Court name
High Court of Tanzania

Susana Shija vs Paulinus Kazulunga () [1985] TZHC 10 (30 April 1985);

Law report citations
1984 TLR 58 (TZHC)
Media neutral citation
[1985] TZHC 10
Katiti, J.

  D Katiti, J.: This case has unfortunately may be inadvisably, taken a tortuous meandering, if not also a stumpy course. Susan Shija and Paulinus Kazulunga, herein the appellant and the respondent respectively, who had enthusiastically and wilfully entered a matrimonial bond, publicly promising   E monopoly of the same to the exclusion of all others, as wife and husband respectively, found themselves matrimonially asunder in Nyalikungu Primary Court, Maswa, Civil Case No. 6 of 1979. While the issue of custody of the children of the marriage, was revisited in Tabora High Court   F Matrimonial (PC) Civil Appeal No. 4 of 1979, the question of division of matrimonial property, in this case a house situated in Sengerema Township, remained an uncomfortable thorn in their flesh. So, Susana Shija filed an action, Civil Case No. 25/1982 in Sengerema Urban Primary Court, seeking division of matrimonial property - i.e. the house situated in Sengerema plot No. 38 Block B. As   G claimed by the appellant, the respondent failed, or ignored to honour notices of hearing dates the court allowed the appellant to proceed ex-parte, and hence the court's verdict, that the appellant was entitled to 50% of the value of the house. The respondent's application to have the ex-parte judgment set aside, was unsuccessful.
  H The option open to the respondent was to appeal, and indeed, through the services of a Mwanza based advocate Mr. Kahangwa, an appeal was lodged before Sengerema District Court - hence Sengerema District Court Civil Appeal No. 5 of 1984. For reasons that I shudder to speculate on,   I unsafe as it is, the Senior Resident Magistrate called for the record in the manner as is hereunder, inter alia shown:

   Having perused the file and having checked the District Magistrate's Order, I order that the appeal be heard A here in Mwanza. Mr. Mwihava Resident Magistrate, to hear the same on the date he will fix, and transmit to parties.
Sign. B
Senior Resident Magistrate
I am not here primarily concerned with the confusion between an administrative and a judicial function, inherent in the excerpt above. I shall proceed to point out, that indeed Mr. Mwihava sitting  C in Mwanza District Court, heard the appeal lodged in Sengerema District Court, and while the caption of his judgment read, "IN 
THE DISTRICT COURT OF SENGEREMA, AT SENGEREMA CIVIL APPEAL NO. 5 OF 1984, the caption of the decree loudly reads - IN THE DISTRICT COURT OF MWANZA, AT MWANZA.  D CIVIL APPEAL NO. 6 OF 1984. The culmination of the hearing of this appeal, was that the appeal was allowed, and the Sengerema Primary Court ex-parte judgment and attendant order, or orders were set aside.
The appellant Susan Shija has through the able agency of Mr. Mahatane, an Arusha based advocate  E appealed against the decision of the District Court Mwanza, in its appellate capacity, on the following grounds:
   (i)    That the Learned Resident Magistrate sitting in the District Court At Mwanza, had no jurisdiction to adjucate over the Appeal. F
   (ii)    That the learned Resident Magistrate, failed to direct himself on the point of law, to the effect that the Application which had been filed at Sengerema Primary Court by the Respondent on 17th January, 1984 was time barred. G
   (iii)   That Learned Resident Magistrate erred in admitting on appeal the Exhibit of the copy of the Police message, from the hands of the Respondent, who had never had the custody of that document, and who was not the author or the recipient of the same. H
   (iv)   The Learned Resident Magistrate erred in that he did not note in the record, that there was no evidence by the Respondent that he had informed his employers, that he had been summoned to attend the Court at Sengerema on 15th October 1983, and that the employer had refused that request from him. I
   (v)    The Learned Resident Magistrate erred, in that he failed to

A       take into account the fact that the decree of the Primary Court, had been executed and the house had been sold long before the application for setting aside the decree had been filed in Court.
   (vi)   The Learned Resident Magistrate erred in law in failing to note that an Application for B division of matrimonial assets under Section 114 of the Law of Marriage Act 1971 is not affected by the provision  of Paragraph 21 Part (iii) of the Schedule to the Law of Limitation Act 1971, and that it can be filed in Court independently of the decree of divorce.
C    (vii)   The Learned Resident Magistrate erred in law in failing to appreciate the heavy burden of proof placed upon the Respondent, in proving the sufficiency of the reasons for failing to attend the hearing of the case.
   (viii)   The Learned Resident Magistrate erred in law in that he shifted the burden of proving the D insufficiency of the reasons for non-attendance the hearing of a suit.
   (ix)   The Learned Resident Magistrate erred in taking into account matters not relevant in law in determining the issues before him.
E    (x)   The Learned Resident Magistrate erred in setting aside the decision of the Primary Court, and the order made thereunder without sufficient grounds.
  F REASONS WHEREFOR the Appellant prays the Honourable Court to set aside the decision of....
I shall hereafter deal with all the grounds of appeal seriatim or sequentially if need be. The first ground of appeal, as it does sequentially appear to be, is that the learned Resident Magistrate sitting   G in the District Court at Mwanza had no jurisdiction to adjudicate over the appeal. Mr. Mahatane did warriorlike forcefully and eloquently cite several, if not many sections, from the Magistrates' Courts Act Cap 537 and or as repealed and re-enacted with modifications by the Magistrates' Courts Act 1984, that came into application on 1/7/1984.
  H Having scrupulously invested efforts and scrutiny over the case generally, I feel convinced and satisfied that the answer to the 1st ground of appeal above, may be gathered from first, the subject matter, second the appellate tier system and third, the courts' territorial jurisdiction obtaining for the   I time being. In this case the subject matter was a prayer, subsequent to divorce for the division of matrimonial assets, a house, purportedly acquired through joint

efforts by the appellant and the respondent during the life of their marriage. The division of  A matrimonial assets being as it does, a prayer, that falls under the provisions of section 114(1) of the Law of Marriage Act 1971, is of the nature of matrimonial proceedings under part VI of the Marriage Act. It does follow jurisdiction wise, that a Primary Court, which Sengerema Urban Court is, has  B jurisdiction to entertain, inter alia prayers for division of matrimonial assets, from either of the parties.
The above, I think, is not an exercise in superfluity, as it does establish the jurisdictional base of the Primary Court, in the subject matter, lest the cart is placed in a position to pull the horse. The right of  Cappeal from the decision of a court, be it original, or of first instance, or intermediate, is statute given, and relevant to this case, it is the Law of Marriage Act, section 80, as amended by Act No. 15 of 1980, that where in a matrimonial proceeding, which proceedings these were, a party is aggrieved  D by any decision, or order of a Primary Court, if the action is filed there, may appeal from that Court, first, to the District Court.
The appellate tier system at this stage is, as it will presently and obviously emerge, inextricably linked with territorial jurisdiction. A District Court, exercising jurisdiction within that very district, in  E which it is established, - see section 2 and 4 of Magistrates Courts Act 1984 or section 2 and 5 of Magistrates Courts Act Cap. 537. Correspondingly, it is even trite that a Primary Court is established in every district, and does exercise jurisdiction within that very District, in which it is established. It  F cannot be imagined I think, in the absence of anarchy which we do not have, that the order and direction of flow of appeals, are other than statutory creatures, to ensure justice. In the direction of flows of appeals posed herein above, we have the legislature through section 20 of the Magistrates' Courts Act 1984, or section 16 of the repealed and re-enacted act Cap. 537, providing as follows: G
   Section.: 20 (1) Save as hereinafter provided:
   (a)    ....
   (b)   In any other proceedings, any party, if aggrieved by an order of the Primary Court, may appeal  H herefrom to the District Court of the District for which the Primary Court is established.
I think, first it befits the occasion to untimorously associate myself with the underlining above - it is  I mine. But, second, more

  A important is the import of the underlined part, that appeals from Primary Courts have to be lodged in the District Court of the District for which the Primary Court is established. If I venture to relevantly relate the import of the above provisions, to the instant case, appeals from Sengerema   B Urban Primary Court, or from any primary Court in Sengerema District, in the absence of statutory provisions to the contrary, which we do not have, are supposed to be filed in Sengerema District,  which by virtue of Section 80 of the Marriage Act 1971, in case of matrimonial proceedings, and Sections now 4 and 20 of the Magistrates' Courts Act 1984, or Sections 5 and 6 of the repealed and   C re-enacted Act Cap. 537, has jurisdiction to adjudicate upon such appeals.
Having given anxious consideration to the record in this appeal, I have noted with a shadow of doubt, that the respondent, had infact through Mr. Kahangwa, a Mwanza based advocate appealed   D to Sengerema District Court - hence Sengerema District Court Civil Appeal No. 5/1984. But for all we know, this record was summoned by the Senior Resident Magistrate, and asigned to Mr. Mwihava a Resident Magistrate. Although the learned Resident Magistrate's judgment is headed   E "IN THE DISTRICT COURT OF SENGEREMA, at Sengerema and the decree signed by him captioned - IN THE DISTRICT COURT OF MWANZA AT MWANZA, there is no shadow of any   F doubt, that this appeal was heard and ajudicated upon, at Mwanza, in Mwanza District Court. It is at this juncture, that finally the question whether a Resident Magistrate sitting in Mwanza District Court, or call it any district court in Mwanza District has the legal competence to adjudicate over an appeal, for a different district, be in Sengerema, or over a case registered in Sengerema District Court, becomes immediately pertinent.
  G If we pay an obedient visit to the law - see Section 6(1) and 7(1)(c) of the Magistrates Courts Cap 537, now Section 5(1) and 6(1)(c), it is trite law that a court of a Resident Magistrate is duly constituted when held by a Resident Magistrate. But this is no answer to the issue, as in law, the Court of Resident Magistrate per se, has no appellate jurisdiction over matters originating from   H Primary courts, neither as per Magistrates Courts Acts, nor does Section 80 of the Marriage Act 1971, confer such  powers on a Court of a resident Magistrate. It follows that a Resident Magistrate, holding a resident Magistrate's Court, has no appellate jurisdiction, over matters originating from Primary Courts, in the region to which he is assigned.
  I There is an argument, which could be attractive, that, as the term, "District Magistrate" includes a Resident Magistrate, therefore

such magistrate has power to hear appeals from Primary Courts. This argument is not totally  A fallacious, for it all depends on whether or not the said Resident Magistrate is sitting as a District Magistrate, in the District Court, to exercise jurisdiction, within the District in which such District Court is established. In this case, the Resident Magistrate sitting as he did in the District Court of  B Mwanza, established for Mwanza District, could rightly be construed, as having sat therein as a Mwanza District Magistrate, and for the purpose of appeals from Primary Courts, such as Mwanza District Court, has jurisdiction to adjudicate over appeals from Primary Courts established in Mwanza District; and not Sengerema District, as the same Magistrate was not sitting as Sengerema  C District Magistrate. It follows as night follow daylight, that the Resident Magistrate, sitting as a District Magistrate, in Mwanza Court, had no competent jurisdiction to adjudicate over appeals registered in Sengerema District Court, and originating from Primary Courts, established in  D Sengerema District, unless extended jurisdiction has been conferred upon such contiguous District Courts by the Hon. The Chief Justice, and this has not been done.
As the jurisdiction issue does effectively forestall or preempt other grounds of appeal, it would be undesirable, for fear of prejudging the issue involved to entertain them. For want of legal  E jurisdictional competence as manifestly shown above, the judgment and attendant orders, if any, by the resident Magistrate, are hereby declared a nullity. It is hereby ordered that, the proper appeal be heard by a Court of competent jurisdiction - Sengerema District Court. The appeal is allowed with  F costs.
Order Accordingly. G