Flowin Haule

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA CIVIL APPEAL NO. 14215 OF 2024 (Arising from the District Court of Songea at Songea in Civil Case No. 10 of 2023) FLOWIN HAULE ……….……………………….…….……..…………... 1ST APPELLANT ERICK HAULE ………….…………………………….…………………... 2ND APPELLANT VERSUS RAFAJA NGONYANI ………………..………………………….…………. RESPONDENT JUDGMENT Date of Last Order: 2nd September, 2024. Date of Judgment: 25th September, 2024. KAWISHE, J.: The appellants approached this court contesting the decision of the District Court of Songea (hereinafter to be referred as the trial court) in Civil Case No. 10 of 2023, in which the appellants unsuccessful sued the respondent for the tort of malicious prosecution. Briefly, the facts were as follows: Before the trial court, the appellants sued the respondent for malicious prosecution and they prayed for the payment of TZS. 100,0000,000.00 as general damages for the tarnished and lowered reputation as a result of the respondent’s act of Page 1 of 12 suing the appellants. They also claimed for the payment of TZS. 1,750,000.00 as specific damages for the fees spent in prosecuting criminal case at Mfaranyaki Primary Court and at Songea District Court as an appellate court. The respondent in her written statement of defence denied the claims and she raised a preliminary objection that, the trial court has no pecuniary jurisdiction to entertain the suit. The trial court found the preliminary objection meritorious and the suit was struck out for want of pecuniary jurisdiction. Dissatisfied with the decision of the trial court, they preferred this appeal challenging the decision. In their memorandum of appeal, they raised three grounds of complaint as follows: i. That the trial court erred in law to sustain the preliminary objection on the ground that it has no pecuniary jurisdiction to entertain the matter without considering the nature of dispute is the common law tort which is not triable by the Primary Court despite the amount claimed as general damages. ii. The trial court erred in law in striking out the suit by considering the pecuniary jurisdiction as the only factor which is used to establish the jurisdiction of the court which is contrary to the law. iii. That, the trial court erred in law in holding that costs (expenses) of defending criminal cases especially of malicious prosecution cannot be recovered through civil justice system (tortious liability). In this appeal, as it was before the trial court, Mr. Alex Dominicus Nyoni, learned advocate appeared for the appellants whereas the Page 2 of 12 respondent was represented by Mr. Dickson Pius Ndunguru, learned advocate. The appeal argued orally. Submitting on the first ground of appeal, the appellants’ advocate argued that, suits on common law torts are not determined by the primary court regardless of the amount complained. That, in this suit the cause of action was on the tort of malicious prosecution and defamation. Hence, the trial court was vested with jurisdiction and not the primary court even though the claimed specific damages of TZS. 1,750,000.00 was within the pecuniary jurisdiction of the primary court. He argued that section 18(1)(a)(i) of the Magistrates Courts Act (Cap. 11, R. E 2019), prescribes for pecuniary jurisdiction of primary courts in entertaining civil matters relating to customary and Islamic law and not in suits relating to common law torts of which primary court has no jurisdiction. To cement his submission, he cited the case of Togo Sempeho Mgonya vs. Lilian Munisi, Civil Appeal No. 13 of 2022 (High Court of Tanzania at Tanga). He argued further that what constitutes common law torts was well described in the case of Onesmo Mushobozi Oscar vs. Petro and 4 Others, Civil Appeal No. 63 of 2021, in which this court followed the stance stated by the Court of Appeal in the case of Jepther Soka Sanan vs. Standard Chartered Bank (T) Limited, Civil Appeal No. 16 of 2016 (unreported), in which the court stated that common law torts include Page 3 of 12 negligence, reckless, misstatements, injurious falsehood, false imprisonment or malicious prosecution. He added that, although the appellants claimed TZS. 1,750,000.00 as specific damages the trial court has jurisdiction to entertain the matter basing on the nature of the cause of action. He further referred this court to the book written by C. S. Binamunugu, “The Law of Torts in Tanzania” in which the case of Kulthum Ally Kara vs. Yasin Osman (1969) EA was referred by the author in stating the jurisdiction of the courts in disputes of common law torts. Arguing on the second ground of appeal, Mr. Nyoni submitted that, the trial court erred in striking out the suit since specific damages claimed in the plaint is not the only criterion in ascertaining the pecuniary jurisdiction of the court but the court has to consider the nature of the claim. He averred that, section 18 of the Magistrates Courts Act (supra) states clearly that primary court can entertain civil matters of customary or Islamic nature. To reinforce his argument, he referred the case of Onesmo M. Oscar vs. Petro and 4 Others (supra). On the third ground of appeal that the trial court erred in law by deciding that the expense for defending criminal cases specifically in malicious prosecution cannot be claimed through civil cases. He asserted that, once a person is maliciously prosecuted, he or she can sue through Page 4 of 12 civil justice system to claim for the expenses if he proves how he was injured and the expenses incurred in prosecuting the criminal case. He contended that the trial magistrate misdirected himself. Lastly, he prayed for this appeal to be allowed with costs. In response to the appellant’s counsel submission, Mr. Ndunguru argued that, before determining any matter a court has to ascertain whether it has jurisdiction to entertain the matter. That, it is a vital aspect and it is a creature of statute and not the wishes of the parties. He added that, the amount claimed as specific damage was the determining factor in ascertaining the pecuniary jurisdiction of the court. That if the appellant wishes the trial court to entertain his common law tort’s claim he may separate the specific damages and file them before the primary court. The rest may proceed before the district court. To buttress his stance, he referred to the decision made in Tanzania China Friendship Textile Co. Ltd vs. Our Lady of Usambara Sisters (2006) TLR 70. He avowed that, even if the cause of action accrued from common law tort, the appellants’ claim for specific damages faulted the jurisdiction of the court unless he could have abandoned the specific damages in order to pursue the reliefs available in common law tort. He argued that, the specific damages of TZS. 1,750,000.00 which were claimed by the appellants were under the pecuniary jurisdiction of the primary court as it Page 5 of 12 was stated in the case of Onesmo M. Oscar vs. Petro and 4 Others (supra) which was referred by the appellants’ counsel. On the second ground of appeal, he argued that, since the appellants pleaded for specific damages, the trial court considered it in determining the pecuniary jurisdiction and there was no way that it could have considered the cause of action alone in isolation of the pecuniary jurisdiction. On the third ground of appeal, Mr. Ndunguru faulted the submission made by the appellants’ counsel and argued that, it was their duty for the appellants to claim for bill of costs under order 2 of the Advocates Remunerations Order. He added that, the trial court correctly decided that the appellants could have lodged their complaints in a proper forum. Finaly, he prayed for this appeal to be dismissed. In his rejoinder submission, Mr. Nyoni argued that, it is true that, jurisdiction is a creature of the statute and section 18 of the Magistrates Courts Act (supra) prescribed the jurisdiction of primary courts. He contended that, the respondent’s counsel has agreed that, there are some matters in which the pecuniary jurisdiction cannot be a requirement of determining the jurisdiction of the court. That it depends on the nature of the claim that is why the suit in the present appeal was instituted before the district court. He submitted that, if the appellants could not put the Page 6 of 12 specific damages the court’s jurisdiction would have been determined as it was stated in the case of Tanzania China Friendship Textile Co. Ltd vs. Our Lady of Usambara Sisters (supra). He argued that, the trial court misdirected itself in deciding that it had no jurisdiction to hear and determine the matter filed before it taking into consideration on the nature of the claim which is a common law tort. On the second and third grounds, he argued that, since the claim founded on tortious liability, the claim of TZS. 1,750,000.00 was not a bill of costs as stated by the trial court. That, the law of tort requires a person to prove the injuries suffered, whether monetary, psychological torture or body injury. He prayed for this appeal to be allowed with costs. Having heard the contending submissions made by the learned counsel from both parties, this court is now duty bound to determine the appeal. From the grounds of appeal and the rival submissions made by both parties, this court finds only one issue which needs to be resolved in this appeal. The issue is whether the trial court had jurisdiction to entertain the suit filed before it. I am of the view that, upon answering the aforementioned issue, the three grounds of appeal will be addressed to satisfaction. In this appeal, there is no dispute that the suit filed by the appellants was on a claim accrued from malicious prosecution. This was not Page 7 of 12 contested by the learned counsel from both parties. This court also is in the same view and it fully abide to the decision of the Court of Appeal made in the case of Jepther Soka Sanan vs. Standard Chartered Bank (T) Limited (supra), in which the Court held that: “The common law torts related to negligence and reckless, misstatements, injurious falsehood, false imprisonment, or malicious prosecution.” While being guided by the finding of the Court in Jepther Soka Sanan (supra) on what constitutes common law torts, Mr. Nyoni the appellants’ learned counsel submitted that, suits on common law torts are not determined by the primary courts regardless of the amount complained. This argument was faulted by the respondent’s learned counsel Mr. Ndunguru who argued that the appellant, if so wishes may separate the specific damages from his claim and file the same to the primary court and pursue the common law tort claim before the district court. Otherwise the trial court was correct to strike out the matter. Both the parties agree that, the matter emanated from common law tort. Their disagreement is on the issue of jurisdiction. As already stated above, the trial court struck out the suit on the ground that the pecuniary jurisdiction was out of its powers. The reason being that the specific damages claimed by the appellants falls within the jurisdiction of primary court. This trial court’s stance was conceded by the respondent’s counsel but impugned by Page 8 of 12 the appellant’s advocate. It is the respondent’s counsel view that, since the specific damages claimed by the appellants squarely falls under the pecuniary jurisdiction of the primary court, the suit was to be filed in the lowest court which has competent jurisdiction to entertain it. Mr. Nyoni insisted that the specific damages should not be used as the only criterion to determine pecuniary jurisdiction of the court. This court is alive that, suits are filed before the lowest court with competent jurisdiction to try them. Definitely, jurisdiction of the court is at the center of the matter as it is a creature of the statute. Therefore, in determining the jurisdiction of the court, there are certain matters which must be considered. Borrowing leaf from the case of Onesmo Mushobozi Oscar vs. Petro and 4 Others (supra), where it was stated that: “It is vivid that a party intending to file a suit must ascertain three critical matters. One, the nature of the claim. That is from which branch of law his claim(s) emanate. Two, the magnitude of the claims in terms of specific and general reliefs. Three, the competent court in the judicial hierarchy which is the lowest to adjudicate such claim(s).” [Emphasis added]. From the excerpt above, the jurisdiction of the court is determined by three factors and in order to ascertain it, those factors must be considered collectively and not in isolation. The three factors accentuated in the case of Onesmo Mushobozi Oscar (supra) are relevant to the appeal at hand. Page 9 of 12 The first, the nature of the claim, both parties agree that it is common law tort. The second, the magnitude of the claims in terms of specific and general reliefs. This goes together with the third, the competent court in the judicial hierarchy which is the lowest to adjudicate such claim. The amount claimed determines the pecuniary jurisdiction hence, determines the court competent to adjudicate the matter. According to the respondent’s submission, if the specific damages were not claimed, the matter could have been in the proper forum in the district court. In his opinion, given the fact that the specific damages fall under the jurisdiction of the primary court, the claim should have been filed before the primary court. It is clear that, the matter at hand falls under the common law tort, of which the primary court has no jurisdiction to adjudicate. With reference to case law available, the Primary Courts have jurisdiction in all proceedings of a civil nature where the law applicable is customary law. Also, a customary tort is justiciable in Primary Courts. See the case of Jacob Mwangoka vs. Gurd Amon (1987) TLR 165. In this appeal although, the amount claimed falls under the pecuniary jurisdiction of the primary court, given the nature of the claim which is common law tort, the primary court has no jurisdiction to adjudicate it. It is the view of this court that under such circumstances, the trial court which is the lowest court with jurisdiction of determining claims in relation to common law Page 10 of 12 torts, has original jurisdiction to hear and determine the matter. In that, I am not inclined to the submission made by the respondent’s counsel that; the specific damages should have been pursued in the primary court. In my view, that will be flooding the court with suits splitted unnecessarily. I am stating so because, the parties are the same, the claim is one of the components of the suit which was filed before the trial court. Thus, splitting the claims and file them in two different courts, would be adding up the number of cases. It is my considered view that, since the nature of the claim stems from common law torts, malicious prosecution, though the specific damages is within the pecuniary jurisdiction of the primary court, but the primary court does not have jurisdiction to entertain common law torts, then the trial court should have entertained the same by looking at nature of the claim, its origin while banking on substantive justice. With this reasoning, it is my humble view, that the trial court’s finding that it has no jurisdiction to determine this suit was not correct. Thus, the issue is answered in the affirmative. In the event, this appeal is allowed. The file is remitted to the trial court to be heard on merits before another magistrate. Given the gist of this appeal, I am of the view that, the parties should not bear costs of the same. Therefore, I give no order as to costs. It is so ordered. Page 11 of 12 DATED and DELIVERED at SONGEA this 25th day of September, 2024. E. L. KAWISHE JUDGE Court: Judgment delivered in the presence of Mr. Alex Nyoni, learned counsel for the appellants, and in the presence of Mr. Haji Shaban, learned counsel for the respondent and in the presence of the appellants. Right of appeal explained. E. L. KAWISHE JUDGE 25/09/2024 Page 12 of 12