19970228 TZHC Tabora

I () L

IN THE HIGH COURT OF TANZANIA

ATTABORA MISCELLANEOUS CIVIL APPEAL NO.2 OF. l97 (From the judgement of Kahama I), Court Clvi. ease No.7/75) MASUDI MANYESHA . . . . . . . . . . . . . . . ....... . . ,. . . APPELLANT versus SELEMANI HABIBIJ ................... • a a • ...... • ..... RESPONDENT

J UD G M E N T MAPIcIANO, J: In this case the appellant commenced an action in the Kthama. District Court claiming damages against the respondent for malicious prosecution.. The subject matter of the suit was an allegation that on /5/75 the respondent calumniously lodged a complaint with a body of ten cell leaders, that the respondent had sold his nilling machine. He asked fOr shs.5,000/= damages plus costs. - • - On.15/12/75, when the case was called on for hearing, the learned Resident Magistrate of his own motion poaed a preliminary question of law as to whether or not the plaint disclosed any cause of action and then invited the appelant to amplify on the statement of facts on which he sought to base the action The appellant tried to do so. It transpired that nothing new of some substance was furnished by the appellant and the learned magistrate was of the opinion that in so far as the alleged complaint before the ten cell leaders was of a civil nature and in so far as there was no prosecution and no judgement of whatever label the action lacked a cause in law. He therefore rejected the plaint, presumably under rule II (a) of Order 7C.POC. It is contended in the memorandum of appeal that the court erred in holding that a claim of'malinious prosecution could not be sustained if ajn this case, the appellant was not prosecuted and acquitted on a criminal charge brought before

a court at the instance of the respondent. Enlarging, Mr. Kwikima counsel for the appellant argued that malicious prosecution is just as tenable from a civil suit as from a criminal case and that the body of ten cell leaders to whom the respondent complained was, in law, equivalent to an arbitration or judicial tribunal. I am not satisfied that thee is any force in these arguments. The matter of malicious prosecution is governed by the common law and the substance of the authorities which, I think, every practitioner knows is thus: That in an action of that nature, the plaintiff must plead and show four things, vim: (1) that he was prosecuted by the defendant on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without • ..../2 reasonable - Finally and by itself fatal to this appeal, itseenthat in the first place this appeal does not qualify to come to. this court. It was admitted by this court per inciria1/. On the authority of section 74, 75 and Order 40 rule I C.P.C, no appeal can lie frot an order for rejection of a plaint under order 7 rule II. See also the decision in Sullivan V Allimolamed Osnia (159) .A.239. It would seem that the only way the pla&ntiff might have sought to pursue the suit would have been to file a fre5h and proper plaint as provided under rule 13 of Order 7. - For these reason$, this appeal is dismissed. Costs to the respondent, TASORA. D. P. rdi½N0, 2th February, 199T JUDGE