NYABAGAYA MTANI v NYAKANYI KABERA 1983 TLR 332 (HC)

NYABAGAYA MTANI v NYAKANYI KABERA 1983 TLR 332 (HC)

Court High Court of Tanzania - Mwanza

Judge Munyera J

September 27, 1984

CIVIL APPEAL 158 OF 1982

Flynote

Tort - Slander - Allegation of witchcraft - Jurisdiction of Primary Court. B

Tort - Slander - Publication - No publication where defamatory words uttered before

respondent only.

-Headnote

The appellant had called the respondent a witch and the latter being aggrieved

convened C and complained before a meeting of elders. In order to clear herself she

went to a witch finder who certified that she was clean. Thereafter she sued the

appellant for two cows as damages and expenses she incurred in travelling to the

witch finder. The trial D court awarded damages and expenses as prayed. The

appellant appealed to the District Court which set aside the damages but affirmed the

expenses. She appealed further to the High Court.

Held: (i) The Primary Court had jurisdiction to try the case since an imputation of E

witchcraft is a known customary law tort of defamation;

(ii) since the defamatory words were uttered before only the respondent there

was no publication; the repetition of the words to the elders was done by the

respondent which did not amount to publication by the appellant. F

Case Information

Appeal allowed.

No case referred to.

[zJDz]Judgment

Munyera, J: The respondent was the plaintiff before Mugango Primary Court. She G

sued the appellant for damages for slander. She stated that on 23/11/81 at about 9

a.m. the appellant passed by her (respondent's) house. It appears she (appellant) was

drunk. She addressed respondent as a witch, that she (respondent) had caused the

death of H their child. At that time nobody else was present except these two

women. The respondent felt bitter about the appellant's remarks. At 11 a.m. same

day she convened a meeting of elders and complained to them. In order to clear

herself she offered to go to Ukara Island to contact a witch finder. She raised Shs.

3,080/= to enable her go. I There she said the witch finder certified her clean. She

returned and filed this suit claiming damages 2 cows and reimbursement

1983 TLR p333

of her Shs. 3,080/= she spent in going to Ukara. She won the suit. The trial court A

ordered the appellant to pay the two cows and Shs. 3,080/= plus costs. She appealed to

the District Court and won part of the appeal. The District Court set aside the award

in relation to the two cows but confirmed that in relation to Shs. 3,080/=. She

appealed further to this court. B

There are two main arguments in this appeal. First (para 4) that the Primary Court

had no jurisdiction over witchcraft cases. Secondly (para 3) that the appellant did not

force the respondent to go to Ukara Island nor did she accompany her. Therefore she

was not liable to the costs the respondent alleged she incurred. I start with the

question of C jurisdiction. It should be remembered that the suit concerned

defamation (slander). I do not agree that Primary Court had no jurisdiction.

Witchcraft is something known to local people from time immemorial. If somebody

imputed witchcraft to another whom people knew was not a witch the imputer

would be told to compensate the latter. This is a D customary law tort of

defamation. The Primary Court had jurisdiction. The appellant's argument in that

respect fails. I now go to the merits of the case. Going by the respondent's own

evidence the remarks by the appellant that she was a witch were uttered when they

were only two and nobody else heard them. She on her own initiative E called a

meeting and repeated what the appellant had told her. This did not amount to

publication by the appellant. On this ground the appeal succeeds, I allow it, set aside

the award of Shs. 3,080/= and dismiss the respondent's suit in its entirety. The

appellant did not appear so no costs.

F Appeal allowed.

1983 TLR p333

G