MUHARAMI MGENI MZEE v ABDULHALIM ALI KHATIB AND ANOTHER 1996 TLR 299 (HC)

 MUHARAMI MGENI MZEE v ABDULHALIM ALI KHATIB AND ANOTHER 1996 TLR 299 (HC)

Court High Court of Zanzibar - Vuga

Judge Kannonyele J

B

Civil Appeal No. 1 of 1996

29 March 1996

Flynote

Magistrates' Courts - Jurisdiction - Jurisdiction of Resident Magistrate to hear and

determine C case filed in a district court - Magistrates' Courts Act 1985 (Z)

-Headnote

A suit was instituted in the district court and dragged on for some months. Before it

was determined the presiding district magistrate was promoted to resident magistrate.

But D he proceeded hearing it and finally gave judgment, and ordered attachment of

the appellant's property in execution of the judgment. The appellant filed an

application objecting to the attachment of his motor vehicle in execution of the

judgment. The application was dismissed by the same resident magistrate, formerly

district magistrate. On appeal, the High Court raised the question of jurisdictional

irregularity by the trial court(s): E

Held:

(i) Unlike Mainland Tanzania where a district magistrate and a resident

magistrate at the same station normally have concurrent jurisdiction in respect of

cases filed in the District Court at that station, in Zanzibar the two courts are

different and distinct; F

(ii) Besides the differences in their original jurisdiction, district courts and

district magistrates have appellate and revisional jurisdiction over primary courts,

while resident magistrates and their courts have similar jurisdiction over matters from

the district courts;

(iii) A resident magistrate has no original jurisdiction over cases instituted

and registered in the district courts; G

(iv) The presiding magistrate in this case had no jurisdiction to proceed to

hearing the case after being promoted to resident magistrate, and all proceedings after

the date of promotion are a nullity for lack of jurisdiction. H

Case Information

Order accordingly.

No cases referred to.

Editorial Note: As the Magistrates' Courts Act, 1985, of Zanzibar does not designate

any magistrates as Resident Magistrates, in his references to `resident magistrate' the

I Honourable Judge must have had in mind `regional magistrate'.

1996 TLR p300

[zJDz]Judgment

Kannonyele, J: A

On 28 October 1993 one Abdulhalim Ali Khatib filed a suit against Jafar Ibrahim

Abdalla claiming for Shs 800,000/= with interest plus costs of the suit. He also claimed

for unliquidated damages connected with the claimed amount. The suit, civil case No

60 of 1993 was instituted in the district court of Zanzibar at Vuga. B

On 1 November 1993 one Mr Haroub Sh Pandu, learned District Magistrate

mentioned the suit for the first time, with the parties in absentia. He ordered the

parties to attend on 15 November 1993 for another mention of the suit. Mr Pandu,

District Magistrate C continued to mention the suit up to 24 February 1994 with

three more mentions in between. On 2 March 1994 the case was transferred to Adam

S Abdulla, another learned District Magistrate before whom consent judgment was

entered on 21 June 1994 in respect of Shs 700,000/= out of the total amount claimed.

That notwithstanding, D the case dragged on up to 9 February 1995 before Adam S

Abdullah (then still as a District Magistrate).

Mr Adam S Abdullah was promoted Resident Magistrate sometime between 9

February 1995 and 9 March 1995. Despite this new development, however, Mr Adam

S Abdullah E continued to deal with the case on the latter date and beyond, now as

Resident Magistrate. However, no formal transfer was made to transfer the case from

the district court to the court of a Resident Magistrate. (Unfortunately there is no

provision in the Magistrate's Court Act (No 6 of 1985) providing for the transfer of

cases from the district F or any other court to any of the others as there is (s 33) in

respect of cases instituted in a primary court).

On 31 August 1995 Mr Adam S Abdullah pronounced ex-parte judgment against the

defendant in respect of Shs 100,000/= whose liability the defendant had contested. On

4 G September 1995 Mr S Abdullah Adam, the Resident Magistrate ordered for the

attachment of the defendant's property in satisfaction of the total decretal amount

which had now high-rocketed to some Shs 2,463,150/=. On 8 November 1995 another

Muharami Mgeni Mzee filed a Miscellaneous Application No 22 of 1995 of the

Resident H Magistrate's Court at Vuga in Zanzibar which was a carry forward of the

proceedings in Civil Case No 60 of 1993 of the district court of Zanzibar at Vuga

(supra). The parties, namely the plaintiff and defendant in District Court Civil Case

No 60 of 1993 were made co-respondents in the Misc Application No 22 of 1995 of

the Resident Magistrate's Court I at Vuga, Zanzibar filed by Muharami Mgeni.

Muharami was objecting to the attachment or seizure of

1996 TLR p301

KANNONYELE J

his property (a motor vehicle) in execution of the decree in Civil Case No 60 of 1993

of A the district Court of Zanzibar (supra). Adam S Abdullah, the Resident

Magistrate heard and dismissed Muharami's application on 17 November 1995. This

appeal is against the ruling of dismissal dated 17 November 1995 in RM's Misc

Application No 22 of 1995 B (supra). At the hearing of the appeal on 22 March 1996,

I drew attention of both counsel to the apparent jurisdictional irregularities. Both

counsel then agreed not to argue the appeal but rather left it to court to deal with the

matter in a manner as to it deemed proper. C

Reserving my reasons for a more opportune time, I this morning nullified and

quashed for illegality all the proceedings as they were before the Resident Magistrate

with effect from 9 March 1995. I now give those reasons.

Unlike the law on the mainland Tanzania where the term `district magistrate'

includes a D resident magistrate (s 2 Act 2 of 1984), the situation in Zanzibar is

different. So that whereas a district magistrate and a resident magistrate at the same

station on the mainland normally have concurrent jurisdiction in respect of all cases

filed in the district court at the station, the position is different here in Zanzibar. Here

a district court and E magistrate are respectively quite different and distinct from

those of a resident magistrate's court, as the case may be. In Zanzibar, a district

magistrate is one appointed under s 10 of the Magistrate's Court Act 6 of 1985 and his

jurisdiction is conferred under ss 11 and 13 whereas general powers are provided

under ss 12 and 14 F of the Act (supra). These provisions are quite different and

distinct from those under s 19 on the one hand and ss 20, 21, 22, 23 and 24 which

respectively provide for the appointment, jurisdiction and general powers of a

resident magistrate on the other. Apart from the respective distinct original

jurisdictions of these magistrates and/or their courts, G separate appellate, revisional

and supervisory jurisdiction are conferred on them respectively under ss 12, 13, 16

and 17 on the one hand and ss 24 and 25 on the other. So that whereas district courts

and/or magistrates are conferred with appellate and revisional jurisdictions over cases

from primary courts, resident magistrates and their H courts are vested with such

powers (appellate and revisional) in respect of those cases from district courts. By

these provisions therefore, cases originating from primary courts are only appealable

to the district court and those from the district courts to the courts of resident

magistrates. I

On the other hand, only cases from resident magistrates and their

1996 TLR p302

KANNONYELE J

courts are directly appealable to the High Court whereas those from district courts

can A only find their way to the High Court by way of second appeal thereto. This

sufficiently accounts for the distinct and separate jurisdictions of district courts on the

one hand and the resident magistrate's courts on the other. Briefly, ours in Zanzibar is

a four-tier B system of courts from primary courts to the High Court whereas on the

mainland Tanzania, it is a three-tier system of courts from primary courts to the High

Court; it is a three-tier system by merging together district and resident magistrates'

courts whose appeals both go directly to the High Court which is different from the

situation in C Zanzibar. It is hoped that thenceforth magistrates in our jurisdiction

will appreciate these jurisdictional distinctions particularly between district courts

and magistrates on the one hand and resident magistrates and/or courts on the other.

Coming back to the instant case, what emerges from the foregoing is that resident D

magistrates have no original jurisdiction over cases registered and instituted in the

district courts. That means that if a district magistrate is promoted resident magistrate,

he or she will cease to exercise original jurisdiction over those cases instituted in the

district court even if he does not physically move from the station. In such situations,

E such magistrates should only and within a reasonably short time after the

promotion finish only those cases which have reached advanced stages, say only

awaiting judgment and proximately like cases and not otherwise. Such magistrates

should not unduly and unnecessarily too long cling on to cases over whose

jurisdiction they have F since been divested by way of promotion. And when they

cling on those cases which it is deemed necessary to do so, they should in such cases

only handle the cases retaining their old titles. They should not in these cases assume

their new titles to which G they have just been promoted because as such newly

promoted magistrates they do not retain with them original jurisdiction over the

lower court from which they have been elevated. Just as much as it would be odd for

a newly promoted district magistrate to cling on his/her erstwhile primary court cases

or a high court judge to cling on his/her H erstwhile subordinate court cases, so it

should be for a newly promoted resident magistrate. He should fight shy to cling on

his/her erstwhile district court cases.

All proceedings connected with this case but conducted before Adam the Resident

Magistrate with effect from 9 March 1995 to end were all but a nullity and therefore

of no I effect on account of illegality for want of jurisdiction. I quashed all such

proceedings

1996 TLR p303

and declared the emergent orders therefrom as non-consequential. Instead the record

is A remitted to the district to proceed afresh before another district magistrate who

will proceed from where the matter had reached on 9 February 1995 before Mr Adam

S Abdullah was promoted resident magistrate. It is so ordered. B

1996 TLR p303

C