Leonida Sosthenes

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA (PC) CIVIL APPEAL NO. 29 OF 2023 (Arising from Consolidated Civil Appeals No. 53/2022 and 58/2022 Muleba District Court, Originating from Nshamba Primary Court in Civil Case No. 25/2022) LEONIDAS SOSTHENES............. ........... ,..... ...................... APPELLANT VERSUS GELARD BONIFACE..................... ............... .............. . RESPONDENT JUDGMENT 27th June and 12th July, 2024 BANZL J.: This appeal traces its root from Criminal Case No. 12 of 2022 before Nshamba Primary Court (the trial court) where the appellant instituted a criminal case against the respondent on a charge of assault causing actual bodily harm; contrary to section 241 of the Penal Code [Cap. 16 R.E. 2019]. After receiving the evidence of the appellant, the trial court dismissed the charge and acquitted the respondent after finding that, he has no case to answer. Following his acquittal, the respondent returned before the same court and instituted a civil case against the appellant claiming for Tshs.5,000,000/= as compensation for malicious prosecution. The trial court decided in his favour and ordered the appellant to pay him Tshs. 500,000/= Page 1 of 10 as compensation. Aggrieved with the findings of the trial court, the respondent lodged Civil Appeal No, 53 of 2022, while, the appellant lodged Civil Appeal No. 58 of 2022, Both appeals were instituted before the District Court of Muleba (the first appellate Court) which were consolidated and at the end, the appellants appeal was dismissed while the respondents appeal was allowed whereby the court enhanced the damages from Tshs.500,000/= to Tshs.5,000,000/=. In addition, the appellant was ordered to pay costs of the case. Dissatisfied with that decision, the appellant has knocked the doors of this court armed with six grounds of appeal. At the hearing, the appellant was represented by Mr. Derick Zephurine, learned counsel while Mr. Lameck John Erasto, learned counsel appeared for the respondent. Mr. Zephurine decided to start with the fourth ground which focuses on jurisdiction of the trial court. He submitted that; the issue of jurisdiction can be raised at any stage. According to him, the trial court had no jurisdiction to determine the civil suits of malicious prosecution because being common law suits, it is the district court which is vested with requisite jurisdiction to try them. Hence, whatever transpired before the trial court was a nullity. He cited the cases of Andrew Ongong'a Ndiege vs Philimon Aroko Agola [2022] TZHC 14061 TanzLII and Selemani Page 2 of 10 Ramadhani vs Ally Juma [1984] TLR 49 to support his assertion. Concerning the remaining grounds, he argued that, as the trial court had no jurisdiction, it cannot be said that the respondent proved his case to the required standards because everything was nullity from the beginning. He prayed for all proceedings and findings of the lower courts to be nullified and the appeal be allowed. He did not press for costs. In response, Mr. Lameck argued that, the nature of claim of tort of malicious prosecution against which the appellant wa$ sued, falls under customary law. Also, according to section 63 (1) of the Magistrates' Courts Act [Cap.ll R.E. 2019] (the MCA), and as it was stated in the case of Charles Lala vs Abdallah Mangi [1992] TLR 336, the primary court and district court have concurrent jurisdiction on matters of customary law of torts on malicious prosecution, defamation, destruction of crops by cattle and negligence. Therefore, as both parties are of the same tribe, the claim falls under customary law. Furthermore, he relied on the case of Maagwi Ki mi to vs Gibena Werema [1985] TLR 132 and argued that, the customary law and common law have the same status in our courts. It was further his submission that, there is no statute that precludes the respondent from filing the case to the primary court, in absence of such preclusion, the trial court had jurisdiction to determine that case. Concerning the remaining Page 3 of 10 grounds, he argued that, the same should be considered as they were abandoned because nothing was submitted to support them. In his rejoinder, Mr. Zephurine strongly insisted that, the matter at hand does not fall under customary law as it is purely the common law in nature because it arose after the respondent had won in the criminal case. He added that, according to section 18 of the MCA, malicious prosecution is not among the cases that can be determined by the primary court; therefore, the trial court had no jurisdiction to try malicious prosecution which is a common law tort. In that regard, he contended that, the cited case of Charles Lala vs Abdallah Mangi {supra} is distinguishable. Having considered the rival submissions of learned counsel for both sides and after perusing the records of the lower courts, I find it pertinent to begin with the fourth ground which questions the jurisdiction of the trial court to entertain the tort of malicious prosecution. It is settled principle that, in any adjudication, the initial question to be determined is whether or not the court is vested with requisite jurisdiction because the question of jurisdiction goes to the root of the authority of the court to adjudicate upon cases of different nature. See the case of Ramadhani Omary Mtiula vs Republic [2020] TZCA 1734 TanzLII. Page 4 of 10 Likewise, in the case of Patrick William Magubo vs Lilian Peter Kitali [2022] TZCA 441 TanzLII, it was 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." Notably, neither the appellant nor the respondent has raised the issue of jurisdiction either at the trial court or before the first appellate court. However, it is settled law that, the issue of jurisdiction of the court being fundamental issue, it can be raised at any time even at the appellate stage. See the case of Tanzania-China Friendship Textile Co. Ltd vs Our Lady of the Usambara Sisters [2006] TLR 70. As submitted by Mr. Erasto, it is undisputed that, according to section 63 (1) of the MCA, primary courts and districts courts have concurrent jurisdiction on certain proceedings of civil nature. The section provides as follows: "Subject to the provisions of any law for the time being in force, where jurisdiction in respect of the same proceedings is conferred on different courts, each court Page 5 of 10 shall have concurrent jurisdiction therein." (Emphasis added]. It is apparent from the extract above that, the concurrent jurisdiction stated above is not exclusive but subject to the provisions of other laws. Nonetheless, jurisdiction of primary Courts on proceedings of civil nature is- specifically provided under section 18 (1) (a) (i) to (iii) of the MCA. Paragraph (a) (i) provides that: "(1) A primary court shall have and exercise jurisdiction (a) in all proceedings of a civil nature- (i) where the law applicable is customary law or Islamic law: " Obviously, according to the extract above, the primary courts have jurisdiction in proceedings of civil nature where the applicable law is customary or Islamic. So far as the jurisdiction of primary court in tort of malicious prosecution is concerned, there are two school of thoughts established by this court through the cases of Selemani Ramadhani vs Ally Juma and (supra) and Charles Lala v. Abdallah Mangi (supra). On one hand, in Selemani Ramadhani vs Ally Juma, Hon. Lugakingira, J (as he then was) stated as follows: "In civil proceedings the jurisdiction of a primary court arises, inter alia, where the suit is founded in customary Page 6 of 10 law. The instant suit was in fact that of malicious prosecution which is a common law tort. Criminal prosecution, as a machinery for determining guilt or innocence, is a procedure without equivalent in customary practice, but is wholly derived from statute. The tort of malicious prosecution is thus an alien concept which does not find expression in customary jurisprudence. I am therefore of the view, which view is also to be found in Fanie! v Konyak [1971] HCD n.323, that the Primary Court was incompetent to try the suit. '■ On the other hand, in Charles Lala vs Abdallah Mangi, Hon. Mwalusanya, J (as he then was) was of the view that, primary courts have jurisdiction to entertain malicious prosecution, defamation, destruction of crops by cattle and negligence based on customary laws. However, he went further and put two conditions to be inquired before determining the suits of that nature by stating that: "Since the parties belonged to the same customary law community of the Wanyaturu the trial magistrate should have inquired into two matters: (a) Whether among the Wanyaturu there are rules of customary law regarding malicious prosecution which are established and accepted; Page 7 of 10 (b) Whether from the nature of the wrong of malicious prosecution, it was apparent to the parties that they would not be governed by customary law of the Wanyaturu;" From the holdings of two cases above, it goes without saying that, generally, primary courts have no jurisdiction to entertain torts on malicious prosecution under the common law principles. However, when it comes to customary law torts of malicious prosecution, primary courts can entertain suits of that nature provided that, it should first inquire that, there are rules regarding malicious prosecution which are established and accepted by certain community and whether the parties before it, are governed by customary laws of that community. According to the case of Charles Lala vs Abdallah Mangi, failure to make an inquiry on these two matters fatal. Reverting to the instant case, Mr. Erasto contended that, since both parties belong to the same tribe, the trial court had jurisdiction to entertain the suit before it. Having thoroughly perused the record, it is undisputed that, both parties belong to Haya tribe hailing from one locality at Kishanda in Muleba. However, with due respect, the fact that parties belong to the same tribe, is not a conclusive proof that, such tribe has established and accepted rules regarding tort of malicious prosecution which govern them. Apart from that, this court through the case of Levina Dominick vs Wilson Page 8 of 10 Simon [2023] TZHC 19955 TanzLII had already held that, in Haya tribe, there is no established and accepted rules regarding tort of malicious prosecution. In that case, it was stated that: "...I have thoroughly perused authoritative book concerning customary law of the Haya tribe titled Customary Law of the Haya Tribe Tanganyika Territory, authored by Hans Cory and M. M. Hartnoil and published by Percy Lund, Humphries & Co. Ltd (1945). The book compiled all customary laws ofHaya tribe from inheritance, bride price, marriage, divorce to law of property. Unfortunately, I have not come across with tort of malicious prosecution. Apart from that, so far as damages are concerned, at page 253 of the said book, it is clearly stated that, no compensation is payable in the cases of witchcraft, slander and insult. With that regard, although on different reasons, Ijoin hands the reasoning of the first appellate court that the trial court had no jurisdiction to entertain disputes pertaining to malicious prosecution between the appellant and the respondent who belonged to the same customary law community of the Haya tribe./z Basing on the position of the law, it is apparent that, the trial court, Nshamba Primary court has no jurisdiction to entertain the tort of malicious prosecution be it under common law or those torts under customary law which the primary court: has jurisdiction to try. In that regard, whatever Page 9 of 10 transpired from the trial court to the first appellate court is nullity. Thus, I find the fourth ground with merit and it suffices to dispose of this appeal. Consequently, I allow the appeal by quashing the proceedings, judgments and orders of the trial court and the first appellate court for being nullity. The respondent is at liberty to institute a fresh suit before the court of competent jurisdiction, that is, the District Court of Muleba. Considering the circumstances of the case which involve parties of the same clan, I make no order as to costs. It is so ordered. I. K. BANZI JUDGE 12/07/2024 Delivered this 12th day of July, 2024 in the presence of Mr. Raymond Laurent, learned counsel who is holding brief of Messrs. Derick Zephurine and Lameck John Erasto, learned advocate for the appellant and respondent respectively, Mr. Audax V. Kaizilege, Judge's Law Assistant and Ms. Grace Mutoka, RMA. I. K. BANZI JUDGE 12/07/2024 Page 10 of 10