Nyakioze v. Sofia (PC) Civ. App. 89-D-71; 10/9/71; Onyiuke J.

Nyakioze v. Sofia (PC) Civ. App. 89-D-71; 10/9/71; Onyiuke J.

The appellant and respondent were married under the Islamic Law and lived together as husband and wife for seven years. They were later divorced. The dispute concerned the ownership of a house and a cupboard which the respondent alleged the appellant gave her as a gift during the marriage. The respondent instituted proceedings in the primary court of Magomeni district claiming the possession of the house and cupboard. The plot of land on which the house was built was held in the name of the respondent under a Right of Occupancy granted under the Land Ordinance, from year of year. When the plot was first acquired, there was a small hut on it which the appellant demolished and erected the house the subject matter of this case. The respondent after the erection of this house continued to pay the site rent. The Primary Court found as a fact that the appellant intended that the house and cupboard should belong to the respondent and the Court gave judgment for the respondent and ordered the appellant to surrender the house and the cupboard to her. In the District Court, Dar es Salaam, it was held that the Primary Court lacked jurisdiction to deal with the house claimed as its value was above the pecuniary jurisdiction of the primary court. The magistrate up-held the judgment of the primary court in regard to the recovery of the cupboard, but then went on to dismiss the appeal.

            Held: (1) “I have first to consider whether the learned magistrate was right in law to hold that the primary court lacked pecuniary jurisdiction to deal with the house claim. The question is to what extent the civil jurisdiction of a primary court is restricted to amount or value of the subject matter. Section 14(1) of the Magistrates’ Act which confers jurisdiction on primary courts provides as follows:- (1) A primary court shall have and exercise jurisdiction – (a) in all proceedings of a civil nature  (i) where the law applicable is customary law or Islamic Law: Provided that no primary court shall have jurisdiction in any proceedings – (A) affecting the title to or any interest in land registered under the Land Registration Ordinance: or (B) in which Islamic law is applicable by virtue of the provisions of the Marriage, Divorce and Succession (non Christian Asiatics) Ordinance; (ii) for the recovery of civil debts, rent or interest due to the Republic, the Government or any municipal, town or district council, under any judgment, written law (unless jurisdiction therein is expressly conferred on a court or courts other than a primary court), right of occupancy, lease, sub-lease or contract, if the value of the subject matter of the suit does not exceed two thousand shillings, and any proceedings by way of counterclaim and set off therein of the same nature and not exceeding such value …………[His lordship referred to Section 15(1) of the Magistrate’ Courts Act and then to Clause (3) (1) of the said Fourth Schedule which provides inter alia “A primary court in proceedings of civil nature, may (a) award any amount claimed.” He continued:] “It if my view that except in cases falling under section (14) (1) (a) (ii) and (iii) of the Magistrates’ Courts act the civil jurisdiction of the primary courts is not  limited to amount or value of the subject matter or to put it in another way the pecuniary jurisdiction of primary courts is unlimited. If, for example a case falls under section 14(1) (a) (i) of the Magistrates’ Courts act, that is to say proceedings of a civil nature where the law applicable is customary law or Islamic law, the civil jurisdiction of a primary court is not restricted either to amount or value of the subject matter. The fact tat in this case the value of the house was assessed at Shs. 7,000/= does not oust the jurisdiction of the primary court provided it has the competence in other respects to try the case.” (2) “Mr. Raithatha, learned counsel for the appellant [contended] that 14(1) (a) and s. 57 of the Magistrates’ Courts Act, was to confer exclusive jurisdiction on primary courts in respect of interests in land held under customary law but to deprive them of jurisdiction in respect of matters relating to title or interest in land obtained under the Land Ordinance, Cap. 113 or registered under the Land Registration Ordinance Cap. 334. Section 57 of the Magistrates’ Courts Act reads as follows:- “(1) Subject to the provisions of any law for the time being in force, where jurisdiction in respect of the same proceedings is conferred on different courts, each court shall have a concurrent jurisdiction therein: Provided that no civil proceedings in respect of marriage, guardianship or 

Inheritance under customary law, or the incidents thereof and no civil proceedings in respect of immovable property, other than proceedings relating to land held for a Government Lease or a right of occupancy granted under the Land Ordinance or proceedings under sections 22 or 223 of the Land Ordinance, shall be commenced in any court other than a primary court unless the Republic or the President is a party thereto or unless the High Court gives leave for such proceedings to be commenced in some other court.” (Underlining supplied). Section 57 of the Magistrates’ Courts act appears to prescribe the Primary Court as the proper Court in which certain proceedings are to be initially instituted in cases where different courts have concurrent jurisdiction ………… Mr. Raithatha’s argument involves a consideration of the effect to be given to the Proviso (A) to section 14(1) (a) of the Magistrates’ Courts Act ………… It is my view that the Proviso ousts the jurisdiction of a primary court in a case where but for the proviso it would have had jurisdiction under section 14(1) (a) (i). the Primary Court has jurisdiction to entertain all proceedings of a civil nature where the law applicable is Customary or Islamic law. But for the Proviso under consideration a primary court would have had jurisdiction to entertain proceedings involving title to or interest in any land as long as the law applicable to the dispute is customary law or Islamic law. Take the present case as an example, the plaintiff/respondent is contending that the house was a gift to her from her husband during the marriage that was contacted under the Islamic Law and is now claiming that under that law and possibly under customary law also she is entitled to keep the property. The primary court surely has jurisdiction to try the case and it would not have been relevant whether the land on which the house was built was held under customary law or was held under a grant obtained under the Land Ordinance or was registered under the Land Registration Ordinance. What confers jurisdiction on the Primary Court is he fact that the law applicable to the dispute is customary law or Islamic law. The effect of the Proviso is to oust the jurisdiction of primary court, which it would otherwise have had, where the land involved in the proceedings has been registered under the Land involved in the proceedings has been registered under the Land Registration Ordinance cap. 334……………..There can be no justification in principle for extending the Proviso to cover all grants made under the Land Ordinance Cap. 113 unless it is assured that the Land Ordinance and the Land Registration Ordinance Cap. 334 necessarily cover the same grounds which in my view is no the case.” (3) “S. 2 of the Land Ordinance defines a right of occupancy as a title to the use and occupation of land and included a title of a Native or Native community lawfully using or occupying land in accordance with Native Law and customs. It appears therefore that a certificate of occupancy can be issued to a person whose title to the use and occupation of land is in accordance with Native Law and Customary. If the right of occupancy held under customary law if for a term of over 5 years, the certificate of occupancy in respect thereof must be registered under section 27 of the Land Registration Ordinance (Cap. 334). Conversely if the right of occupancy is from year to year the certificate thereof is not registerable under the Land Registration Ordinance whether it is held under customary law or obtained under s. 6 of the Land Ordinance. There is no reason why a primary court should not entertain proceedings

relating to such rights of occupancy whether or not they are obtained under the Land Ordinance provided that the law applicable to the dispute thereto is either customary or Islamic law. There is good reason for removing titles or interests registered under the Land Registration Ordinance from the purview of customary courts. S. 4(2) of that ordinance requires a LAND REGISTER to be maintained for the registration of the title to land in Tanganyika and the recording of dispositions, transmissions and in cumbrances of and over registered land. The Ordinance specified how and by what courts any dispute in regard to matters covered by it (the ordinance) shall be dealt with.” (4) “[I] am of the view, and I accordingly hold, that since this claim relates to a house erected on land held under a grant of a right of occupancy from year to year the primary court has jurisdiction to deal with it. The claim involves a consideration of the rights, of plaintiff/respondent to a house given to her by her husband to whom she was married under Islamic Law and the law applicable to this case is customary law and/or Islamic Law.” (5) “Mr. Raithatha further argued that the primary court had no jurisdiction to entertain this case since it was a claim for recovery of possession and therefore comes within the purview of S. 11(A) of the Rents Restriction Act (Cap. 479). He cited the case of Bahadur Mandani v. H. H. Agakhan Dar es Salaam Civil Appeal NO. 29 of 1968 (Mustafa J.) for the proposition that a claim for the recovery of possession from a trespasser comes within the Rents Restriction Act. The substance of the claim I this case is the ownership of the house in dispute. It does not deal solely with passion. The question for determination in this case is whether the house belongs to the appellant or to the respondent. That was the issue which the primary court decided in the respondent’s favour and to give effect to its decision ordered the appellant to surrender the house to the respondent.” (6) “I uphold the judgment of the Primary Court which declared the respondent the owner thereof and ordered the appellant to surrender them to her. I will however remit the question relating to the refund of the expenses incurred by the appellant to the District Court for determination. The District Court will consider as far as possible the expenses reasonably incurred by the appellant in erecting the now house. It is common ground that the value of the hut was Shs. 400/=. Having determined the amount that is due to the appellant the district Court would then consider the question or repayment by appellant by installments having regard to all the circumstances of the case.” (7) Appeal relating to the ownership and possession of the House and Cupboard dismissed. Case remitted to the District Court to determine the expenses reasonably incurred by the appellant in constructing the house, the amount for which the respondent should be credited as representing her contribution respondent should be created as representing her contribution to building the house and the terms of repayment of the balance due to the appellant.