IN THE HIGH COURT OF TANZANIA '
AT MWANZA
PC. CIVIL APPEAL NO. 5 OF 2005
(Arising from Civil A pp. No. 34/2004 of Mag u District Court and
original Civil Case No. 31/2003 of Kisesa P/Court)
ARCHARD BAKAMANYA............................................................ APPELLANT
Versus
YUSUFU MUSSA...................................................................... RESPONDENT
28/7/2005 & 25/8/2005
JUDGMENT
RWEYEMAMU, J :
This claim is found on tort; negligence and nuisance. Yusuf
Mussa, now respondent and Archard Bakamanywa the appellant are
neighbours in Kisesa Iocaiity of Mwanza Township. Yusuf is an owner
of has a house with tenants, and Archard owns a grinding machine
situated nearby. Yusuf filed a case in Kisesa primary court, claiming
that Archard's machine was causing irritating noise and vibrations;
that the vibrations had caused the walls of his house to crack; that
the machine's exhaust pipe directed toward his house, was producing
dangerous fumes and smoke - irritating his tenants, some of whom
had moved for reason that they found it intolerable to stay.
In the primary court, Yusuf claimed Shs. 1,200.000/=; was
awarded 600.000/=; which sum the district court on appeal by
Archard, increased to Shs. 800.000/=. The district court found that
"damage o f the house and (miscomfort) on the part o f the tenants
l
were caused by the negligent acts o f the appellants by operating a
machine near the house o f the respondent" It also increased the
amount of compensation because, in its own words, "this court
should take into account that the house (need be repaired.') This is a
second appeal.
The first issue for decision is whether the primary court had
jurisdiction in the matter, for if it did not; it would not serve any
purpose useful to the parties, to go into the merits of the appeal.
The jurisdiction of primary courts in civil matters is prescribed
under the Magistrates' Court Act, 1984. Its jurisdiction is in all cases
where the law applicable is customary law; Islamic law; or where
jurisdiction is otherwise conferred by statute; section 18 (1) (a) (i);
(c) and (d) or under the first schedule to that Act.
Now, Civil cases involving customary law torts are justiciable in
primary courts. For example, a father has a recognized cause of
action under customary law, against a person who makes his
daughter who is under 21 years pregnant; See Jacob Mwangoka v.
Gurd Amon, 1987 TLR 165. Other torts like malicious prosecution,
(Selemani Ramadhani v. Ally Juma, 1984 TLR 49) and contractual
tenancy (Pili Juma Ali v. A Khalifa, 1986 t l r 201) are not justiciable in
primary courts.
I have searched to see whether the torts subject matter of the
present claim (which in my opinion are not customary law torts)
have been added on the list; either by statute, or by the Minister
2
under the First Schedule to Act 12/84 of matters triable by primary
courts. My search revealed no such thing. And no wonder, both
courts below just awarded a sum, without showing how assessed
damages were arrived at; which sum was for specific damages and
which for general; or whether the appellant's actions amounted to
nuisance, i.e,
"real interference with the comfort or convenience o f living
according to the standard of the average man".
Sandhu Construction Company Ltd V. Peter E. M. Shayo 1984 TLR
124 (CA)
In the circumstances, I find that the proceedings in the primary
court were a nullity, for lack of subject matter jurisdiction;
consequently so was the appeal to the district court. They are hereby
quashed in their entirety. Yusuf is at liberty to pursue appropriate
remedies like filing the case a fresh in a court with jurisdiction. I
make no orders as to costs.
^ R. M. RWEYEMAl
JUDGE
24/8/2005
Coram: Judgment delivered in the Open Court at Mwanza on
day of August, 2005 in the absence of the appellant and in
the presence of Respondent in person. Right of Appeal
explained. B/Clerk: J. Lwiza
Sgd: R. M. RWEYEMAMU
JUDGE
25/8/2005
