19711012 TZHC Mwanza

44$I IN THE HIGH COtIRT OF TMTZAT"IA AT TAT -. - Appellate Jurisdiction. (r) rt TITTT ATJTAT Mfl

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OV LII 10r7( .J)( LI (From the decision of the District Court of bhinyana District. at Shinyanga in Civil p]eai Nc .2 of 1970 Before N.tI.Bide'oeri District iagistrate. 0riinal 'ivil 0 ase No.99 of 1969 of th Primary Court of Itwang4. ecre S.Mohamed, Primary Court A0R ALlY. • • AY-P,?T-!1K,' w (Original Defena vs. HALJD N.ASSOR. . . . . . . , . RESPONDENT(Original P1aintif'

JUDGMENT JONATHAN 9 Ag.J. This is a second appeal from the decision of the primar court awarding the respondent damages of shs.2000/- for malicious prosecution, It appears that the appellant instituted in the primary court criminal proceedings against the respondent on account of an alleged assault on the former by the latter. At the S. hearing the appellant gave evidence that he was assaulted, but his two witnesses whom he called in support of the charge de.nie seeing the iespondent assault him. The priinar.y court then considered that the charge was not proved and proceeded tc acouit the i4 espcndent. Following that decision the responcent iflttitadin the ame*coürf civil proceedings against the apeJant for malicious prosecution, demanding damages of shs.3000/= At the hearing of the civil case, it was proved and not disputed that the appellant had unsuccessfuly prosecuted the respondent for assault. On that evidence alone the court unaniously awarded damages of shs.2000/- with costs. Fom that I decision there was an appeal to the district court, on grcunds which included, among other things, lack of jurisdiction havinc: regard to the Nagistrates' Courts Act,and a misdirection as to the burden of proof. At the hearingap of the peal before the first appellate court,Nr, -anani learned counsel for the appellant argued at some length citing authorities in support of the appellant s

case. The appeal was, however, dismissed. Before me, Mr. hansni urged much the same grounds of 8PC8l. as wrrc tfure the district court. As regards jurisdiction, proceedings in primary courts are governed by the 1Lagistrates' Courts Act. Section 14(l)(a) of the Act confers civil jurisdiction to nrimry courts, or convenience, I would auote the above cited part of the secticn Section 14.(1) A primary court shall have and exercise jurisdiction- (a) in all proceedings of a civilnature- L\ 41 -2- 1 (i) vhere the law applicable is customary law dr Islamic law: Provided, that no primary court shall have j[urisdiction in any proceedings - affecting the title to or any interest in land recisterc-d under the land Rerjistratjnn Ordinancc or in which Islamic law is arnlicahle by virtue of the provisions of the 'arriagre, T)ivorce and Succession (Non-Christian Asiatics) Ordinance; or (ii) Pcr the recovery of civil debts, rent or interest ue to the Republic the Government or any unicipal, town or istrict council under any ucigmeiit, written law (unless juriscicticn therein is expressly conferred. on a court or courts other ' han a primary court), right of occupancy, lease 9 rub-lease or contract, if the value of the sub j:ct inatter of the suit does not exceed two thousand shillings, and any rroceed.ings by way of counter- èlaim and set off therein of the same nature and ot exceeding such

value Pespectino the prisions mder (ii), Nr, Dhanani arued that the primary court had no jurisdictinn as the sam claimed, was excess of hs.2000/-. These provisions are not free altogothczi from diffiduities of interpretation. It is, however, clear frt a claim intort, as the one under consideration, does not conic under any cf the items snecified in the provisions. ith respect, t1 - ie learned district magistrate's vioW is correct t:cc these provilsions are irrelevant to the proceedings under which the dampgcs were sought. Ihee remain to consider the rovisions under (i). Counsel for the appellant has submitted that the original proceedingd were founded upon a specialised branch of the law of tort in which primary courts have no jurisdiction.. However, it would arpcar from the prcvisions that, save a excepted theuc-- in, all civil wrongs including those in contractual and tort are justiceable by primary courts provided there are, in each case, rulesi of customary or Islamic law governing such wrce.gs The oucsticki was then posed both bcfce the district ccur bef ore me:ow isto it he determined. if such rules obtain? L observed. by the district ma g istratc,the ciuestion is one of ccnsidcrahJ- diffioulty. Rule 3(3) of the rules made under sI5 of the Lct hakes it cler that the customary law rules do nat / have to be - I -3- proved. Ho.rever, that is one thing it is completely

another if there are rules governtng a particular subject. One of tJe authoritiescited to the district court is a decision of this 0 ourt in Ezkiel slo Luka versus Kijans linda which is reported in the High Uourt Digest 404/68. The district court appears to have refusec to follow that decision. I have had the advantage of reading he full judgment. In that case, a village execu;iuc officer stoped. the plaintiff from selling pombe, thereby occassicnind, loss of profits. The plaintiff filed a suit for damages against the village executive officer. On a second appeal to this Court, Seaton, J. observed, among other thinss, and I rould inuote UKijana had to establish not only that he had suffered loss through Ezekiel's act,, but that it was the kind of loss for which customary law provided a remedy. It does not appear from the evidence on record that there is any rule of customary law recognising Usbi 1i 1 . for the kind of loss claimed to have been caused in this case, but that alone would not preciidc' the district magistrate or this Court from recognising such rule if it exists.. With this I irespectfully agree. These observations would nor-ly to the preseht case. Section 32(3) of the Act would entitle tbi Court in itsppellate jurisdiction to peruse the proceedings in the courts below for any statement that is believable as to the existenc of customary niles on the subject which

this Ccur might apply.j It is also open to this Court to apply any custco-.; law rules tht are discernible from any credible source as are considered bst suited to all the circumstances of the case. I have been had placed to glean from the proceedings in the cots below any indication that such rules were in existenco I am not satisfied that the award of damages is, in itself, sue: indication. INor am I aware of the existence of any rules of customary la relating to damages for malicious prosecuticn I seems to me, therefore, that, in trying the case the primary court assuinedl jurisdiction it might not have had. This alone would dispose of this appeal. I would, however, refer to one other ground I which I would consider eoually decisive, and whic]: in a sense, 1iends support to the view on the ground just considered. Mr. Dhnani also referred to the districti magistrate the case of Abdul Javer Meghji v. ,libhai Mitha which was decided by this Court and reported as H.C.D. 235/67. There it was held, intr alia, that in order to succeed in a claim for damages for mlicious prosecution, it is essential to estaijlisi: malice. The district magistrate disregarded this decision, holding that it was irrelevant to the facts of the case before 4 e -4- him then. \ith resct, it was not. I dc not find it necessary to go into the facts of that case for it is clear from the decision of this Court

in that case that malice must be estabflshed whatever the facts of the case may be. I think that is settled and certainly g00d law. All that WSS established in the priiri,ary ccurt was that the appellant had failed to secure the respondert's conviction for assault. There is otherwise nothing on Hecord to suggest that the appellant had maliciously instituted the criminal proceedings. Both the courts below seem to have been preoccupied solely with the appel]Bnt's failure to secure a conjiction and they do not seera to have adverted to the malice elemeht of the matter. In the result, the appeal succeeds with costs,and the orders or the courts below are set aside. As the general effect of the decision of this Court is to nullify the ori,cinal proceedings,the respondent will be at liberty to file fresh ' proceedings In an appropriate court. Itl is further ordered that the sure of shs.2100/- said to have been deposited into court be refunded to the appellant's advocates. Delivered in Court this /2 ___ day of 1971. (P.M. Jonathan.) Ag. Judge. Appearances: Dhanani. for •1 ppellant. Not present Respondent.