Judgment LUCAS BALUHI v WILSON ZEFANIA

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

AT MWANZA CIVIL APPEAL NO. 15582 OF 2024 (Arising from Civil Appeal No. 02 pf 2024 of Magu District Court originating from Kabila Primary Court in Civil Case No. 27 of 2023) LUCAS BALUHI……………………………………..……..…….………..APPELLANT

VERSUS WILSON ZEPHANIA…………………………..………….……...……RESPONDENT

JUDGMENT 22nd August & 27th September, 2024 ITEMBA, J. This appeal has its roots from Kabila Primary Court where vide Criminal Case No. 31 of 2023. The respondent herein was convicted and sentenced to serve three months’ conditional discharge for an offence of assaults causing bodily harm contrary to section 241 of the Penal Code Cap 16 R.E 2022. The respondent was aggrieved and lodged his appeal to District Court of Magu District (Criminal Appeal No. 8 of 2023). The District Court quashed his conviction and set aside the sentence of the Primary Court. Being victorious, the respondent filed Civil Case No. 27 of 2023 before Magu Primary Court (the trial court) for compensation of TZS. 3,500,000/. The trial court awarded him TZS. 500,000/=. The appellant was aggrieved and unsuccessfully appealed to the District Court of Magu (the first appellate 1 court). Hence this appeal. The appellant presented five grounds of appeal that, 1. The first appellate court erred in law and fact foe upholding the trial court’s decision while the trial court had no jurisdiction over the clams arose from tortuous liability (malicious prosecution); 2. The appellate court erred in law for upholding the decision of the trial court while the element of tort of malicious prosecution were not proved on the required standard; 3. The first appellate court error in law for upholding the trial court decision while the proceedings and judgement of the trial court are tainted with illegalities and procedural irregularities.

4. The first appellate court erred in law and fact for upholding the decision of the trial court while the court by awarding costs of the case while the matter was not consigned with the taxation cause.

5. The first appellate court erred in law and fact for upholding the trial court decision while there is no justification for the awarded amount. The respondent denied to receive the summons, I therefore ordered the appeal to proceed ex parte. The appellant was unrepresented, he was also unable to speak Kiswahili language therefore Ms. Lilian Wiliam Isangi interpreted his submissions from Kisukuma to Kiswahili language, to assist both the appellant and the court to communicate. 2 The appellant submitted that, the respondent filed a civil case in Primary Court claiming for TZS 3,500,000/= for unlawful prosecution. That, the trial court ordered the appellant to pay the respondent TZS 500,000/=. The District Court upheld the decision of the trial court. That, he filed this appeal because he was the one who was hurt and the respondent was sentenced to conditional discharge. Having heard the appellant’s submissions, I will now determine the grounds of appeal. In the first ground of appeal, the appellant faults the first appellate court’s decision for the reason that it failed to consider that the Primary Court had no jurisdiction. I have gone through the grounds of appeal raised at the first appellate court, no ground was raised with regards to the jurisdiction of the first appellate court. However, the law is settled that a point of preliminary objection with regards to

jurisdiction can be raised at any stage even on appeal. The respondent before the trial court was claiming for Tshs. 3,500,000/= being Tshs. 50,000/= for transport, Tsh. 10,000 for food, Tshs. 40,000/= being motorcycle fare and Tshs 3,400,000/- being compensation for malicious prosecutions. I have carefully read the judgement of the District Court on Criminal Appeal No. 8 of 2023. To start with, the court quashed 3 the decision of the Primary Court but ordered no costs. Therefore, the respondent, in absence of an order awarding costs, was not entitled to claim for transport and food amounting to Tshs 100,000/=. With regards to Tshs. 3,400,000/=, they are of nature of tortious of malicious prosecution which is not under jurisdiction of the trial court. In the case of Leonidas Sosthenes v Gelard Boniface, (PC) Civil Appeal No. 29 of 2023 (unreported) this court said at page 8; “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.” The present appeal emanates from claims of malicious prosecution which is a common law principle and has nothing to deal with customary or Islamic laws therefore the primary court has no jurisdiction. 4 That being said and done, the first ground of appeal has merit and suffices to dispose of the appeal. The trial court had no jurisdiction to entertain the matter. Likewise, the first appellate court had no jurisdiction as the appeal before it emanated from a nullity. Under the circumstances, I have no justification to decide on other grounds of appeal. I proceed to quash the proceedings and judgement of the District Court of Magu in Civil Appeal No. 02 of 2024 and that of trial court in Civil Case No. 27 of 2023 and set aside the orders thereof. Considering the circumstances of the appeal, I make no order as to costs. It is so ordered. Right of Appeal fully explained to the parties. DATED at MWANZA this 27th September, 2024 L.K.J. ITEMBA

JUDGE 27/9/2024 Judgment delivered in the presence of the appellant and Ms. G. Mnjari, RMA. 5