Answered by: Bashiru saidy
College: Institute of judicial administration (IJA)
Programme: Diploma in Laws
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 familiarizing 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 decision[2].
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 & MUNGAI[4] 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.
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 Act[5] 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.
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/=Tsh[6]. The Resident Magistrate having concurrent jurisdiction with District court could entertain matters of the same pecuniary value. It should be known that before the recent statutory development, the court could try any civil matter of any subject matter. And also the district court had exclusive jurisdiction in labour matters.
However, recently there has been statutory development which has affected the ordinary jurisdiction of courts in entertaining civil matters; for example, there have been established division in the High Court which have exclusive jurisdiction over land matters, another division vested with exclusive jurisdiction over labour matters and another division dealing with commercial matters. However, the main division of the high court has retained unlimited jurisdiction over other matters except those which the divisions have been given exclusive jurisdiction i.e. Land, labour and commercial divisions.
Also the exclusive jurisdiction of the district court to deal with labour matters has been taken away and it is now vested in the high court labour division by virtue of section 50 of the labour Institutions Act. This division has been granted exclusive jurisdiction over labour matters.
The jurisdiction of district court in respect of land matters has been also ousted under the provisions of section 3 of the Court (Land Dispute Settlement) Act which has established the high court division, the District land and housing tribunal and ward tribunal and village land council which has been vested with exclusive jurisdiction over land matters.
The pecuniary jurisdiction of the district court also has been specifically granted to the court by virtue of the Written Laws (Miscellaneous Amendments) Act 2004.under the law which amends the Magistrates Courts Act Section 40 adding that the court will deal with commercial matters and also that its jurisdiction on such matters in respect recovery of possession of immovable property where the value does not exceed fifty million and in respect of subject matter that can be estimated at money value the amount should not exceed thirty million.
Formally under section 18 (2) of the Magistrate Court Act the chief justice had power by order published in the government gazette to make rules which could give the primary court jurisdiction on the land matters especially on the administration of the estate of the deceased person provided that the deceased person at a time of death had a fixed place of a body within the area of the jurisdiction of the court and the law applicable in the administration or distribution to the estate is customary or Islamic law. The chief justice enacted these rules by virtue of GN No. 320 of 1964. So having the hierarchy of the courts on land matters from ward tribunals (special courts) the jurisdiction formally vested on the primary court is bared by this hierarchy of land courts at the matters would be directed towards these courts.
2.3 THE RECENT STATUTORY DEVELOPMENT AND CONCEPT OF JURISDICTION
The overview of the recent statutory development and its impact on the concept of jurisdiction is two folds. To determine whether the statutory development in Tanzania has thrown the concept of jurisdiction into disarray or not one has to look on the advantage and disadvantages of the creation of the special divisions of the courts.
2.3.1 Advantages of the noted statutory developments.
The statutory development has helped to provide specific courts to deal with specific cases arising from specific discipline for instance the land division which have exclusive jurisdiction in land matters. Thus the specialization of the courts in different disciplines shows the picture of the well organized court system.
Also this development has facilitated the disposition of cases easily this is because before the introduction of these divisions all cases were confined in the general or ordinary jurisdiction of the courts. For instance the district courts apart from having exclusive jurisdiction on the labour matters such jurisdiction has been vested into the labour division hence reduce the burden to the district courts of dealing with numerous cases. This in fact has facilitated disposition of cases.
2.3.2 Disadvantages of the noted statutory developments
It is well settled law that the court of appeal is not established by the Act of the parliament however following the introduction of the Courts (Land Dispute Settlement) Act recognises the court of appeal as the court with jurisdiction over land matters. This recognition by section 3 (2) (e) of the Act brings inconsistence because as far as the jurisdiction of the courts because the court of appeal does not have original jurisdiction. What was supposed to be the concern of this provision was to deal with the courts of original jurisdiction. Whereas this section has lead into conflict as the court of appeal, the court of appeal has jurisdiction as provided for by the Appellate Jurisdiction Act, 1979.
In addition the establishment of the division of high court are acting as the bar towards the access to justice, for instance the high court commercial division has only sub registry in Arusha and main registry in Dar es Salaam. Also the high court land division has its establishment only in Dar es Salaam therefore the cases of land matters in the other regions have to wait the circuit movement of the judges from Dar es salaam which acts as the delay as it is not easy for them to circulate in the country at appropriate time.
The exclusive jurisdiction vested in the general division of the High Court for instance exclusive jurisdiction on bankruptcy, probate matters in exclusion of small estate, company especial in insolvency and winding up and admiralty plays as disadvantage as it leaves only one step for the appeal by the one having suit to be dealt by this court.
The recent development of statute has a disadvantage in that, it has witnessed the establishment of several courts with exclusive jurisdiction this has caused confusion to people as they fail to know exactly that as to which court they should institute their case, this may result into dismissal of cases. This is a result of people’s ignorance in law and changes therein.
Further, another disadvantage due to the development of the commercial court it has been too cost full for people to file suits in commercial courts hence deny peoples rights as they cannot afford such cost to institute their cases. On top of that the Commercial Division of the High Court as it has concurrent jurisdiction with other divisions of the High Court it appears that case which were supposed to be instituted in this division of the High Court can either be instituted in the Land Division[7] or in the General Division of the High Court.
There is another problem as far as the jurisdiction of the courts as it appears apparently that under section 40 (2) (a) and (b) of the Magistrate Court Act that the District court has pecuniary jurisdiction over immovable property as it is 150,000,000 and 100,000,000 for the other properties where then subject matter is capable of being estimated at money value.[8]From the provisions of this Act the District Court is having the jurisdiction on the immovable and other properties as given by these laws.
At the same time the District Court has jurisdiction over the commercial matters where in section 2 of the Magistrate court there the inclusion of the term Commercial Case[9] whereby the court has jurisdiction on the commercial cases in which the district court has jurisdiction on proceeding of immovable property not exceeding fifty million, and proceeding in which the value can be estimated at a money of the subject matter not exceeding thirty million. The problem with these laws is that it appears difficult on the part of jurisdiction because people found it difficult as to which court to institute the suit whether to be instituted in the district court or the land division as the law deals with the immovable property, or the part of the district court with the commercial division.
3.0 CONCLUSION
To conclude, generally the law of Tanzania is the law which has not reached the stage of its development in which the community can come up with the conclusion that there is the settled law in Tanzania. Following the present court system it is evidenced that even the jurisdiction vested to some courts by either the statutes establishing them or other statutes have experienced either the express bar of jurisdiction or the bar of such jurisdiction by general implication. This is because the adopted statutes from the common law are under transformation to suit the situation of our local circumstances.
The present statutory development therefore apart from facilitating the attainment of justice in the society its impact has affected the existed jurisdiction of the courts that in a large part of the country due to ignorance of law it has become difficult for the society to comprehend with the new enactments as far as the jurisdiction of the courts is concerned. All in all the statutory development in Tanzania is aimed not to outer jurisdiction of the courts but the main purpose is to facilitate the attainment of justice by adopting the system of specialization.
REFERENCES
1. Written Laws (Miscellaneous Amendment) Act No 3 of 2002
2. Civil Procedure,5th Ed, p 33
3. www.ilo.org
Citations
[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.
[5] Cap 358 R.E 2002
[6] This is provided by the Written Laws (Miscellaneous Amendment) Act No 3 of 2002
[7] The cases involving securities like mortgages and other cases which are involving commercial activities but they involve securities like land
[8] See the Written Laws (Miscellaneous Amendments) Act No 3 of 2002
[9] In the Written Laws (Miscellaneous Amendment) Act No 4 of 2004, commercial means a civil case involving a matter considered to be of commercial significance including but not limited to [See those instances provided under roman I to roman xi)
