20080624 TZHC Mwanza

IN THE H~GH COURT OF THE UNITED REPUBLIC OF TANZANIA· IN THE DISTRICT REGiSTRY. · ATMWANZA. HC. CIVIL CASE NO.10 OF 2004 {ADR NO.10/2004) EX-8.83563/SGT SYLIVESTER S. NYANDA ... PLAINTIFF Versus 1. THE INSPECTOR GENERAL} OF POLICE .............. DEFENDANTS 2. THE ATTORNEY GENERAL RULING . MACKANJA, J: The pl~intiff instituted a · suit in which he claims damages against the defendants based on the :tort termed malicious prosecution. The defendants have jointly raised two preliminary points of law- . . . i. that the suit_. is both misconceived and unmaintainable· in· -law; c1nd · 2~ that the plaintiff. has no cause of action against both - . _·· defendants;· -·· defenda-nts= ,-\,vhen direction . to .- argue the · preliminary · · objections in written- form were made. It appear, however, that they we.re signed by ·Miss Dora Komba learned State .. Attorney. So I wfl I refer to her as the one who made ,-the case for the defendQnts. It was submitted by· Miss Dora - Komba, learned State Attorney, that in order to maintain a suit_ for malicious prosecution, the plaintiff must show that all the five ingrients of that tort are present. Those ingredients were ·1aid down in the. case of Hosia Lalata v. Mwasote (1980) T.L.R. 150 and were considered in the later case of Jeremiah Kamana v. Bugomola Mayandi (1983) T.L.R. 123. It was further alleged by the defendants that the plaintiff cannot prove his claims where there ts a reasonable suspicion that an offence has been committed and good grounds for thinking that a particular person is responsible do exist. That this is so because it is_ the duty of every citizen to pass on such . information to the police. On his part the plaintiff submitted that what is · important is that the plaintiff is only required to show that l' i i two" interrelated issues exist, namely, who set in motion legal_ ' . ~ . processes against the plaintiff and whether the same was actuate~ by malice_. __ II -_ · · With due respect to Miss Dora Komba, learned State i . I Attorney, and the :·plaintiff, there is no doubt that the rival I 2 II . i . the ingredients which constitute the tort under considerati6n are matters that require proof by evidence. They are the ,.); very foundation of the tort. So no one will know that there ' , -t,1 .' . was,·· or there .was. not evidence of malice. Indeed, the pfaintiff will have the duty to prove that he suffered damages for which he .is entitled to some recompense. In those circumstances the issues raised in the preliminary points of law are premature. In. the result the preliminary objections are dismissed. Costs shall abide the result. Sgd: Josephat M. Mackanja JUDGE AtMwanza 4/6/2008 3 / · arguments are premature. The question of the existenc~ of • ;.., ~-- lit • the ingredients which constitute the tort under consideration . . . are matters that require proof by ev·idence. They are the very foundation of the tort. So no one will know that there was, or there was not evidence . of malice: Indeed, the plaintiff will have the duty to prove that he ·suffered damages for which he is entitled to some recompense. In those. circumstances the issues raised in the preliminary points of law are premature. In the result the preliminary objections are dismissed. I ' ' . Costs shalr abide the result. I Sgd: Josephat M. Mackanja JUDGE . AtMwanza 4/6/2008 ·, 3 •:..,~~1',?r h ..... : - . • • - , • ··l,,. • ~·..~... ' Date:24/6/2008 Coram: H. A. Shaidi - Ag. DR. · Applicant:. Present. Respondent: Absent. . \ B/C: Ma_kole/L~onard ., . Coort: Ruling 'ctelivered in- the presence of the Respondent but not others. H. A. Shaidi AG DISTRICT REGISTRAR · 24/06/2008 ...... . . _.,"::-; ·.. ~:~ .; 4