20070724 TZHC Tabora2

.... \ IN THE HIGH COURT OF TANZANIA AT TABORA. PC. CIVIL APPEAL NO. 17 OF 2003 (Original Civil Case No. 49/2001 Lunguya Primary Court Civil Appeal No. 3/2002 Kahama District Court) R~CHARD s/o MASUKA ..........,. ...................... APPELLANT Versus KABILIGA s/o BALELE .................................. RESPONDENT JUDGMENT 19th June, 07 & 24th July, 07 MUJULIZI,J. This was an appeal from the judgment of the District Court of Kahama, in appeal from the Lunguya primary Court in Civil Case No. 49/2001. In the Primary Court, the Appellant had filed a suit claiming compensation by way of damages suffered as a result of alleged malicious prosecution of the Appellant by the Respondent. J The hearing · proceeded ex-parte against the Respondent, allegedly after he had refused to accept summons of the Primary Court. At the end of the hearing, the Primary Court entered judgment for the Appellant in the sum of Tshs. 180,000/=, 1 ... i .- .. . ,, ! •. ·' Subsequently the decree was executed by attachment of the 1.·'; ' Respondent's five heads of cattle. i:/ On appeal to the District court, by the Respondent, the ., 5'.· 1· ~ judgment and decree of the lower court were quashed on grounds interalia, that in terms of section 18(1)(i) of the Magistrates' Courts ' Act, (Cap,11, R.E. 2002) Primary Courts have no jurisdiction to try ; cases of a Civil nature which do not fall under customary or Islamic. •· • ■, Dissatisfied, the Respondent in the District Court filed this • Appeal. However, in all the four grounds raised, the Appellant did l·'I not challenge the determination of the District Court that the Primary_ Court did not have jurisdiction on the matter. Instead he challenged l- the finding of the District Court on facts. - I. When the issue was brought to his attention by the Court during the haring of this appeal, the Appellant answered that in case the Court confirms that the Primary Court had no jurisdiction to determine the suit, and then he prayed that this court grant him •••• < extension of time within which to file a fresh suit in the District. i· 1 • After hearing the parties in appeal, I gave an order upholding l ·.· the decision of the District Court and consequently dismissed the I· . appeal with costs, reserving the reasons, to be given in this :::I' • judgment. a; - ~. • \ J I i .· 2 \ . " / I / These are the reasons; The appellant did no challenge the decision of the District Court on a point of law . • •I 1 As it is, when a matter can be determined either on an issue of law or fact, then the determination will be made on an issue of law first.. Issues of jurisdiction must be determined at the earliest time - ' possible. Although the District Court spent time on evaluating the evidence in the proceedings before the trial Court, all this amounted to nothing. For, had the learned District Magistrate addressed his mind to the issue of jurisdiction first, then it would have occurred to him that there would have been nothing left on the record of the Primary Court after quashing the proceedings for want of jurisdiction. Indeed the District Magistra~e's Court was correct in its holding that Primary Courts have no jurisdiction in civil claims for damages in the nature of torts, such as malicious prosecution. The Jurisdiction of - I ( the Primary Courts is limited to matters expressly set out under section 18 of the Magistrates' Courts Act, (Cap.11 R.E. 2002). Upon upholding the decision:'.of the District Court quashing the proceedings of the Primary Court, this Court has nothing left before it on which to base a finding upon the oral application for extension of ( !' time. ,1 3 i· ai ' If ■,' • . ( • •' :: In any event, the Court has no powers under the Laws of Limitation Act, (Cap; 89; R.E. 2002) to extend the period of limitation for the institution of any suit, whose limitation has expired. However, the application to this or the district court for extension of the time to file suit, was and is not necessary in the circumstances of this case. "" ( ' ■, Section 21(1) of the Limitation Act, Cap. 89 R.E. 2002 provides; "21-(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence, another civil proceeding, whether in a ~ourt of first instance or in a· court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in •' ■, a court which, from defect ofjurisdiction or other cause • of a like nature, is competent to entertain it." In this case therefore, subject to whether the original suit when filed in the Primary. Court was within the prescribed time, time will run against refiling of the suit in a Court of competent jurisdiction as of the date of this judgment. 4 -■ ( ■ I " I -k i ' .r ~.,, ~. J '/· st ,, l ;·/ Should the Appellant still feel constrained to pursue his claim, f. , he is at liberty to do so. In terms of item 6 to Part I to the schedule II . to the Law of Limitation Act. (cap.89 R.E. 2002) the period of limitation for a suit founded on tort is three years. 1 J ~ i '{ Otherwise both the Appeal and the oral application for extension ·of time stand dismissed with costs to the Respondent. , II:( C Costs to be taxed by the District Court. ~- ·i Iii ~ ~ JUDGE I ■ 24/7/2007 ORDER CJ,ut-l:- DR. Certify judgment to the District.-,/or execution and taxation of costs. j A.K. MUJULIZI ,, ~• ·' JUDGE Ill 24/7/2007 Ill{ i ~- ~ •' d l 5 Ill ( • •\ ,.,,1