Court name
High Court of Tanzania

Zacharia Milalo  vs Onesmo Mboma () [1984] TZHC 45 (26 November 1984);

Law report citations
1983 TLR 240 (TZHC)
Media neutral citation
[1984] TZHC 45
Coram
Lugakingira, J.

Lugakingira, J.: The respondent Onesmo Mboma, in his capacity as Ward Secretary of Chipanga Ward in Dodoma District, sued the appellant Zacharia Mlalo in the Primary I Court at Chipanga for occasioning loss of Shs. 4200/= to a village shop through

negligence.  The appellant was the manager of the shop and the money comprised of A proceeds of sales for which he had exclusive custody.  He admitted the claim.  Nevertheless, evidence was adduced and in the end he was adjudged liable and ordered to refund the money and costs of the suit.  That was on 16 April, 1981.
On 12 May, 1981 the appellant wrote to the District Court, Dodoma an unsigned letter B in which he purported to set out what transpired at the trial, but without indicating his intentions or motives.  The District Magistrate before whom the letter was placed was rather perplexed and endorsed on it: "Akija au kama yupo anione". In the event the Magistrate never saw the appellant.  Instead, on 12 November, 1981, the appellant C wrote a reminder following the attachment of his cattle nearly three months earlier on 19 August 1981.  The reminder was similarly a fulminating and distorted narration of what transpired at the trial, but on this occasion he also invited the District Court to call for the trial record "kwa haki zaidi".
It was otherwise not an appeal as such.  It came to the attention of another Magistrate D who minuted that the writer be advised to apply for leave to appeal out of time.  It seems that the appellant was duly advised for he filed an affidavit on 5 May, 1982, but without attaching the grounds of his intended appeal.  Nevertheless, the application was heard and eventually dismissed on 17 March, 1983.  The learned Resident Magistrate who E heard the same ruled that the delay was occasioned by the appellant's sluggishness and was without reasonable cause.  He also observed in passing that the trial court had no jurisdiction in the matter as he was unable to see elements of customary law.  From this ruling the appellant appealed here through learned counsel Mr. D.C. Mbezi. F
Before this Court Mr. Mbezi took up two points.  He argued, in the first instance, that the Resident Magistrate erred in holding that the appellant was responsible for the delay.  He maintained that whenever the appellant called he could not find the magistrate who had wanted to see him.  That was indeed the story which the appellant had narrated to G the Resident Magistrate.  Secondly Mr. Mbezi submitted that after the Resident Magistrate had observed that the trial court acted without jurisdiction he should have declared the proceeding a nullity.  Significantly, however neither the petition of appeal filed by Mr. Mbezi nor his submissions before me contain any prayer for any relief. H There was even no prayer for costs, but that does not bother me.  I therefore do not know what this Court is called upon to do: whether to direct the District Court to hear and determine the intended appeal or whether to quash the proceeding for the alleged nullity.
The above matter has exercised my mind somewhat.  It could also be novel.  I have I therefore decided to turn to the relevant provisions of the

law in an endeavour to discover some guidance.  I think I am correct in saying that the A appeal is governed by the provisions of the Primary Courts Civil Appeals Rules, G.N. No. 312 of 1964, the proceeding having originated in a Primary Court.  Under r. 4(1) thereof it is provided that every petition of appeal shall set out precisely the grounds of objection to the decision or order appealed against. B
This rule is not dissimilar to 0.39, r.1(2) of the Civil Procedure Code.  Surprisingly, however, neither of these rules require the petition to embody a prayer for the relief or reliefs desired.  Would that mean that such  a prayer is unnecessary or undesirable? I find it difficult to say so. I think that even in the absence of express provisions to that C effect it would be idle to suppose that such a prayer is not implied, otherwise the appeal would be without purpose.  In this connection one may usefully turn to the position obtaining in the institution of suits.  Under r.15(1)(e) of the Primary Courts Civil  Procedure Rules, G.N. No. 310 of 1964, the plaintiff is required to specify the relief D claimed and this requirement is mandatory.  Again this is similar to 0.7, r.1(g) of the Civil Procedure Code which is restated in amplified form as r.7, and again the requirement is mandatory.  I therefore imagine that where the plaintiff fails to specify the relief claimed as required by these rules the court cannot proceed to hear the suit unless the plaint is E amended.  By analogy, it seems to me that even an appellant has to specify the relief desired.  It is of course permissible for the appellant (as with the plaintiff) to pray for alternative reliefs even if they are inconsistent, so long as they are not also embarrassing.  Mulla says that a pleading is embarrassing if it is so drawn that it is not clear what case F the opposite party has to meet at the trial.  The same is undoubtedly true in an appeal.  The respondent would be embarrassed if it is not clear what case he has to meet.  Assuming in the instant appeal that the appellant seeks to be permitted to prosecute his appeal in the District Court or, in the alternative, to have the proceeding quashed, I think G that that is embarrassing to the respondent.  It is the more embarrassing since there was no prayer of any kind, let alone in the alternative, so as to enable the respondent to prepare his case.  It is on these grounds that I think a proper petition of appeal should specify the relief desired.  I was minded to dismiss this appeal on this ground of want of purpose but in view of Mr. Mbezi's curiosity, perhaps also my own, I will proceed and H look into the arguments canvassed before me.
Starting with the issue of delay, I find it difficult to appreciate Mr. Mbezi's contention.  It is I think evident from the summary of events that the appellant was indeed sluggish.  He chose as his modus operandithe pleasure of writing polemical letters, one of which he I never even signed and both of which had no purpose.  It was as if he was recording his

experience, but, even this, without recording it accurately.  It is equally difficulty to A believe, and the Resident Magistrate could not believe, that the appellant was calling at the Court but getting no assistance.  If he was intent on seeing a particular Magistrate, that again was his fault.  The business of the Court is not the preserve of any particular Magistrate, at least at that preliminary stage.  And which particular Magistrate was he B intent on seeing when he had not met one before?  In considering this, I cannot fault the finding of the learned Resident Magistrate that the appellant's allegation was untrue.  In all probability, it seems that after writing his first and unsigned letter the appellant decided to call it a day.  Perhaps if it were not for the attachment of his cattle, a very sensitive C issue in this area, we would have heard no more from him.  I am thus satisfied that the delay was wholly of his own making and that it was without reasonable cause.  If it is necessary to state any rule on the matter I would say that the right of appeal must be seen to have been exercised before the appellate Court can bear or share responsibility D in the delay.  This right is not exercised by merely lodging letters of accusations with that Court.  I would go further and say that in exercising its discretion to grant or not to grant leave to appeal out of time the appellate court is also entitled to have regard to the prospects of the intended appeal.  In the instant case, it is virtually impossible to see the E prospects of the intended appeal.  He said, to use his own words, "Sina ubishi na ushahidi.  Nitalipa tu upungufu huo Shs. 4,200/=".  In view of this, the application was in fact a waste of time.  I am satisfied on the whole that it was properly dismissed.
The issue of jurisdiction is equally interesting.  Mr. Mbezi argued that the Primary Court F had no jurisdiction first because the suit was founded in tort-conversion as he viewed it - and secondly because the value of the subject matter exceeded Shs. 1,000/=.  I see no substance in these arguments.  I propose to dispose of them together; meanwhile, I think there is need for some general observations on the civil jurisdiction of Primary Courts.  Suppose a villager employs another villager in the management of the former's G property or business and the latter subsequently fails to account for it either through negligence or conversion: I have yet to hear that a Primary Court would have no jurisdiction in the matter.  There are decided cases, indeed, involving alleged negligence H or conversion where persons have been sued in Primary Courts without this Court expressing disapproval.  See for instance Selemani Hoti v Iddi Omari [1967] HCD n. 282 and Yohana Mujuni v Isaya Bakobi [1969] HCD n. 23.  It seems to me that it is these exotic terms "negligence", "conversion", "trespass", etc., with their tinge of I learnedness, that encourage some of us to misapprehend the jurisdiction of Primary Courts,

as if civil wrongs were unheard of and were unjustifiable until the advent of English law A and the English language.  The notion is erroneous and this requires no demonstration.  These wrongs existed in our communities and were justiciable according to customary law.  It is therefore incorrect to say that a Primary Court has no jurisdiction in a civil matter merely because some foreign nomenclature can be applied to it. In so far as I B know, there are three situations in which a Primary Court would not have or would be deprived of jurisdiction. These are where the law applicable is neither customary law nor islamic law; where jurisdiction is expressly taken away by statute; and where the dispute is of such legal and technical complexity as to be considered beyond the competence of C such court. In all other respects a Primary Court has and may exercise jurisdiction.
We can now look at the position in the instant case. Starting from below we find that the case was not complex at all. It was commenced and concluded at one sitting, the only evidence involved being that of the respondent and the appellant. The issue  involved D was not a dispute either, for the appellant promptly admitted the claim. One therefore marvels at his courage in his present rancour and refraction. In substance, therefore, the suit was within the competence of the Primary Court. We next find that this was not a suit which by statute was removed from the jurisdiction of that court. Mr. Mbezi's E reference to pecuniary jurisdiction was irrelevant if customary law was in fact applicable. The Magistrates' Courts Acts, 1963 and 1984 prescribe a pecuniary jurisdiction only in suits for the recovery of civil debts due to the Republic or local authorities and suits for the recovery of similar debts arising out of contract. There is no pecuniary  limitation  in F all other suits which a Primary Court has jurisdiction to try. The instant case was not for the recovery of a civil debt due to the Republic or a local authority nor was it founded in contract. Therefore, if customary law was applicable, it was within the jurisdiction of the Primary Court regardless of the value of the subject matter.
It is clear from the foregoing that the most important question on this case is whether, in G fact, customary law was applicable. I hasten to say that it was. First of all, I do not think that it made any difference that the money lost was that of a village shop as distinct from that of an individual villager. In fact it was the money of an unknown number of individual villagers in the absence of evidence that the shop had a corporate H personality. When these villagers set up the shop and appointed  the appellant its master they could not have contemplated that their relations would be  governed by some foreign jurisprudence and there is no evidence to suggest so. In the absence of such evidence the dealings of villagers have to be construed  as governed by their customs: I Mtatiro Mwita v Mwita Marianya [1968] HDC n. 82. The informality that

seems to have attended the appellant's appointment argues loudly for that construction in A the instant case.  Secondly, and probably more significantly, the assessors in this case did in fact state what amounted to a legal rule.  They said that the appellant was liable for the loss "Kwa sababu yeye ndiye alikuwa meneja wa duka ... ndiye alikuwa mkubwa".  In other words, they found him strictly liable by virtue of his position.  They B could indeed have held that he had personally converted the money for he had exclusive custody of it and the cupboard in which he alleged to have locked was not found broken.  Nevertheless, the opinion of the assessors show that strict liability is unknown in customary law.  These assessors were ordinary villagers without pretensions C to a scholarly background but having as their source the customs of their society.  The soundness of their view is also beyond question.  Admittedly, the rule they expressed had not been established in evidence; but by virtue of the provisions of s. 37(a), Act NO. 2 of 1984, which re-enacts s. 32(3)(a) of the Magistrates' Courts Act, 1963, this D Court is enjoined not to refuse to recognise any rule of customary law on the ground that it has not been established in evidence, but may accept any statement thereof which appears to be worthy of belief which is contained in the record of proceedings in or before any lower court which has exercised jurisdiction in the case. E
There have been decisions, notably Rex v Ndembera Mwandawale (1947) 14 EACA 85 and Peter Merishoki v Barnabas Kiriri [1969] HCD n. 286 in which the view was expressed that customary law ought to be established in evidence.  In view of the provisions just cited these decisions and similar ones are to that extent not the law of this F country.  I believe the foregoing sufficiently demonstrates that customary law was applicable in this case, hence that the Primary Court had jurisdiction.
G   Appeal dismissed.

H