MZUMBE UNIVERSITY

FACULTY OF LAW

PROGRAM: BACHELOR OF LAWS (LL. B) I

COURSE: LAW OF TORTS

CODE: LAW 128

LECTURER: MADAM. PATRICIA M

TASK: INDIVIDUAL ASSIGNMENT

NAME SWALEHE RASULI

REGISTRATION NO. 1236155/T.23

SUBMISSIONS DATE. 29 TH MAY 2024

QUESTION

Mr. P is a public figure of the United republic of Tanzania. Recently he was summoned before
the District Court of Mvomero to respond to the suit of Trespass to land filed against him by Mr.
K. Responding to a Call Mr. P engaged an advocate who prepared the Written statement of
Defense and on the day of filling the same he was informed by Court Clerk that Mr. K has
withdraw the suit. Mr P is aggrieved with the order of withdraw because its not the first time
Mr. K has instituted the case against him and withdraw the same.

Required:-

i. Advice Mr. P if he can succeed in a suit for malicious prosecution against Mr K.

ii. Will your answer in (I) above be the same if the case was prosecuted to its finality and ended
in favor of Mr.P

iii. Advice Mr. K on the possible defenses if any in case Mr. P has succeeded to instituted a
tortious case against him.
ISSUES

1. Whether Mr. P can succeed in a suit for malicious prosecution against Mr K?

2. Will you answer in (I) above be the same if the case was prosecuted to its finality and
ended in favor of Mr.P?
3. Mr. K on the possible defenses if any in case Mr. P has succeeded to instituted a tortious
case against him?

LAW APPLICABLE

1. Sunflag (T) Ltd v.Yerome Wambura & 4 others

2. Mbowa v. East Mengo Administration
3. Festo v. Mwakabana
4. Amina Mplmbi v. Ramadhani Kiwe
5. Bhoke Chacha v Daniel Misenya
6. The book of Binamungu

ARGUMENT

1. Whether Mr. P can succeed in a suit for malicious prosecution against Mr K?

Refers to the scenario the Mr.P was aggrieved for the acts of Mr K to withdraw cases about him
and now he needs to institute the case of Malicious against Mr K. By the evidence to the case of
Festo v. Mwakabana1 it provides for the grounds inorder for the plaintiff to sustain an action for
malicious prosecution.The plaintiff has to prove the following;-

 The commencement of the case proceedings: That it can be civil or criminal

proceedings, In the scenario Mr.P can use the civil proceedings as the evidence whereby
in the original case he was the defendant and Mr.K's plaintiff. According to Pr.
Binamungu2 shows that te defendant in the initial casebecomes the plaintiff in the
maliciousprosecution suit and the plaintiff in theoriginal case becom es the defendant.
 Malice: The plaintiff must prove that the defendant acted with malice, meaning they
had a wrongful intention or purpose in initiating the criminal proceedings. Refers to the
scenario Mr P should prove that the case was instuted malicious against him as in the
case of Bhoke Chacha v Daniel Misenya3 that the plaintiff has to establish that the report
from the defendant was malicious. This can be accomplished by presenting evidence
1
[1983]TLR 154

2
Binamungu C.M( 2002) Law of Torts in Tanzania Department of law mzumbe.4 1969) HCD 25 pg 27

3
[1983] T. L.R. 329
 that will enable the court to determine whether the respondent's actions were
malicious.
 No reasonable or probable cause: The plaintiff must demonstrate that there was no
reasonable basis or probable cause for the civil or criminal proceedings. In the scenario
it shows that after the Mr.K withdraw the case at the scene Mr.P write the Statement of
Defense so as Mr.P can be use this as the evidence that Mr.K have no probable cause to
institute the case. position of the law that malice may be inferred as stated in Jeremy
Clifford v The Chief Constable of the Hertfordshire Constabulary4 that case, the suit
involved a claimant who believed he had been maliciously prosecuted for possession of
indecent images. Justice Mackay remarked that- ."... malice ”can be Inferred from the
absence of reasonable and probable cause if the evidence warrants it".
 The plaintiff suffered some damage; Plaintiff has to prove that he or she suffered
damages as a result of the prosecution complaints, Mr.P should prove that he's suffered
some of the damage against Mr.K prosecution refers to the facts of the scenario it
shows that Mr.P is a public figure of United Republic of Tanzania so as he can use as the
evidence that accord to the complaints of the Mr.K it led that to disparage his
reputation. The damages may not necessarily be disparage of reputation as in the
Sunflag (T) Ltd v.Yerome Wambura & 4 others5 where the court stated that plaintiffs
suffered loss ofemployment and income due to the malicious prosecution. Further the
court awarded Tshs.2,000,000/= for each of the respondents to meet the justice of the
case.
 Termination in favor of the plaintiff: It means that the proceedings complained of ended
in his favour (original defendant). The original case must end before the defendant in
that casemay file a malicious prosecution suit. As the facts of the scenario shows that
the case has been withdraw and it's does not finished yet, So that it make fall for the
Mr.P to file a malicious prosecution against Mr.K, in cited the case of Amina Mplmbi v.
Ramadhani Kiwe6 where this Court (Ruhumbika, J.) held that: -"For proceeding with a
malicious prosecution claim, the plaintiff must show that the original case was concluded
in her on his own favour".

In the end i find out that Mr P he can not succeed to sue Mr.K for malicious prosecution due to
the reason that the prosecution does not ended at all, Thus it make the failure of one ground of
the malicious prosecution as stated in Mbowa v. East Mengo Administration7 the defunct East
Africa Court of Appeal stated that: -"The plaintiff in order to succeed, all the four essentials or
4
[2011] EWHC 815 (QB)

5
Civil Appeal No. 89 of 2005, Court of Appeal of Tanzania at Arusha, [Unreported]

6
[1990] T.L.R

7
[1972] EA 353
requirement of malicious prosecution; as set out above, have to be fulfilled and that he has
suffered damage. In other words, the four requirements must "unite" in order to create or
establish a cause of action. If the plaintiff does not prove them he would fail in his action."

2. What if the case was prosecuted to its finality and ended in favor of Mr.P?

My answer in the (i) will not be the same because by such circumstance it will make the victim
Mr.P His case for malicious prosecution would be strengthened by this. If the case turned out
well, it would probably show that Mr. K's lawsuit was without reasonable cause, which is a
necessary component of proving malicious prosecution. In the case of Festo v. Mwakabana8,
the appellant having a dispute over ownership of land with his neighbour, harvested maize
growing on the land. The respondent preferred a criminalcomplaint against the former. The
appellant was tried and convicted by the trial magistrate butacquitted on appeal. The judge
observed that it could not be disputed that so far as plaintiff wasconcerned the criminal
proceedings had been terminated in his favour thereby satisfying. Theessential requisite
condition for bringing an action for malicious prosecution.

3. Possible defenses if any in case Mr. P has succeeded to instituted a tortious case against
him?

There are defenses that Mr. K may be able to use if Mr. P is successful in bringing a tortious
case against him for malicious prosecution. Among the defenses that could be employed are:-

 There was a Probable cause; Mr. K could argue that there was a valid reason or probable
cause for initiating the legal action against Mr. P, and that it was not done out of
malice9. Thus Mr. K should showing that there was no malice or improper motive
involved, or proving that the withdrawal of the suit was based on legitimate reasons
unrelated to malicious intent.
 Absence of Malice; Mr. K also may contend that no actions were motivated by ill will or
malice, and that there was no malevolent purpose behind filing the lawsuit.

CONCLUSION

8
[1983]TLR 154

9
Binamungu C.M( 2002) Law of Torts in Tanzania Department of law mzumbe.4 1969) HCD 25 pg 28
 REFERENCES

CASES

Jeremy Clifford v The Chief Constable of the Hertfordshire Constabulary [2011] EWHC 815 (QB)

Bhoke Chacha v Daniel Miseny [1983] T. L.R. 329

Festo v. Mwakabana [1983] T. L.R. 154

Amina Mpimbi v. Ramadhani Kiwe [1990] T.L.R

Mbowa v. East Mengo Administration [1972] EA 353

Sunflag (T) Ltd v.Yerome Wambura & 4 others Civil Appeal No. 89 of 2005, Court of Appeal of
Tanzania at Arusha, [Unreported]