Rule of Law

Technicalities and Role of

Courts in Administering Justice
By Andrew Miraa

Courts of Law are usually regarded as “Temples” of Justice, temples which act as
forums where disputes are settled with the highest degree of impartiality.

Sadly enough these temples of Justice are now in danger of being contaminated by
paying undue regards to technicalities of procedure.

I should put that in mind considering the decision of the Court of Appeal of Tanzania
as the Highest Court in Land where its decision’s are final and Conclusive, binding all
the subordinate Courts (Namely, the Primary Courts, District/Resident Magistrate
Courts and the High Court).

The Court of Appeal in one of its decisions from which I got pinched , held that , “ in
any application made to this Court , the appellant should state clearly in his
pleadings, under which law the application is made, Sections and subsections if any,
Failure to comply with this , the application will be struck out with costs.” [Hussein
Mgonja V. The Trustees Tanzania Episcopal Conference, CAT Civil Revision No.2. of
2002. (Arusha) Unreported. ]

To my view the position stated above, acts as an obstacle to lay persons in getting
access to Courts for Justice. This has made many applications being struck out as the
said applications did not “properly move the Court to seize its Jurisdiction”.

Most learned friends will remember those Civil Procedure lectures in the Law Schools
that, the First Principle of Pleading is that, “a Party should plead the material facts
and not the Law”. (Mogha’s Law of Pleadings, 14th Ed. at.pg.20) Comparing the Court
of Appeals decisions with this principle of pleading one can submit that , the Court of
Appeal is establishing a “New Principle of pleading” which states that, a party must
not only plead the material facts of the case but the law upon which the case is
based as well. And if he/she does not do so the case will be thrown out.

This is rather interesting since Judges and Magistrates are presumed to know the Law
in respect to the Suit, and are obliged to decide upon a suit according to the law
whether the litigant has stated the applicable laws correctly or not.

S. 59(1) (a) of the Tanzania Law of Evidence Act Cap.6.R.E.2002, states that, “A Court
shall take Judicial Notice of … all the written Laws, rules, regulations ,proclamations,
orders or notices having notice the force of law in any part of the United Republic”.
(Emphasis is mine) The Provision connotes that it is unnecessary for a litigant to state
the laws under which the application is brought for it is taken Judicial of Notice. S.58
of the Tanzania Law of Evidence Act, Cap.6 R.E.2002, further states, “No fact of
which the Court shall take Judicial Notice, need be proved” This shows that the
requirement now imposed by the Court of Appeal is not a statutory one.

Furthermore, Article 107A (2) (e) of the Constitution of the United Republic of
Tanzania, 1977, Cap.2. R.E. 2002 as amended, States “In delivering decisions in
matters of Civil and criminal nature in accordance with the laws, the judiciary shall
comply with the Following rules that is… to dispense justice without being tied up
with technical provisions which may obstruct dispensation of Justice” The emphasis
put here by the Constitution is for Courts to avoid being constrained too much by
legal technicalities and also that rules should not be used to thwart Justice.

Other learned persons could say that, Courts in particular the Higher Courts do in fact
make laws (Judge-made laws), this is an issue which can give rise to an interesting
debate. Time and space does not permit me to engage myself in that debate, Suffice
to say that, there are circumstances where courts do make laws. Circumstances
where there is a “ lacuna” (i.e. a gap) in the existing laws and there is a need for that
gap to be filled up for the purpose of giving effect to the law. Another Circumstance is
when the literal interpretation of the law may lead to absurdity. The Court can
intervene to remove the absurdity. A good example of this is in the case of Julius
Ishengoma Francis Ndyanabo .V. AG.[2001]2.E.A 285.

The Honourable Judges may choose to stand by their decisions. But I personally
believe that the new rule is a departure from the now well established principle of law
recognized by many Jurisdictions in the Commonwealth of Nations. The principle is
that “ the Procedural rules are intended to serve as hand maidens of Justice , not to
defeat it…”.[Iron & Steel Wares ltd.V. C.W. Martyr & Co, (1956)23 .E.A.C.A] that
means, the function of those rules is to facilitate the administration of Justice and not
otherwise.

As far as possible no proceeding in a Court of law should be allowed to be defeated

on mere technicalities. Too technical a construction of the law that leaves no room
for reasonable elasticity of interpretation should therefore be guarded against lest
the very means designed for the furtherance of Justice be used to frustrate it.

Since the new rule does not act as a hand maiden in the administration of Justice, it
should be abandoned and the Courts should be left to do substantive Justice.

Courts should be easily accessible to professionals and lay people alike. Indeed that
is the reason Courts of law have been established by or under the authority of the
Constitution in the first place.

Apr
17

JURISDICTION OF THE PRIMARY

COURT (S)

INTRODUCTION.
Jurisdiction is defined as a power of the court to decide a matter in
controversy and presupposes the existence of a duly constituted court
with control over the subject matter and the parties. 1[1] Or it is an
authority constitutionally conferred upon a court or judge to pronounce
the sentence of the law, or to award the remedies provided by law,
upon a state of facts, proved or admitted.
Or it is a power or control granted to a legal body to administer justice
within the area of responsibility, to hear and determine different
disputes arose within the area of responsibility. For example District
Court has authority within District area.
The courts system in Tanzania involves the Primary Courts, District
Courts/Resident Magistrates’ Courts, High Court and Court of Appeal.
These courts have different powers to hear and determine different
matters on the area of responsibility.
Court jurisdiction is restricted in three main ways; these are
geographical location of the court, subject matter and value of the
subject matter. Through these there are many categories of jurisdiction
which are original jurisdiction, Appellate jurisdiction, concurrent
jurisdiction, pecuniary jurisdiction, extended jurisdiction, review
jurisdiction and revisional jurisdiction (supervisory power).
Today, I am going to explain the jurisdiction of a primary court. A
Primary Court is the lowest court in the courts system. It is
established under Section 3 of the Magistrates’ Courts Act,2[2] which
states that:-
Subsection (1),
“There are hereby established in every district primary courts which
shall, subject to the provisions of any law for the time being in force,
exercise jurisdiction within the respective districts in which they are
established.”

1[1] www.lawkam.org/…/law-dictionary. (17/04/2016)

2[2][Cap. 11 R. E. 2002]
Subsection (2),
“The designation of a primary court shall be the primary court of the
district in which it is established.”
Generally, a Primary court has original jurisdiction on civil and criminal
matters. Under civil matters, the primary court has jurisdiction to all
civil matters where a law applicable is customary law or Islamic law as
provided under Section 18 (1) (a) (i) of the Magistrates’ Courts Act.3[3]
Also in the case of Jacob Mwangoka versus Gurd Amon,4[4] the court
among other things stated that, “the Primary Courts have jurisdiction
in all proceedings of a civil nature where the law applicable is
customary law.” Therefore in this case a customary tort is justifiable to
be held in the primary court.
Furthermore the Act provides the pecuniary jurisdiction of this court. In
here the pecuniary jurisdiction is related to money which address
whether a court of law can try cases and suits of the monetary value or
amount of the case or suit in question. The pecuniary jurisdiction of
primary court is that it covers debts due to the republic of suits not
exceed five million and on any civil debt arising out of contract, if the
value of the subject matter of the suit does not exceed three million
shillings, and in any proceeding by way of counterclaim and set-off
therein of the same nature not exceeding such value except land
matters that deal with the ownership of such piece of land (title). This
means a primary court has no jurisdiction to hear and determine land
matters on ownership of title.
For instance in the case of Asha Mohamed versus Zainab Mohamed,5
[5] the court stated that, “A Primary Court has no jurisdiction to
entertain proceedings relating to immovable property on a piece of
land held on a government lease or right of occupancy.”

3[3] [Cap. 11 R. E. 2002]

4[4][1987] TLR 165
5[5] [1983] TLR 59
However there is rumours that the pecuniary jurisdiction of
primary court is amended but I did not see any piece of Act
that prove the same. Therefore the same section mentioned
above is still prevailing.
Primary court also has jurisdiction in all matrimonial proceedings
relating civil and Christian marriages and all proceedings in respect of
which jurisdiction is conferred on a primary court by any other law, as
provided under section 18 (1) (b) and (d) of the Magistrates’ Courts
Act.6[6]
Under criminal matters, the court has jurisdiction to hear and
determine all disputes as provided in first schedule of the Magistrates’
Courts Act. It is provided under section 18 (1) (C) of the Magistrates’
Courts Act.7[7]
Lastly is that after the primary court hear and determine the disputes
on its limit power and any of the party is aggrieved with such decision,
the law provides for him a right to appeal to the District court. This
right is explained when a magistrate is completed to pronounce
sentence. It is provided under section 20 of the Magistrates’ Courts
Act,8[8]
However on proceedings, a primary court magistrate has to seat with
not less than two assessors and their absence is fatal and it can
invalidate the whole proceedings and decision. So, a primary court
magistrate has to adhere to section 7 of the Magistrates’ Courts Act.9
[9]
Also there are many cases decided by the superior courts on the
importance of assessors in a primary court. I can discuss one of them.
The first case is a case of Mariam Ally Ponda versus Kherry Kissinger

6[6] [Cap. 11 R. E. 2002].

7[7] [Cap. 11 R. E. 2002]
8[8] [Cap. 11 R. E. 2002]
9[9] [Cap. 11 R. E. 2002]
Hassan,10[10] in this case among other things, the court held that,
“assessors in the primary court have equivalent and complementary
powers to those of the magistrate”.
Therefore from the above mentioned case, the assessors are very
importance in the primary court proceedings whether in civil matters
or in criminal matters. From here let see another case of Alexanda
Killian versus Linus Kinunda,11[11] whereby the court held that, “As a
matter of practice it is irregular to change assessors during trial”. So, it
is prohibited even to change assessors during trial but it can be
allowed if no failure of justice has been occasioned.
Conclusively is that apart from the jurisdiction of primary court, the
primary court magistrate is governed with Magistrates’ Courts Act,
Primary Courts Criminal Procedure Code, Primary Courts Civil
Procedure Rules and Rules of evidence in Primary Courts. Therefore,
the above explaination is just little illustration on Primary court
jurisdiction but it covers all angles of jurisdiction of primary court.

Imechapishwa 17th April 2016 na Ayubu Shellimoh

0

Ongeza maoni

BAMU SHERIA

 Kawaida
 Kadi ya kupindua
 Jarida
 Picha mpangilio
 Upau wa kando

10[10] [1983] TLR 223

11[11] [1988] TLR 71
 Picha ya haraka
 Slaidi ya muda

1.

Dec

11

Jurisdiction and procedure in a

primary court

INTRODUCTION

Jurisdiction of Primary Court (s).

Normally Jurisdiction is a power of the court to entertain

disputes. This power is conferred by laws. These laws are
Constitution of United Republic of Tanzania, Magistrates’ Courts
Act and other written laws which give the court authority to hear
and determine different disputes arose within the area of
responsibility. For instance District Court has power to hear and
determine different disputes arose within District area.

In Tanzania, those disputes are entertained in normal courts and

other bodies which were given that power to hear and
determined different disputes. Normal courts include the Primary
Courts, District Courts/Resident Magistrates’ Courts, High Court
and Court of Appeal. These courts have different powers to hear
and determine different matters on the area of responsibility.
 Starting with Primary Court (s), it is the lowest court in the courts
system. It is established under Section 3 of the Magistrates’
Courts Act,12[1] which states that:-

Subsection (1),

“There are hereby established in every district primary courts

which shall, subject to the provisions of any law for the time
being in force, exercise jurisdiction within the respective districts
in which they are established.”

Andrew Miraa, LL.B. Tumaini University, 2008.

andrewmiraa@gmail.com

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