Nyabagaya Mtani v Nyakanyi Kabera 1983 TLR 332 (HC)

NYABAGAYA MTANI v NYAKANYI KABERA 1983 TLR 332 (HC)

Court High Court of Tanzania - Mwanza

Judge Munyera J

September 27, 1984

CIVIL APPEAL 158 OF 1982

Flynote

Tort - Slander - Allegation of witchcraft - Jurisdiction of Primary Court.

Tort - Slander - Publication - No publication where defamatory words uttered before respondent only.

-Headnote

The appellant had called the respondent a witch and the latter being aggrieved convened C and complained before a meeting of elders. In order to clear herself she went to a witch finder who certified that she was clean. Thereafter she sued the appellant for two cows as damages and expenses she incurred in travelling to the witch finder. The trial court awarded damages and expenses as prayed. The appellant appealed to the District Court which set aside the damages but affirmed the expenses. She appealed further to the High Court.

Held: 

(i) The Primary Court had jurisdiction to try the case since an imputation of witchcraft is a known customary law tort of defamation;

(ii) since the defamatory words were uttered before only the respondent there was no publication; the repetition of the words to the elders was done by the respondent which did not amount to publication by the appellant.

Case Information

Appeal allowed.

No case referred to.

[zJDz]Judgment

Munyera, J: The respondent was the plaintiff before Mugango Primary Court. She sued the appellant for damages for slander. She stated that on 23/11/81 at about 9 a.m. the appellant passed by her (respondent's) house. It appears she (appellant) was drunk. She addressed respondent as a witch, that she (respondent) had caused the death of their child. At that time nobody else was present except these two women. The respondent felt bitter about the appellant's remarks. At 11 a.m. same day she convened a meeting of elders and complained to them. In order to clear herself she offered to go to Ukara Island to contact a witch finder. She raised Shs. 3,080/= to enable her go. I There she said the witch finder certified her clean. She returned and filed this suit claiming damages 2 cows and reimbursement of her Shs. 3,080/= she spent in going to Ukara. She won the suit. The trial court ordered the appellant to pay the two cows and Shs. 3,080/= plus costs. She appealed to the District Court and won part of the appeal. The District Court set aside the award in relation to the two cows but confirmed that in relation to Shs. 3,080/=. She appealed further to this court.

There are two main arguments in this appeal. First (para 4) that the Primary Court had no jurisdiction over witchcraft cases. Secondly (para 3) that the appellant did not force the respondent to go to Ukara Island nor did she accompany her. Therefore she was not liable to the costs the respondent alleged she incurred. I start with the question of jurisdiction. It should be remembered that the suit concerned defamation (slander). I do not agree that Primary Court had no jurisdiction.

Witchcraft is something known to local people from time immemorial. If somebody imputed witchcraft to another whom people knew was not a witch the imputer would be told to compensate the latter. This is a customary law tort of defamation. The Primary Court had jurisdiction. The appellant's argument in that respect fails. I now go to the merits of the case. Going by the respondent's own evidence the remarks by the appellant that she was a witch were uttered when they were only two and nobody else heard them. She on her own initiative called a meeting and repeated what the appellant had told her. This did not amount to publication by the appellant. On this ground the appeal succeeds, I allow it, set aside the award of Shs. 3,080/= and dismiss the respondent's suit in its entirety. The appellant did not appear so no costs.

Appeal allowed.

1983 TLR p333

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