Hamisi Mwinyijuma & Another vs Honora Tanzania Public Limited Company (Civil Appeal No. 42 of 2023) [2025] TZCA 822 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA, J.A., KENTE, J.A. And MANSOOR. J.A.^ CIVIL APPEAL NO. 42 OF 2023 HAMISI MWINYIJUMA AMBWENE YESAYA ..... I st APPELLANT 2 n d APPELLANT VERSUS HONORA TANZANIA PUBLIC LIMITED COMPANY (Formerly known as MIC TANZANIA PUBLIC LIMITED COMPANY) .... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania 22n d July & 7th August, 2025 MANSOOR, J.A.: The matter originated from Civil Case No. 17 of 2012 filed at the District Court of Ilala by Hamisi Mwinyijuma and Ambwene Yesaya (the appellants) against MIC TANZANIA LIMITED (the respondent) claiming for a declaration that the respondent had infringed the rights of the appellants over their registered joint authorship musical work under the Copyright and Neighbouring Rights Act 1999 (the Copyright Act). They also prayed for an order restraining the respondent from further at Dar es Salaam) (De Mello. 3 .} Dated 20thday of November, 2020 in Civil Appeal No. 112 of 2019 JUDGMENT OF THE COURT l

infringing their copyrights except upon permission from the appellants. The appellants also prayed for general damages at the tune of Tanzania Shillings Fifty Million (TZS 50,000,000), special damages at the tune of Tanzania Shillings Four Billion Three Hundred and Twenty Million (TZS 4.320.000.000), interests at the commercial rate, costs of the suit and any other relief as the court would have deemed fit and just to grant. After a full trial, the trial court entered a judgment in favour of the appellants and declared that the respondent has infringed the copyright of the appellants' joint authorship of musical work. The trial court also issued an order restraining the respondent from interfering with the appellants' copyrights. They were also awarded Tanzania Shillings Twenty-Five Million (TZS 25,000,000) as general damages and Tanzania Shillings Two Billion One Hundred and Sixty Million (TZS 2.160.000.000) as special damages, and costs of the suit. Aggrieved by the decision of the trial court, the respondent appealed to the High Court, Dar es Salaam Registry, in Civil Appeal No. 112 of 2019, fronting ten (10) grounds of appeal. For reasons that the first appellate court dealt with the first ground of appeal only, we shall not reproduce all ten grounds of appeal. The first ground determined by the High Court is on the jurisdiction of the District Court which reads:

"that, the learned trial magistrate erred in law by entertaining the matter before him while the trial court was not seized with pecuniary jurisdiction". The first appellate court allowed the first ground of appeal holding that the trial court erroneously crowned itself with jurisdiction in entertaining and determining the suit not within its mandate. The first appellate court reasoned that the District Court derived its jurisdiction from the Magistrates' Court Act, Cap 11, (the MCA), which has set the pecuniary limits of the courts, and that while it is true that the Act had conferred jurisdiction on the District Courts to entertain copyright matters, such jurisdiction is not general but limited. Thus, the first appellate court held that the District Court did not have pecuniary jurisdiction to try the dispute under section 4 of the Act, as the said provision did not provide for pecuniary jurisdiction of the courts. Adamant that the trial court lacked pecuniary jurisdiction to entertain the suit, the High Court nullified the proceedings of the trial court and set aside the judgment and decree passed by the District Court. The appellants were aggrieved, they filed the memorandum of appeal with four grounds, and we take the liberty to paraphrase them as follows: 3

1. The Judge erred to nullify the proceedings and judgement of the trial court on the ground that the District Court lacked pecuniary jurisdiction;
2. That the Judge erred for not taking into consideration the Judgement passed in Civil Case No. 38 of 2011 by the High Court of Tanzania at Dar es Salaam in which this same matter was struck out as the High Court did not have jurisdiction to entertain it;
3. That the Judge erred for not taking into consideration section 4 of the Copyright and Neighbouring Right Act, 1999 which conferred exclusive jurisdiction to the District Courts on copyright matters;
4. That the Judge erred for failure to analyse the proper position of the law. At the hearing of the appeal, the appellants were duly represented by Mr. Elisa Jones Mndeme, and Mr. Salmin Suleiman Mwiry, learned counsel, while the respondent enjoyed the services of Mr. John James Ismail, learned counsel. Before the commencement of the hearing, Mr. John James informed the Court that the company MIC Tanzania Limited became a

public company in 2018, thus the name of the company changed from MIC Tanzania Limited to MIC Tanzania Public Limited Company. Again, on 22n d June 2023, the respondent's name had changed from MIC Tanzania Public Limited Company to Honora Tanzania Public Limited Company. To this effect, the Business Registrations and Licencing Agency (BRELA) had issued the Certificates of Change of Name to reflect the changes. He thus, prayed that the name of the respondent in the proceedings be changed to read the current name as shown in the Certificate of Change of Name No. 24275. The prayer was not opposed by the counsel for the appellants, therefore, in these proceedings, the name of the respondent shall read "HONORA TANZANIA PUBLIC LIMITED COMPANY, instead of MIC TANZANIA LIMITED, as shown in the Certificate of Change of Name issued by BRELA on 22n d June 2023, a certified copy of which was availed to Court. Back to the appeal, the counsel for both parties adopted their respective written submissions in support of and in opposing the appeal. Thus, having considered the submissions and the record, the point to be determined is whether the District Court had original and exclusive jurisdiction to entertain the matter filed under the Copyright Act.

When arguing in support of the appeal, the appellants' counsel argued grounds 1,3 and 4 together stating that the District Court is vested with pecuniary jurisdiction to entertain a dispute of copyright infringement of over Tanzania Shillings Four Billion (TZS 4,000,000,000). That, the District Court derived its jurisdiction from sections 4, 36 (1) and (2) and 37 of the Copyright Act. The appellants argued further that the High Court in Civil Case No. 38 of 2011 (Mwaikugile, 1, as he then was) had struck out the same matter between the same parties herein for the reasons of jurisdiction and ruled that the High Court lacked the original jurisdiction to entertain matters of copyright infringement and that the court vested with the original jurisdiction by the copyright laws is the District Court. The counsel argues further that, sections 36, 37, read together with section 4 of the Copyright Act, clearly conferred original and exclusive jurisdiction on the District Courts. He argues further that, while it is true as held by the High Court that section 6 of the Civil Procedure Code, Cap 33 (the CPC), as well as section 40 (1) (b) of the MCA, provided for pecuniary limits of the District Courts, however, that same section 6 of the CPC had provided that if any other written law had conferred original and exclusive jurisdiction on courts, that other written law would apply regardless of the value of the subject matter.

On the part of the respondents, their arguments supporting the findings of the High Court relied on the provisions of sections 6, 7 (1) and 13 and Order VII of the CPC read together with section 36 and 40 (1) (b) of the MCA. The counsel for the respondent argues that while section 6 of the CPC compels that suits must be filed and entertained by the courts within their pecuniary limits unless that limit is expressly ousted by any other written law, section 4 of the Copyright Act simply defined the word "court" to mean the District Court, but did not expressly provide that the district courts would entertain those cases regardless of their value. Regarding section 36 of the Copyright Act, counsel for the respondent submits that this section intended that all proceedings of infringement of copyrights and neighbouring rights should be instituted in the United Republic of Tanzania, and never intended to give the exclusive and original jurisdiction on the District Courts only. The counsel insisted that according to section 7 (1) of the CPC which confers jurisdiction to courts to entertain suits of civil nature except only for suits which their cognizance has been expressly and /or impliedly barred, section 13 of CPC requires that all suits to be instituted in the courts of the lowest grade competent to try them. He argues further 7

that, under section 40 (2) (b) of the MCA, the district courts at that time had the pecuniary limit of Tanzania Shillings One Hundred Million Only (TZS 100,000,000), and could not therefore assume jurisdiction to entertain a suit whose value was about Tanzania Shillings Four Billion (TZS 4,000,000,000). On this aspect, the counsel refers to the case of M/S Tanzania

• China Friendship Textile Co. Limited vs Our Lady of the Usambara Sisters, Civil Appeal No. 84 of 2002 (unreported.), which held that the jurisdiction of the court has to be tested under the provisions of sections 6, 7 and 13 of the CPC. The counsel argues further that the decision in Civil Case No. 38 of 2011 decided by Mwaikugile J (as he then was) was reached per incuriam as the District Court is not seized with jurisdiction based only on section 4 of the Copyright Act, which simply defines the court to mean the District Court. He argues therefore that the consequences of the court lacking pre-requisite jurisdiction to entertain a suit is as stated in the Indian case of Chandrakant Tukaram & others vs Municipal Corporation of Ahmedabad & another, Appeal (CIVIL) 4849-4854 of 1992, and that is the nullification of the decree arrived at.

Having considered the counsel's rival submissions and the record, particularly the judgment of the first appellate court, we shall determine the issue whether the District Court was vested with original and exclusive jurisdiction to entertain copyright infringement cases regardless of the value. We shall start with the general principles regarding jurisdiction found in the statutes. It is apparent and there is no doubt that we have in our jurisdiction specific and general jurisdictional laws. The specific jurisdictions are conferred on the courts or tribunals or quasi-judicial bodies by a specific legislation while general jurisdictions are given under the general jurisdictional or procedural laws such as the Judicature and Application of Laws Act, Cap 358 (the JALA), the CPC, the MCA, etc. When a specific law confers jurisdiction on a particular court or tribunal, that specific grant of jurisdiction typically excludes the application of general jurisdictional provisions. This means that if a law explicitly states which court has the authority to hear a specific type of case, that specific law will govern, and the general jurisdictional rules will not apply. The principle, lex specialis derogat legi generali, is a cornerstone of statutory interpretation, dictating that where there is a 9

conflict between a general law and a specific law, the specific law prevails. In the context of jurisdiction, this means that a statute specifically granting jurisdiction to a particular court for a particular subject matter takes precedence over general jurisdictional provisions found in broader procedural codes or acts. The rationale is that the legislature, in enacting a specific law, has given particular consideration to the unique aspects of that subject matter, intending for its provisions to govern exclusively. See for instance, the holding by the Supreme Court of India in Commercial Tax Officer, Rajasthan V M/S Binani Cement Ltd. & Another, which had held that; "It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question , the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim o f generalia specialibus non derogant, i.e., general law yields to special law..." The jurisdiction or legal powers to hear and determine a cause of action must exist as a matter of law. The Copyright Act had expressly 10

conferred on the District Court the original jurisdiction to hear and determine cases of copyright infringements. Section 4 thereof vested the District Courts with the primary jurisdiction to determine and adjudicate copyright matters and exclusive original jurisdiction over all matters involving copyright infringement in Tanzania. Exclusive original jurisdiction implies that the designated court is the sole forum where such cases can be initiated. It signifies that no other court, including those with general jurisdiction, can entertain these matters at first instance. This is distinct from concurrent jurisdiction, where multiple courts might have the authority to hear a case. The legislature's choice to grant 'exclusive' jurisdiction underscores an intention to centralize the initial adjudication of copyright disputes within the District Court, regardless of the monetary value involved, thereby streamlining expertise and consistency in this specialized area of law. In general, the quantum or pecuniary limits of the District Courts' powers to determine copyright infringement cases were never defined in the enabling Act. In other words, the extent to which the District Court may exercise such powers depends largely, if not wholly, on the provisions of the Copyright Act. The grant of original jurisdiction on the

District Court was not implied. There is no question that section 4 of the Copyright Act had defined the court to mean the District Court and section 37 of the Act had expressly provided that all matters relating to copyright infringements shall originally and primarily be tried by the court, in the nature of an unlimited and special jurisdiction, that is, the authority to hear and determine the copyright cases were within the District Courts' competence regardless of their pecuniary value. In conferring adjudicatory powers and functions on the District Court over copyright matters, the legislature could not have intended to give it a limit but to equip it with all the vast powers inherent in the exercise of its original jurisdiction. Now, coming to the case at hand, it is true as argued by the counsel for the appellants that under section 4 and section 36 (1) and (2) of the Copyright Act, before it was amended, the district courts were given exclusive jurisdiction to determine disputes falling under the purview of the infringement of the copyright and neighbouring rights. For the avoidance of doubt section 36 (1) and (2) of the Copyright Act provided as follows: 36 (1) any person whose rights under this act are in imminent danger of being infringed may institute proceedings in the United Republic of Tanzania for: 12

a) An injunction to prevent the infringement or to prohibit the continuation of the infringement. b) Payment of any damages suffered in consequence of the infringement, including any profits enjoyed by the infringing person that are attributable to the infringement. If the infringement is found to have been prejudicious to the reputation of the person whose rights were infringed, the court may, at its discretion, award exemplary damages." Section 36 of the Copyright Act basically requires all proceedings on copyright infringement to be pursued in Tanzania as copyright protection is territorial, and it is limited to the specific country or territory where the work is protected. In order to pursue the copyright protection rights such as the right of injunction to prevent infringement or payment of damages suffered in consequence of infringement, the courts in Tanzania would have jurisdiction. Under the Copyright Act (before the amendment), the only court vested with exclusive jurisdiction was the District Court as section 4 of the copyright Act had defined the court to mean the District Court. Thus, as correctly argued by the counsel for the appellants and the holding in the ruling of the High Court in Civil Case No. 38 of 2011 (Mwaikugile, J. as he then was), when citing section 37 of the Copyright Act that '! Section 37 (1) of the 13

Act directs that the rights protected by the Act once infringed, the injured party, may bring an action in court." Hon. Judge said the following at page 4 of the ruling: "it is important to point out at thisjuncture that the word "may"in section 37(1) of the Act gives a discretion to a party whose rights under the Act have been infringed either to bring an action in court if he so wishes or not at aii. But where the injured party decided to bring an action in court, the word " court"" referred to in the preceding section has been clearly defined in Section 4 of the Act to mean the District Court established under the Magistrates' Courts A c t" Contrary to what was submitted by the Counsel for the respondent that the decision in the above cited case was reached per incuriam, we respectfully do not agree. The correct position of the law is as stated in the Civil Case No. 38 of 2011 (supra), that the Copyright Act, a specific written law has expressly conferred original and exclusive jurisdiction on the District Courts for actions of infringement of copyrights in Tanzania. Since the specific written law that has conferred the jurisdiction on the District Courts to primarily determine 14

infringement of copyright cases, the general jurisdictional law would not apply. Consequently, based on the above, we allow the appeal and quash the decision passed by the High Court in Civil Appeal No. 112 of 2019. We also order the High Court to determine the rest of the grounds of appeal raised by the respondent herein. The respondent is also condemned to pay costs of the appeal. DATED at DAR ES SALAAM this 6th day of August, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 7th day of August, 2025, in the presence Mr. Fredrick Massawe Augusti, learned counsel for the appellants who is also holding brief for Mr. John James Ismail, learned counsel for the respondent, is hereby certified as a true copy of the original.