved that he was actuated by malice and that it was not proved that he acted without reasonable and probable cause. D
The suit was filed under customary law of the Wagogo and Wanubi of Nanyoni District which is similar. Unfortunately the learned District Magistrate thought the ingredients of the tort of malicious prosecution are the same under the English E common law and under customary law. That is why the learned District Magistrate cited the ingredients of the tort of malicious prosecution under English common law as expounded by Samatta J (as he then was) in the case of Hosea Lalata v Gibson Mwasoto (1). The learned District Magistrate was clearly in error. F
However counsel for the respondent Mr Mbesi has contended that the ingredients of the tort of malicious prosecution under the English Common Law and under Customary Law are almost similar.
My view is that the ingredients of the tort of malicious prosecution under the G relevant customary law has to be gathered from the record of the trial court. Under s 37(3)(a) of the Magistrate's Court Act No 2 of 1984, this court is duty bound to take judicial notice of what the trial court found to be the ingredients of a particular tort. According to the record of the trial court, malice is not ingredient of the tort of malicious prosecution. The record shows that it is enough if the defendant had no H reasonable and probable cause to prosecute the plaintiff. Here the trial court found as a fact that the defendant had no reasonable and probable cause to prosecute the plaintiff. The defendant instead of leaving it to the police to investigate if the spare parts of a milling machine found with the I
A plaintiff were those stolen from the milling machine of the defendant's village, went out of his way to tell the police that the plaintiff was the thief and should be arrested. The defendant insisted the arrest of the plaintiff even when he was shown the spare parts found with the plaintiff to be of Lister milling machine while the stolen spare parts were of Raslon milling machine. With that evidence indeed B the defendant had no reasonable and probable cause to prosecute the plaintiff.
While I am doubtful if the defendant had any malice, I am satisfied that the trial court was correct to hold that he had no reasonable and probable cause to prosecute the plaintiff. C
The appellant has not appealed against the quantum of damages of Shs 150,000/= as awarded by the District Court. I find it to be a reasonable award and so I will not interfere with it.
In the event the appeal fails and it is dismissed with costs. Order accordingly. D
E