Mwalusanya, J.: This was a suit for a claim of damages for malicious prosecution filed at Singida District Court by the appellant Charles s/o Lala against the respondent Abdallah s/o Mangi. He claimed Shs.200,000/= as damages and he lost the suit and I hence this appeal to this court.
The practice to the suit are both Wanyaturu by tribe, of Singida District. The learned A trial magistrate assured that the English common law of malicious prosecution was applicable without conducting any inquiry if that law was applicable. According to s.9 (l) of the Judicature and Application of Laws Ordinance Cap. 453: B
Customary law shall be applicable to and courts shall exercise jurisdiction in accordance therewith in matters of a civil nature, between members of a community in which rules of customary law relevant to the matter are established and accepted - except in any case C where it is apparent, from the nature of any relevant act or transaction, manner of life or business, that the matter is or was to be regulated otherwise than by customary law.
In the case at hand it was common ground that parties belonged to the same D customary law community of the Wanyaturu. So what remained for the trial registrar to enquire were two matters:
1. First whether among the Wanyaturu there are rules of customary law regarding E malicious persecution which are established and accepted.
2. Secondly, whether from the nature of the wrong of malicious prosecution, it was apparent to the parties that they would not be governed by customary law of the Wanyaturu. F
Failure to make an inquiry on these two matters was fatal. This is because if these two matters are not, then the court (including the District Court) is obliged to apply customary law as s.9 (l) of Cap. 453 directs. G
Under s. 63 (l) of the Magistrate's Court Act No. 2 of the 1984 for customary law torts of malicious prosecution, defamation, destruction of crops by cattle, negligence etc. both the Primary Courts and District Courts have concurrent jurisdiction. It is only civil suits under customary law involving marriage, guardianship or inheritence and immovable H property, that the Primary Court has been given exclusive jurisdiction - see s.63(l) of the M.C.A. No. 2 of 1984. Section 13 of the Civil Procedure Code No. 49 of 1966 requires all suits to be instituted "in the court of the lowest grade competent to try it" but s. 63 (2) of the MCA provides that s. 13 shall not be read to require any proceedings I of a civil nature to be
commenced in a Primary Court. So far a customary law tort of say malicious A prosecution where both the Primary Court and District Court have concurrent jurisdiction, it is quite proper for the District Court to hear such a suit. And that is what is envisaged by s. 7 (3) of the Magistrate's Court Act No. 2 of 1984 and see the decision of Georges C.P. in the case of Kulthum Ally Kara v Yassin Osman B [1969] E.A. 34 (T) and the decision of Seaton J. in the case of Francis s/o Mwijage v Boniface s/o Kabalemeza [1968] H.C.D. n. 341. I have made that extensive exposition only to array any fears that the trial magistrate might harbour that he has no jurisdiction to hear a suit involving a customary law tort. In fact he is obliged to use C the customary law where it is applicable as indicted in s.9 (l) of Cap. 453; and the Tanzania Court of Appeal has emphasized that point with all the command at disposal in the case of Maagwi s/o Kimito v Gibano s/o Werema: Mwanza Civil Appeal No. 20 of 1984 (unreported). D
In the case at hand the trial magistrate did injustice to the parties by not making an inquiry as to whether customary law was applicable to the circumstances or not. He just assumed that English common law was applicable. The trial magistrate should note that English common law is not always applicable, but as s. 2 (2) of Cap. 453 provides, it E is only applicable "in so far as the circumstances of Tanganyika and its inhabitants permit and subject to such qualifications as local circumstances may render necessary. Thus where customary law is applicable the English common law should not be invoked as the inhabitants do not permit it. F
There is a vast difference between the ingredients of the tort of malicious prosecution under English common law the ingredients are:
G (a) That the criminal proceedings have been terminated in the plaintiffs favour;
(b) That the defendant acted without reasonable and probable cause;
(c) That the defendant acted maliciously ie. with improper motive; H
(d) That the plaintiff has suffered some damages.
These ingredients were expounded by the House of Lords in the case of Herniman v Smith [1938] A.C. 305.
In contrast, in almost all our customary laws, ingredient (c) and (d) above are not I essential ingredients. Under most customary
laws it is enough if the criminal proceedings terminated in the plaintiff's favour and the A defendant noted without reasonable and probable cause. The difference comes about because under customary law, the foremost consideration in tortious liability is to reconcile the litigants so as to maintain the equilibrium between the two parties and their clans - see T.O. Elias in his book. The Nature of African Customary Lawpp. 130 B - 131. Therefore proof of malice is not necessary and proof of damage is not necessary. The position under English common law is different because under that system of law the object of tortious liability is to compensate the victim for the harm suffered. Thus substantial compensation is paid if damage is proved including vindictive damages. C Under English law judges are not concerned with what goes on between the parties after the verdict. That is why they insist that malice should be proved and damages be proved. Our own traditional African system of delivering justice was a vestibule system D of justice concerned more with the end result of doing justice both to the individual and the community, which is a system of common-sense justice.
I recently had occasion to hear an appeal involving the tort of malicious prosecution under Nyaturu customary law. The case is Marcel Kisiu v Timoth s/o Msuta E Dodoma (PC) Civil Appeal No. 23/1991, judgment delivered on 30/7/1995. The case shows that there are rules of customary law for malicious prosecution under the Wanyaturu, and that the ingredients of that tort are less stringent than the English common law and that the aim is reconciliation with payment of a token compensation F called Mbio Goya Mghongo.
Of course I am aware of the decisions of this court which have decided to engraft the ingredients of the tort of malicious prosecution under English common law into our customary law. See for example El-Kindy J. in the case of Waisirikare v Baraki G [1971] HCD n. 112. And in cases like Festo v Mwakabana [1971] HCD n. 417 and Moris Sasawata v Mattias Malieko [1980] TLR. 158, the District Courts merely assumed that English common law of malicious prosecution was applicable without holding an inquiry as to its applicability. The High Court did not question such an H irregularity. Therefore those decisions are of doubtful authority.
Be that as it may, in the case at hand, both under English common law and under Wanyaturu customary law, the appellant had failed to prove his case on a balance of probabilities. The respondent had every reasonable and probable cause for reporting I the appellant to the Police as a suspect who had stolen his cattle. There was the
evidence of the village Chairman Abel s/o Buko (DW.2) who testified that one Juma A was found with the stolen cow of the respondent. When questioned Juma stated that he had bought the same from the appellant. That is why respondent reported the matter to the Ward Secretary and the police. The appellant did not disclose any malice or improper motive on the part of the respondent in reporting the matter to the proper B authorities. All that respondent wanted is a proper investigation by the appropriate authorities.
In the event this appeal fails. I dismiss the appeal with costs.
C Order accordingly.
D
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