ex b 83563sgt sylivester s nyanda vs inspector general of police another 2008 tzhc 197 4 june 2008

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA HC. CIVIL CASE NO.IO OF 2004 (ADR NO.10/2004) EX-B.83563/SGT SYLIVESTER S. NYANDA...PLAINTIFF Versus 1. THE INSPECTOR GENERAL" OF POLICE !>-............. DEFENDANTS 2. THE ATTORNEY GENERAL RULING MACKANJA. J: The plaintiff 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- 1. that the suit, is both misconceived and unmaintainable in law; and 2. that the plaintiff. has no cause of action against both defendants. ’ Mr. Meiiara, learned State Attorney appeared for the defendants when direction to argue the preliminary objections in written form were made. It appear, however, that they were signed by Miss Dora Komba learned State Attorney. So I will refer to her as the one who made the case for the defendants. 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 laid down in the case of Hosia La lata 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 is 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 two interrelated issues exist, namely, who set in motion legal processes against the plaintiff and whether the same was actuated by malice. With due respect to Miss Dora Komba, learned State Attorney, and the "plaintiff, there is no doubt that the rival the ingredients which constitute the tort under consideration are matters that require proof by evidence. 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. Costs shall abide the result. Sgd: Josephat M. Mackanja JUDGE At Mwanza 4/ 6/2008 3 arguments are premature. The question of the existence of the ingredients which constitute the tort under consideration are matters that require proof by evidence. 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. Costs shall abide the result. Sgd: Josephat M. Mackanja JUDGE AtMwanza 4/ 6/2008 Date: 24/6/2008 Coram: H. A. Shaidi - Ag. DR. Applicant: Present. Respondent: Absent. B/C: Makole/Leonard Court: Ruling delivered in the presence of the Respondent but not others. H. A. Shaidi AG DISTRICT REGISTRAR 24/ 06/2008 ify that this is a true copy of the original, *r- *? \ * ^ , \ 't \ '•'"•I \^ | ,, ■■:« ,