CIVIL PROCEDURE QUESTIONS AND ANSWERS.
QUESTION
“Recent statutory developments in Tanzania have thrown the concept of jurisdiction
into disarray”
Discuss
OUTLINE
1.0 INTRODUCTION
1.1-The concept of jurisdiction
2.0 MAIN BODY
2.1 Statutory development and the changes in juris...
QUESTION
“Recent statutory developments in Tanzania have thrown the concept of jurisdiction
into disarray”
Discuss
OUTLINE
1.0 INTRODUCTION
1.1-The concept of jurisdiction
2.0 MAIN BODY
2.1 Statutory development and the changes in jurisdiction
2.2 Jurisdiction as to the General and Special Courts
2.3 The Recent Statutory Development and the Concept of Jurisdiction
2.3.1 Advantages of the noted statutory development
2.3.2 Disadvantages of the noted statutory development.
3.0 CONCLUSION
Bibliography
1.0 INTRODUCTION
In Tanzania there has been in the recent years the development of statutes. These
developments have the impact on the jurisdiction of the courts as there has been the
establishment of the courts with special jurisdiction. Though the said developments
have affected the entire system of the courts as there is the establishment of the
hierarchy which is independent such as the land division courts in which the Ward
Tribunal is taken as the court for the purpose of the Act establishing it and at the top
,there is the High Court Land Division. Before going to the keen of the question it is
better to start by familiarising ourselves on the concept of jurisdiction.
1.1 THE CONCEPT OF JURISDICTION
The term Jurisdiction is not defined in Tanzanian statutes; hence we have to fall back to
the common law by virtue of section 2 (3) of the judicature and application of laws Act
herein below referred to as the JALA which allows the application of such laws in our
legal system. Jurisdiction is defined as the power or authority of court to hear and
determine a cause, to adjudicate and exercise any judicial power in relation to it 1.in
other words by jurisdiction it is meant the authority which a court has to decide matters
that are litigated before it or to take cognizance of matters presented in a formal way for
its decision2.
Thus jurisdiction of court means the extent of the authority of a court to administer
justice prescribed with reference to the subject matter, pecuniary value and local limits 3.
However generally Jurisdiction is defined as the power of the court or tribunal to hear
and determine matters which are placed before it. Jurisdiction being important matter it
was stated in the case of UTAMWA V AG & MUNGAI4 that jurisdiction must be
determined at the beginning of the proceedings not at the in the course of or at the end
of proceedings.
2.0 MAIN BODY
2.1 STATUTORY DEVELOPMENT AND THE CHANGES IN
JURISDICTION.
In civil procedure the understanding of the jurisdiction of court one has to look on the
statute establishing the respective court. In our country the civil procedure is guided by
the civil procedure code 1966 which according to section 2 of the code the court in
which applies are the High court, the District court and the Resident magistrate court.
However section 7 of the civil procedure code provides the presumption of jurisdiction
to all civil court and gives cognizance of the power of other statute to oust general civil
jurisdiction and to grant exclusive jurisdiction in certain civil matters.
1
C.K. Takwani, Civil Procedure,5th Ed, p 33
2
Official Trustee V Sachindra AIR 1969 SC 823 (827):(1969) 3 SCR 92
3
Raja Soap Factory V S.P Shantharaj A.I.R (1965) SC 1449:(1965) 2 SCR 800
4
Civil Appeal 40/2000.
,In recent years there have been enactments of several statutes which in one way have
affected the ordinary application of the jurisdiction compared to what was previously
conceived.
The recent development of statutes in Tanzania has witnessed the establishment of
several divisions of the high court which varies the jurisdiction of the court. As it is
known the High Court has been established by article 108 of the Constitution of the
United Republic of Tanzania 1977 as amended from time to time. The jurisdiction of
the High Court is provided for under section 2(1) of Judicature and Application of Laws
Act5 that it has an unlimited jurisdiction over all matters.
There is also the enactment of the High Court Registry rules. These rules established
several sub- registries of the High Court which operate in zones, but this is not to be
taken to mean that, the High Court territorial jurisdiction is confined on the said zones
rather it is just for administration matters only. However, there has been recent
enactment of several statutes which either takes away the jurisdiction of court or makes
the court to have concurrent jurisdiction. To understand this, it is time now we look at
different enactments of statutes which have effect on jurisdiction.
To start with is the Land Division; this is a division of the High Court which is
established under section 3 of the Court (Land Dispute Settlement) Act. This law has
taken away the High Court jurisdiction over land matters which previously was the
concern of the High Court main division and vested it to the respective division. The
Act also has caused the establishment of the Village Land Council, the Ward Tribunal,
the District Land and Housing Tribunal; which are recognised as courts under the Act.
All these bodies established under that law are vested with exclusive jurisdiction over
land matters. The Courts (Land Dispute Settlement) act is the product of section 167 (1)
(b) which vests exclusive jurisdiction on land matters over among other tribunals the
High Court Land Division
Another enactment of law which has affected the jurisdiction of the courts is the Labour
Institutions Act; this law under the provisions of section 50 provides for the
establishment of a Labour Division of the High Court; which is a court which exercises
jurisdiction over labour disputes as provided under section 94 of the Employment and
Labour Relations Act 2004.The court has exclusive jurisdiction over labour matters.
This court has taken away the jurisdiction which was at the beginning exclusively
vested on the District Court.
5
Cap 358 R.E 2002
, Also the Commercial Division of the High Court is one of the High Court divisions
which are established by the high court registry rules. Though established by the said
rules it is a division of the high court and not a sub registry. This new established
division is very different from the two previously explained ones, because though it is
established to deal with commercial matters the law establishing it has not granted it
exclusive jurisdiction .It therefore exercises concurrent jurisdiction with the general
division of the high court. The court has been established to deal with commercial
matters.
In recent years there has been enactment of several statutes. The enactment of statutes
which establishes courts usually affect the pre existing system of jurisdiction. A good
example is the Courts (Land Dispute Settlement) Act. This court has varied the
pecuniary jurisdiction of courts over land matters, but with reference to the established
courts/tribunals such as the District Land and Housing Tribunal which has been
established by the law, deals with matters which the subject matter does not exceed 40
million shillings and the Ward Land Tribunal of which has a pecuniary jurisdiction of 5
million shillings. It should be known that this law has taken away the primary court and
district court ordinary jurisdiction over land matters and vested it to the afore said
courts.
2.2 JURISDICTION AS TO GENERAL AND SPECIAL COURTS
Generally Tanzania has three tier court systems which comprises of the High court at
the top, District court and Resident Magistrate Court at the middle and the Primary
Court at the bottom.
The High Court by virtue of section 2(1) of JALA, has unlimited civil jurisdiction,
territorially and pecuniary. The Resident Magistrate Court and District Court have
concurrent jurisdiction over civil matters as provided under section 41 (1) of the
Magistrate Court Act, 1984. District court and resident Magistrate court are established
under sections 4 and 5 of the MCA respectively. The civil jurisdiction of the two courts
before the recent statutory development is as follows.
The pecuniary jurisdiction of the district court in relation to immovable property is
150,000,000/=Tsh. And in respect of the subject matter capable of being estimated at
money value, the courts can entertain such matters where the value does not exceed
100,000,000/=Tsh6. The Resident Magistrate having concurrent jurisdiction with
6
This is provided by the Written Laws (Miscellaneous Amendment) Act No 3 of 2002
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