Bicoli v. Matemba (PC) Civ. App. 71-A-71; 25/10/71; Kwikima Ag. J.

Bicoli v. Matemba (PC) Civ. App. 71-A-71; 25/10/71; Kwikima Ag. J.

The respondent successfully sued the appellant for Shs. 130/= being the value of crops destroyed by the latter’s goats when they trespassed on the respondent’s shamba. The appellant’s appeal to the district court was dismissed. His main ground of appeal in the High Court was that the court of first instance, the Babati Primary Court of Hanang District, had no jurisdiction to hear the matter because it involved a tortuous claim for trespass by domestic animals. He also raised the issue that the parties were of different tribes and neither the primary no district court specified the customary law under which the suit was maintainable.             

            Held: (1) “This is by no means the first time when this court has been called upon to decide on the question whether the Primary Court being a court of original jurisdiction in Customary [sic] and Laws is vested with the power to hear and determine suits for damages arising out of trespass by animals. It was held in Ruzebe Sweya v. Jacobo Kitale [1968] H. C. D. 407 that cattle trespass is a “type of tortuous liability” and that such tort falls within the purview of customary Law. The learned judge who decided so relied on the case of Alli Kindoli v. Tuzihiriwa Pendasamani No. 220 Vol. IX Digest of appeals form Local Courts (1962) page 7. He also cited another unreported case by Mustafa J. (as he then was). On the other hand Platt J. held in Aloice Matanda v. Samanya Ngapanyi [1968] H. C. D. 456 that cattle trespass was a tort under the general law of Tanzania and that the Primary Court has no jurisdiction to hear suits brought under that head. He relied upon Section 9(3) and (4) of the Judicature and Application of Laws Ordinance to reach this conclusion. Unfortunately the report in the High Court Digest is so brief that one cannot follow the former judge’s reasoning with any studiousness in order to reach a stand on this very uncertain question.” (2) “The famous Customary Law Declaration embodies the law of the Family and Succession only. Any claim brought under customary law must therefore be proved if it does not fall within the category of Family law or Succession. In the current case the parties who are respectively Gorowa and Chagga have not shown any custom which is equally applicable to them on the question of cattle trespass. As such the Chagga respondent/original plaintiff has not obtained judgment under any proven custom equally applicable to his Gorowa adversary.” (3) “The respondent cannot be said to have sued in the right court or even to have proved the custom under which he sued and obtained judgment.” (4) Appeal allowed.