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Ally v. Nassor (PC) Civ. App. 108-M-70; 12/10/71; Jonathan Ag. J.



Ally v. Nassor (PC) Civ. App. 108-M-70; 12/10/71; Jonathan Ag. J.

The appellant instituted criminal proceedings against the respondent in the primary court on account of an alleged assault on the former by the latter. The magistrate dismissed the charge for want of evidence. Following the decision the respondent instituted in the same court civil proceedings against the appellant for malicious prosecution, demanding damages of Shs. 3000/= the court awarded him damages of Shs. 2000/=. From that decision there was an appeal to the district court on grounds which included, among other things, lack of jurisdiction having regard to the Magistrates’ Courts Act, and misdirection as to the burden of proof. The appeal was, however, dismissed.

Held: (1) “As regards jurisdiction, proceedings in primary courts are governed by the Magistrates’ Courts Act. Section 14(1) (a) of the Act confers civil jurisdiction to primary courts. For convenience, I would quote the above cited part of the section: - Section 14. (1) A primary court shall have and exercise jurisdiction – (a) in all proceedings of a civil nature – (i) where the law  applicable is customary law or Islamic law; Provided that no primary court shall have jurisdiction in any proceedings – (A) affecting the title to or any interest in land registered under the Land Registration Ordinance; or (B) in which Islamic law is applicable by virtue of the provisions of the Marriage, Divorce and Succession (Non-Christian Asiaties) Ordinance; or (ii) for the recovery of civil debts, rent or interest due to the Republic, the Government or any municipal, town or district council, under any judgment, written law (unless jurisdiction therein is expressly conferred on a court or courts other than a primary court), right of occupancy, lease, sub-lease or contract, if the value of the subject matter of the suit does not exceed two thousand shillings, and any proceedings by way of counter claim and set off therein of the same nature and not exceeding such value.” (2) “These provisions are not free altogether from difficulties of interpretation. It is, however, clear that a claim in tort, as the one under consideration, does not come under any of he items specified in the provisions. With respect, the learned district magistrate’s view is correct that these provisions are irrelevant to the proceedings under which the damages were sought.” (3) “There remain to consider the provisions under (i) Counsel for the appellant has submitted that the original proceedings were founded upon a  specialized branch of the law of tort in which primary courts have jurisdiction. However, it would appear from the provisions that save as excepted therein, all civil wrongs including those contractual and in tort is justice able by primary courts provided there are, in each case, rules of customary or Islamic law governing such wrongs.” (4) “The question was then posed both before the district court and before me: How is it to be determined if such rules obtain? As observed by the district magistrate, the question is one of considerable difficulty. Rule 3(3) of the rules made under s. 15 of the Act make it clear that the customary law rules do not have to be proved. However, that is one thing; it is completely another if there are rules governing a particular subject. One of the

            authorities cited to the district court is a decision of this Court in Ezekiel s/o Luka versus Kijana Mlinda which is reported in the High Court Digest 404/68. The district court appears to have refused to follow that decision. I have had the advantage of reading the full judgment ……….. with [the reasoning in that case I respectfully agree].” (5) “Section 32 (3) of the Act would entitle this Court in its appellate jurisdiction to peruse the proceedings in he courts below for any statement that is believable as to the existence of customary rules on the subject which this Court might apply. It is also open to this Court to apply any customary law rules that are discernible from any credible source as are considered best suited to all the circumstances of the case. I have been hard placed to glean form the proceedings in the courts below any indication that such rules were in existence. I am not satisfied that the award of damages is, in itself, such indication. Nor am I aware of the existence of any rules of customary law relating to damages for malicious prosecution. It seems to me, therefore, that, in trying the case the primary court assumed jurisdiction it might not have had. This alone would dispose of this appeal.” (6) “[Counsel] also referred the district magistrate to the case of Abdul Javer Meghji v. Alibhai Mitha which was decided by this Court and reported as H. C. D. 235/67. There it was held, inter alia, that in order to succeed in a claim for damages for malicious prosecution, it is essential to establish malice. The district magistrate disregarded this decision, holding that it was irrelevant to the facts of the case before him then. With respect, it was not. I do not find it necessary to go into the facts of that case for it is clear from the decision of this Court in that case that malice must be established, whatever the facts of the case may be. I think that is settled and certainly good law.” (7) Appeal allowed.

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