SELEMANI RAMADHANI v ALLY JUMA 1984 TLR 49 (HC)

SELEMANI RAMADHANI v ALLY JUMA 1984 TLR 49 (HC)

Court High Court of Tanzania - Singida

Judge Lugakingira J

November 23, 1985

CIVIL APPEAL 27 of 1984

Flynote

H Civil Practice and Procedure - Jurisdiction of Primary Courts - Whether a

Primary Court has jurisdiction to try a common law tort of malicious prosecution.

-Headnote

The appellant was the complainant in a criminal case in which the respondent was

charged with I shop breaking and stealing before Mtinko Primary Court in Singida

district. The respondent was

1984 TLR p50

LUGAKINGIRA J

acquitted and thereafter he sued the appellant for defamation. The Primary Court

allowed the action A awarding the respondent 3,600/= in general and special

damages. The appellant's appeal in the District Court failed. This is a second appeal.

Held: (i) In civil proceedings the jurisdiction of a primary court arises, inter alia,

where the suit is B founded in customary law;

(ii) the instant suit was in fact that of malicious prosecution, a common law

tort, which is an alien concept without expression in customary jurisprudence,

therefore the Primary Court was incompetent to try it. C

Case Information

Order accordingly.

Cases referred to: D

1. Daniel v Konyak [1971] H.C.D. n. 323

[zJDz]Judgment

Lugakingira, J.: In Criminal Case No. 33/83 of the Primary Court at Mtinko in Singida

district, the respondent Ally Juma was prosecuted for shop breaking and stealing. The

appellant Selemani E Ramadhani was the complainant in that case. The respondent

was acquitted. Thereafter he sued the appellant in the same court for defamation

claiming 20,000/= in general damages and 1,600/= in special damages, the latter being

his alleged costs in the court of the criminal proceeding. The action was allowed and

the respondent was awarded, 3,600/= in general and special damages. This is the F

second appeal following the appellant's unsuccessful appeal to the District Court.

Unfortunately, I cannot go into the merits of the appeal seeing, as I do, that the

Primary Court had not jurisdiction in the matter. In civil proceedings the jurisdiction

of a primary court arises, inter alia, G where the suit is founded in customary 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 H customary jurisprudence. I am therefore of the view, which view is

also to be found in Faniel v Konyak [1971] HCD n.323, that the Primary Court was

incompetent to try the suit. This incompetence did not only arise from the point of

view of jurisdiction, but was also manifested in the I very handling of the suit. The

court never considered whether

1984 TLR p51

A there was reasonable and probable cause for the prosecution and never heard

evidence in support of the special damages. In short the suit was virtually untried.

The proceeding is accordingly quashed. The respondent is at liberty to institute the

suit in the B Resident Magistrate's court. I make no order as to costs.

Order accordingly.

1984 TLR p51

C