19750910 TZHC Mwanza

ITT TIE HIG.H COURt.OF TANZIA m 'trr, .L I (PC). .CDJL IPEAL No. 58 OF 1975 - (Frothe'. decision of the 'district court of Biharamulo district in civil appeal No. 11 of. 1971 - Before C .?i.Shilogi.le, EBa., Pistrict Magistrate - Ny'irembe"original civil case No. 21 of 1971) SEBLSTLU'T ....................................................AP1-'ELLP.NT versus MAGOi RTJG.OMB.Z.. ...........•...'...-.. ...........................'.RESPONDENT JJI)cMETTT MAG-ANG, - • The resDondent filed a suit against the appellant in Ny - 't.ernbe Primary Court claiming Sh 600/- as dlmages. He claimed that the ff-iTl?ent t had wrong- fully and unlawfully detained his bus for, a period of 12 hours as a xesu1t of which he suffered loss amounting to the amount he claimed. The Prrnary Court held that the respondent had failed to establis,} his claim and . dis- missed the suit. Tne respondent appealed against that : decision to Biharamulo % dis1,'ict court and his appeal was allowed' with costs. He was wrded ..Sh 3/- of the çrginal ,aount he. claimed as ,damnges. It is agaiit that de- / the appeliant ' - ' ''• '- cision that. is apsealing., .• . Before 'going into the merits of.th±s app eal.this coixt haste decide on the -insue vhc'thei "the P.rimry C ou.rt Ia d jurIsdiction to . ertertain the suit. The first .pp'ellate court considered this issue and held that the primary eo'urthad jursiction to entertain-the suit..'' -.".' . '. .• Tre suit *s founded on a tOit alleged to hre been coaitted by the ap- pellant on tho respondent's DrcDerty as a result of which the respondent alleged to nave suffered loss The jurisdiction of primary courts as con- taaned in scctiun 14 of the Mogi.tretes Courts Act, C'ip. 537. Perusal of that sCctioñ shows that it is nowhere stated in any' of th sub-sections that , primary ourts hav e jursdiction to entertain cIvil suits bas6d n ttious acts . Pima Court'havc jurisdiction in civil suits only'in those mattèrs'pro- 'vid.ed fOr in that section and in no other. Had the leslature inteided to excli1de only scme matters it would have clearly done so." Since the claim in this cae was founded on tort I do not think that the P'ivaf Court had juris- 'diction to 'entertain this suit. But that issuesie' it would appar that the r'espcndnt's appeal to the firt appellate court should have been dis- missed on another grouid.' The primy court decision that the respondent failed to prove his cntention that the appellant detained his bus as a result of which he suffered loss is fully supported by the evidence in the record. The trial ccurt found it proved, and it was not disputed, that the ap- pellant 'was travelling 'in the respondent's bus when his cap was blown off his head by the wind and fell out of the bus. The defendant' s driver refused to stop the bus to allow the appellant to pick his cap and this caused some heated argument in the bus. When the bus reached a bus stop called Nyamirembe the appellant refused to alight from the bus unless he was paid Sh 36/- being the value of the cap • The appellant had tc- alight at Nyamirembe and the bus arrived at the place around 7 p.m. The appellant threatened tc stone/bus the .2/.. (.2) if it was driven'pff without heingpaid for his cap. The driver of th :ibu:' trfore do oiled to sleep at Nyaindrembe .aand did not. .cc'±inu with his trip to Xing ,,-:na ferry and icug'.nzi till t'e followihg. at 8 a.m. It wa s in evi cicnce to t theooeliant °id rct sleep in bus nor was he within the vicinity of that bus during the night. The rO.spondent claimed a loss of d' 50/- per hour for the 12 hours the bus remained at Nyaciirombe. The cairt found that had the bus proceeded to Muganza that night it would have ariive04 there at 9 p.m. the same night and sthyod, there. overnight In aeIi''esenel judgoent the iol court 6cinsiaerea -all the isses involved in the base. The COurt hld that though the defendant threatdned tostoné tIe bus if it left without being cOmpEnsated"foI'him lOst cap this did not àmbunt to dOtentionof the bus The curt rèasoned thht since the appellant never seized the switch xiOrdid 'the dx~ iver atot to drive off s'oa to see if the abella±it neant what' he said' there was insufficient evidehce to supert etntior h'f,.. the bus'. ' The court there- fore dismissed the suit on the gr , und that the respc'ndont failed to prove his case. The district court r'evorsed at d'cision n appeal on the ground:that the fact that it was proved that the appellant threatened to stone the bus amounted to detention of the said bus. •Viith respect, I do net agree with the reascning of the district court in this respect.. .There was clearly no ed,enco that the appellant manifested anything to show .hat,he would hove carried out the threat. In fact it is in evidence that he left the plane where the bus was seen after the incident and never went back till 750 ' . the follcvang corning. The defeidant's driver filcd to explain what r vorteL him from continuing with his safari after the appellant boar ±t. It w uld appear tht the driver for his own reason deeided to stop ove'rrug jit at that stati -i and as such the ap ellant cannot be,hejd reponsi'o1e for whatever loss suffered by the respondent as a re- suit of the d.riverts decision. It is for this reason that I stated that the pririory c urt decision was suunc1 and should have been upheld] by the first appellate court. Ivculd orhe raasons stated herein allow this ampeal with costs. The c1ecasan of the listrict c urt is therefoe set aside and that c' the primary court is restored. IVIwanza 10.9.75