Fabiano Sisti v Weliweli Barihe

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI CIVIL APPEAL NO 28025 OF 2024 (Arising from the judgment of the District Court of Mbulu in Civil Appeal No. 19877 of 2024, Originating from Civil Case No. 01 of 2024 in the Dongobesh Primary Court) FABIANO SISTI………………………...…………..…………APPELLANT

VERSUS WELIWELI BARIHE……………….……………….………RESPONDENT

JUDGMENT 28th February 2025 & 7th March 2025 MWIHAMBI, J.: Before the Primary Court of Dongobesh, Weliweli Barihe and Agustino Sisti instituted a civil case against Fabiano Sisti claiming from him an amount of Tshs 5,500,000/= as compensation for being wrongful sued. It is on records of the Dongobesh Primary Court that the said claims originated from a criminal case in which Fabiano Sisti sued Weliweli Barihe and Agustino Sisti for the offence of malicious damage to property. It happened that the charge sheet was not proper before the Primary Court hence, Fabiano Sisti was convinced to withdraw the charge against Weliweli Barihe and Agustino Sisti. The withdrawal of the criminal charge before the Dongobesh Primary Court prompted Weliweli Barihe and Agustino Sisti to institute a 1 civil case before the same Dongobesh Primary Court. It was their claims before the court that the withdrawal of the case by Fabiano Sisti meant that he wrongfully sued them hence, they deserve to be compensated. After hearing of the civil case, the Dongobesh Primary Court ruled out that the claims against Fabiano Sisti were not proved on the balance of probabilities. The trial magistrate further ruled that as the claims originate from a tortious liability; the Primary Court had no jurisdiction to try the case thus the advice to Weliweli Barihe and Agustino Sisti to institute their claims before the

District Court. Weliweli Barihe and Agustino Sisti were aggrieved with the decision and the advice of the trial court magistrate and opted to file an appeal before the District Court of Mbulu. They appealed on four grounds of appeal. It was the observation of the District Court that the matter before the Primary Court was not a malicious prosecution case rather a normal civil case. The District Court therefore concluded that the trial magistrate misdirected himself and that the primary court had jurisdiction to try the case as it was a customary tort. Further, the District Court ruled in favor of Weliweli Barihe and Agustino Sisti and ordered Fabiano Sisti to pay TZS. 4,000,000/= as compensation to Weliweli Barihe and Agustino Sisti. It is 2 this decision that aggrieved Fabiano Sisti and has appealed before this Court. Fabiano Sisti has appealed on one ground of appeal. The parties prayed before this Court to hear their appeal through written submissions and they complied to the scheduling orders thereof. It was during the composition of the judgment that I observed something disturbing concerning the submission in chief by the appellant. The submission in chief which has been filed by the appellant in this Court’s file has been directed to the District Court of Mbulu and has arguments on four grounds of appeal which were raised by Weliweli Barihe and Agustino Sisti before the

District Court of Mbulu. Upon further perusal in the District Court’s file, I have observed that the now submission in chief which has been filed in this Court is the same submission in chief that was filed by the respondent before the District Court of Mbulu. I also realized that there is a question of jurisdiction determined by the Primary Court and was overruled by the District Court. It was when I was in this bafflement, I decided to call upon the parties to address me: first, on the issue of Whether the appellant’s submission is proper before this Court. Second, as the first appellate court overruled on the issue of jurisdiction which was decided by the trial court, 3 this Court has raised an issue on whether the Dongobesh Primary Court had jurisdiction to try the case. Upon being asked by the Court on the first issue, the appellant replied that his submission is proper before the Court and that it is the same submission that he served to the respondent and is present in this Court’s file. On his part, the respondent told the Court that he received the submission in chief of the appellant but he replied it on one ground that was on the petition of appeal. Before me is a contradictory submission in chief of the appellant as he has failed to argue on the ground of appeal he raised in his petition of appeal. The failure of the appellant to argue the ground of appeal presented

in his petition of appeal means that there is no any submission in chief presented by the appellant before this Court as per the scheduling orders. The Court of Appeal in the case of Godfrey Kimbe v Peter Ngonyani (Civil Appeal No. 41 of 2014) TZCA 1 has this to say: “… We are taking this course because failure to lodge written submissions after being so ordered by the Court, is tantamount to failure to prosecute or defend one’s case- see: National Insurance Corporation (T) Ltd & another v Shengena Limited, Civil Application No. 20 of 2007 and Patson Matonya v The Registrar Industrial Court of Tanzania & another, Civil Application No. 90 of 2011 (both 4 unreported). In both cases, among many others, the Court held that failure by a party to lodge written submissions after the Court has ordered a hearing by written submissions tantamount to being absent without notice on the date of hearing.” Being guided by the cited case, I need not detain much on this, at the outset, I wish to state that the appellant filed nothing before this Court to defend his appeal. Coming to the second issue, whether the primary court of Dongobesh had jurisdiction to try the case before it arising from a tort of malicious prosecution. The appellant argued that the Primary Court had jurisdiction while respondent told the Court that he is not aware. I wish first to refer to the arguments of both Dongobesh

Primary Court and Mbulu District Court. The Primary Court Magistrate at page 5 of his judgment stated: “Lakini pia, mahakama hii imepitia sheria mbalimbali imegundua kuwa haina mamlaka ya kusikiliza shauri hili. Kwa muktadha huo, mahakama hii inaliondoa shauri hili hapa mahakamani, ili wadai kama watakuwa na nia ya kuendelea nalo, basi wakafungue tena katika mahakama ya wilaya, ambayo ina mamlaka ya kusikiliza shauri hili.” 5 However, the District Court of Mbulu on appeal observed that the Primary Court magistrate misdirected himself on the question of jurisdiction. The District Court of Mbulu at page 3 of his judgment stated: “Having so observed, the question as to whether the trial court had jurisdiction to entertain tort case, dies a natural death. There was no tort case before the trial court. However, assuming that that particular matter before the trial court was tort liability, still the trial court could have correctly exercised jurisdiction, provided that the law applicable was customary or Islamic law.” From the above observations, I find it pertinent to deal with the issue of jurisdiction that was relied upon by the District Court to form its decision. It is a settled principle that the initial question to be determined by any court before determining the matter before it on merit is the question of jurisdiction as it goes to the root of the authority of the court.

The Court of Appeal in the case of Patrick William Magubo v Lilian Peter Kitali (Civil Appeal No. 41 of 2019) [2022] TZCA 441 at page 9 and 10 stated that: “Jurisdiction of courts is conferred and prescribed by law, it is therefore a primary duty of every court, before venturing into a determination of any matter before it, to first satisfy itself that it is vested with the requisite jurisdiction to do so.” 6 The District Court relied on the case of Togo Sempeho Mgonja v Lilian Munisi (Civil Appeal no. 13 of 2022) TZHC 14295 and satisfied itself that what was before the trial court was a customary tort which the trial court had jurisdiction upon. I had an opportunity of reading the case of Togo Sempeho Mgonja (Supra) which held that the primary court does not have jurisdiction to entertain cases based on common law torts but it has jurisdiction on cases of civil nature relating to customary torts. After holding that the tort before the trial court was a customary tort, the District Court magistrate did not go further to explain how he reached into that conclusion rather he stated: “I have supplied emphasis to underscore the point that, it is only common law torts that the trial court lacks jurisdiction, but not customary law torts. The question could remain to be whether what was before the trial court a customary tort. That question is a discussion of another day, but at least

the law confers jurisdiction to the trial court on tort matters.” With due respect, the District Court magistrate had the duty as the first appellate magistrate to subject the evidence of the trial court into scrutiny including the issue of jurisdiction. The District Court magistrate did not take trouble to determine whether the malicious prosecution before the Primary Court was a customary tort or a common law tort for it to have 7 jurisdiction. It is a settled principle that the court cannot assume jurisdiction as I have already referred to in the case of Patrick William Magubo (supra). This Court (Hon. Mwalusanya, Judge as he then was) in the case of Charles Lala v Abdallah Mangi [1992] TLR 336 distinguished between a customary law tort and a common law tort. The Court also stated that for the primary court to have jurisdiction to entertain the suit under customary law of torts of malicious prosecution, it has to conduct an inquiry on two matters; whether there are rules of customary law regarding malicious prosecution which are established and accepted by a respective tribe and whether from the nature of the wrong of malicious prosecution, it was not apparent to the parties that they would not be governed by customary law of the respective tribe. The Court held further that the failure to conduct such inquiry is fatal. Coming back to the case before the trial court, I hold

that the malicious prosecution before it was a common law tort and not a customary tort hence, the primary court had no jurisdiction to entertain the matter as it rightfully held so. I will give the reasons hereunder. This Court in the case of Charles Lala (supra) distinguished between common law tort and customary law tort that: 8 “There is a vast difference between the ingredients of the tort of malicious prosecution under English common law the ingredients are: (a) That the criminal proceedings have been terminated in the plaintiffs favour; (b) That the defendant acted without reasonable and probable cause; (c) That the defendant acted maliciously ie. with improper motive; (d) That the plaintiff has suffered some damages. These ingredients were expounded by the House of Lords in the case of Herniman v Smith [1938] A.C.

305. In contrast, in almost all our customary laws, ingredient (c) and (d) above are not essential ingredients. Under most customary laws it is enough if the criminal proceedings terminated in the plaintiff's favour and the defendant noted without reasonable and probable cause. The difference comes about because under customary law, the foremost consideration in tortious liability is to reconcile the litigants so as to maintain the equilibrium between the two parties and their clans.” I hold that malicious prosecution before the trial court is a common law tort because it fits into the ingredients of malicious prosecution under English common law as has been expounded in the above cited case. What the respondent and his fellow alleged before the trial court was that the criminal case that the appellant instituted against them was withdrawn hence the appellant acted without proper and reasonable cause, the 9 appellant acted maliciously, that is, with improper motive and they have suffered damages. The District Court assumed that the malicious prosecution before the trial court was a customary tort while I have not found in its record an analysis of which customary law does the malicious prosecution fall into for the District Court to reverse the decision of the trial court and to award damages to an amount of TZS. 4,000,000/= to the respondent. I find the same to be

unfounded. From what I have stated, I hold that the District Court of Mbulu misled itself on determining that Dongobesh Primary Court had jurisdiction. I allow the appeal to the extent explained above. I set aside the decision of the District Court of Mbulu and its resultant orders. The decision of the Dongobesh Primary Court is upheld. I will not make orders as to costs since the issue which has led to the decision was raised by this Court suo mottu. It is so ordered. DATED at BABATI this 7th day of March, 2025. N. J. MWIHAMBI 10

JUDGE COURT: Judgment delivered today in presence of the appellant and the respondent. B/C: Ms. Fatina Haymale (RMA) is present. Right of appeal explained. N. J. MWIHAMBI

JUDGE 11