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2023 TZHC 16726 PDF

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MWANZA DISTRICT REGISTRY

AT MWANZA

HC. CIVIL APPEAL No. 55 OF 2021

(Arising from Kwimba District Court at Ngudu in Civil case No. 1 of2021)

YUSUPH STANLY SALAM BA

(Suing as Next Friend of Leticia Yusuph Stanly, Minor........... APPELLANT

Versus
SIMBA ZALABANA............................................................... 1st RESPONDENT

KITULA ZALABANA............................................................ 2nd RESPONDENT

JUDGMENT
27/1/2023 & 14/2/2023

ROBERT, J:-
The appellant herein filed an action at the District Court of Kwimba

claiming against the two respondents herein jointly and severally

Tanzanian Shillings Ten Million (TZS 10,000,000/=) being compensation

for costs of treatment of the injuries sustained by the victim caused by

the 1st respondent while riding a motor cycle belonging to the 2nd

respondent negligently and without driving licence. The respondents

raised a preliminary objection on a point of law to the effect that, the

claim of TZS 10,000,000/= at the District Court necessitated lack of

pecuniary jurisdiction for determination of the matter. The trial

Magistrate made a finding that the suit arises from compensation which

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is a impliedly a contract in the circumstance, thus, he sustained the

objection raised and dismissed the suit for lack of jurisdiction to

determine the matter. Aggrieved, the appellant filed this appeal armed

with three grounds of appeal which I take the liberty to reproduce as

follows:-

1. That the trial court erred in law and in fact by dismissing the
suit on the account that it lacked jurisdiction to entertain the
same while the cause of action as pleaded in a plant arises
from tort.
2. That the trial court erred in law and in fact by treating the
suit as a matter arising from a contractual relationship as
such lying under the purview of section 18 (Hi) of the
Magistrate Court Act Cap 11 R.E 2019
3. That the trial court erred in law and in fact by dismissing the
suit without lawfully jurisdiction and legal backup.

When this matter came on for hearing, the appellant appeared in

person suing as Next Friend of Leticia Yusuph Stanly (minor) whereas

both respondents appeared in person without representation. The

appeal was argued orally.

Highlighting on the 1st ground of appeal, the appellant submitted

that a prayer for TZS 10,000,000/= was for compensation due to

injuries caused to Leticia Yusuph Stanley, his daughter. He faulted the

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trial court for deciding that the amount claimed was below the pecuniary

jurisdiction of the District Court and maintained that, this being a claim

of tort, it could not be heard by the Primary Court. Thus the competent

Court to try the matter was the District Court or the Resident

Magistrates' Court.

Coming to the 2nd ground, he faulted the trial Court for deciding

that the suit filed by the appellant arose from a contractual relationship

while there was no any contract between the appellant and respondent.

He maintained that the claim in question arose from common law tort.

With respect to the third ground of appeal, he submitted that the

trial Court was not justified in dismissing the case. He maintained that

the Court was required to determine the matter on merit for the interest

of justice. In the end, he prayed for this appeal to be allowed and the

decision of the trial Court be quashed and set aside.

In reply, the 2nd respondent maintained that the trial court was

correct to decide that it had no jurisdiction to entertain the matter since

the claim was TZS 10,000,000/=. He maintained that, the appellant was

required to report the matter to the primary court and not to the district

court. The 1st respondent supported the submissions made by the 2nd

respondent.

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Having heard the rival submissions of both parties, I will pose here

and make a determination on the merit of this appeal. The main

question for determination in this matter is whether the trial Court was

wrong in dismissing the appellant's suit on grounds of lack of pecuniary

jurisdiction to determine the matter.

In order to determine if the District Court had pecuniary jurisdiction

to determine this matter, it is important to ascertain not only the

magnitude of the claim in terms of the specific reliefs sought but also

the nature of the claim. In respect of the present appeal, the appellant

argued that although the magnitude of the claim was lower than the

pecuniary jurisdiction of the District Court under section 40 of the

Magistrates' Courts Act, Cap. 11 (R.E. 2019), the primary Court had no

jurisdiction to entertain the matter as it arose from common law tort.

Indeed, pursuant to section 18(l)(a)(i) of the Act, primary courts have

jurisdiction in proceedings of a civil nature where the law applicable is

customary law or Islamic law.

However, the trial Court made a finding that this being a claim for

compensation arising from injuries related to traffic case No. 08 of 2021,

it is a claim arising out of contract and not common law tort.

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This Court is aware that, in legal terms, a tort is a civil wrong that

causes harm or loss to someone else, and can result in a legal liability

for the person who committed the tort. Negligent driving is one such

tort, where a driver fails to take reasonable care while driving and

causes harm or injury to another person.

In such cases, the injured party may file a lawsuit against the

negligent driver and seek compensation for their losses, such as medical

bills, lost wages, and pain and suffering. The legal basis for this

compensation is the common law tort of negligence and not contract as

wrongly held by the trial Court.

Therefore, since the appellant's claim arose from common law tort

of negligence the primary Court had no jurisdiction to entertain the

matter as alleged by the trial Magistrate (see Seleman Ramadhan v.

Ally Juma [1984] TLR 49 (HC)). It follows that, the matter was

properly lodged at the District Court which had the jurisdiction to

entertain the matter.

That said, I find merit in this appeal and I proceed to allow it

accordingly. As a consequence, I quash and set aside the ruling of the

District Court of Kwimba in Civil Case No.l of 2021. As such, I order that

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the case file be remitted to the District Court of Kwimba at Ngudu to

proceed with the hearing before another Magistrate. Costs in the cause.

It is so ordered.

14/2/2023

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