Ruhumbika, J.: This appeal by Amina Mpimbi arises from the decision of the Resident Magistrate's Court of B Singida in Civil Case no. 180 of 1987.
The appellant herein brought an action against the respondent Ramadhani Kiwe demanding to be paid a sum of shs. 50,000/= in damages for that malicious prosecuting she claimed was brought against her in the Primary Court of C Mtinko where the court acquitted her.
The trial court considered the evidence laid before it and decided against the appellant whereupon the appellant's claim was dismissed with costs. The trial court reasoned out that the appellant (who was the plaintiff before that court) did not satisfy the said court that she had proved "want of probable cause", "malice" or "bad faith" on the part D of the respondent herein (who was the defendant) when he prosecuted the appellant in the Primary Court of Mtinko.
The background to this appeal is interesting and is as follows: the appellant is married to the respondent's brother E and therefore she is a sister-in-law of the respondent. One time there was found a dead sheep in the shamba of the appellant (here the appellant talks of one such dead sheep while the respondent talks of two). Following this there were confrontations between the two parties before this court. The respondent banking on what he claims his F children had told him took it that it was the appellant who had slain the sheep as a result of straying into her shamba. The appellant on her part appeared to have disclaimed this.
Eventually, the respondent took up the matter with the police and up to the Primary Court of Mtinko where he G persecuted the appellant (presumably) for wilfully having killed his sheep.
According to the respondent, the appellant was acquitted not because the prosecution was malicious but because his children who had seen the appellant were not allowed to give evidence as they were of tender years. The H magistrate there it would appear did not bother to conduct the voire dire examination of those children. However, as this court was not favoured with the opportunity of perusing the record of the Primary Court of Mtinko, much to be relied upon are the submission of the parties themselves before this court. The appellant on her part supports the fact that one such a child of the respondent could not testify because of the child's tender years. One of these I children (Zena
A Ramadhani) gave evidence in the Resident Magistrate's Court at Singida on 19/5/88 and her age is shown to be thirteen years. The trial magistrate affirmed this child as he took stock of the fact that she did understand the nature of the affirmation. Zena told the court that actually the appellant cut the sheep (two sheep) which died in her shamba B and that the appellant injured another two sheep. The witnesses called by the appellant in the Resident Magistrate's Court (including the Ward Secretary) do not seem to have helped her. No one told the court that the dead sheep found in the appellant's shamba had been sent there by the respondent himself as claimed by the C appellant herself. They simply told the court below that they had seen the sheep carcasses in the appellant's shamba and that was all they said.
This court in dealing with Civil Appeal No.16 of 1984 (Dodoma Registry, unreported) and in which the parties were Amina Mpimbi v Tabuy Kilongo, had this to observe quoting the case of Herniman v Smith[1938] D A.C. 305 quoting:
It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty E is not to ascertain whether there is a defence, but whether there is reasonable and probable cause for prosecution.
In that case the House of Lords approved a definition of reasonable and probable cause, by Hawking, J. in Hick v Faulkner (1881) 8 Q.B.D. 167,171, as:
F an honest belief in the guilt of the accused based on a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead an ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty G of the offence imputed.
The respondent in these circumstance had "reasonable and probable cause" to believe that the appellant had wilfully H killed the sheep after straying into her shamba.
As the record of proceedings of the lower court does reveal, an amicable settlement of the matter could not be achieved between the parties and this precipitated the respondent to seek recourse in a court of law resulting in that criminal prosecution brought against the appellant at Mtinko Primary Court.
I For the appellant to have succeeded in her action against the
respondent, she should have proved in the court below that there was "malice" on the part of the respondent in that A he had prosecuted her in the Primary Court "without just cause or excuse" or that the respondent had no "reasonable and probable cause" when he prosecuted her over there.
Ipso facto, this appeal has no merit and is hereby dismissed with costs for the reason contained herein. B
Appeal dismissed.
1990 TLR 1
C
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