Arusha General Store v. Mawji (1) Civ. App. 16-A-68, 8/2/69, Platt J.

Arusha General Store v. Mawji (1) Civ. App. 16-A-68, 8/2/69, Platt J.

This is an appeal against judgment and decree of the District Court of Arusha presided over by the Senior Resident Magistrate. The court had granted possession to the Respondent/Plaintiff of certain premises. Seven grounds of appeal were presented in the memorandum of appeal but the court entertained argument only relating to the allegation that the decree passed by the District Court was null and void having been passed by a court of no competent jurisdiction. The first question in issue is whether the want of jurisdiction can be raised o appeal if it was not raised at the time of trial. The second issue is whether in fact there was want of jurisdiction. The plaint had been filed and accepted in the District Court of Arusha. A summons was issued for disposal of the suit signed by the Senior Resident Magistrate and stayed with the District Court’s Stamp. The appellant defended the action and raised no objection on the issue of jurisdiction. The Senior Resident Magistrate issued the decree which was also stamped with the stamp of the court. All parties assumed the court to seised of the matter.

Held: (1) “Unfortunately, the Rent Restriction ordinance which empowers Civil Courts to entertain proceedings such as these, by virtue of the amending Act No. 57 of 1966, provides that proceedings shall be taken in a court of a Resident Magistrate of competent jurisdiction – (See section 2). “A court of Resident Magistrate” is a term which springs from the Magistrates Courts Act 1963, Cap. 537. By section 6 of that Act, the Chief Justice is empowered by order in the Gazette to establish courts of a Resident Magistrate which shall, subject to the provisions of any law for the time being in force, exercise jurisdiction in such areas as is specified in such order, provided that the designation of a court of a Resident Magistrate shall be that specified in the order establishing the same. In contrast, District Courts were directly established by section 5 of the Magistrates Court Act in every district and, subject to the provisions of any law for the time being in force, were empowered to exercise jurisdiction which the district in which they were established. In pursuance of section 6 of the act by Government Notice No. 484 of 1964, the court of a Resident Magistrate was established at Arusha having jurisdiction in Arusha Region ….. “By section 7, a District Court was provided as being duly constituted when held by a single magistrate being the District Magistrate while in the case of a Court of a Resident Magistrate by a Resident Magistrate. However, by section 2, it was provided that he description ‘District Magistrate’ included a Resident Magistrate. Therefore a Resident Magistrate was empowered to sit either in a District Court or in a court of a Resident Magistrate. Moreover, apart from the territorial limits already noticed above, the jurisdiction of a Resident Magistrate sitting in the District Court was similar to the jurisdiction that he would exercise in the court of a Resident Magistrate. Nevertheless, registers were required to be kept and separate seals or stamps were provided. (See section 10

and 11 of the Act). It follows then that the two courts are constitutionally different. The Act establishing these courts came into force on the 1st July, 1964, and the act amending the Rent Restriction Ordinance came into force on the 1st January, 1967. It an only be understood therefore that when the latter act made provisions for proceedings to be instituted in a court of a Resident Magistrate, that the legislature intended to restrict such proceedings to that court and excluded the District Court ….. there is no doubt therefore that these two court are separate entities even though one and the same person may preside over them. It is not disputed that had the suit been instituted in the Court of a Resident Magistrate at Arusha that learned Senior Resident Magistrate would have been otherwise perfectly entitled to entertain it. The fact that he did not sit in the Court of a Resident Magistrate is aid by the applicant to indicate an inherent want of jurisdiction, while the Respondent urges that the institution of the suit in the district court rather than the Court of a Resident Magistrate was merely a curable irregularity not really affecting the jurisdiction of the particular magistrate himself. I should perhaps notice here that the court seised of matters under the Rent Restriction Ordinance is especially granted wider powers than it would ordinarily have in its original jurisdiction. (See section 11A (1)). It may well be that a court of a Resident Magistrate was therefore chosen to exercise such powers rather than the District Court. The presiding Resident Magistrate has wider powers than he would normally exercise in either the district court or Court of a Resident Magistrate. It seems to me that this aspect underlines the necessity for instituting the suit in the proper court. It is not a question of the presiding magistrate having any particular personal jurisdiction. He only has jurisdiction as the properly appointed presiding judicial officer of the court of a Resident Magistrate exercising the powers granted to the court under section 11. he cannot exercise these wider powers, necessary to the fulfillment of the  ordinance, as the presiding official of a district Court, any more than he could exercise the wider territorial jurisdiction relevant to his position in the court of a Resident Magistrate if he were sitting in the District court.” (2) It sis necessary to decide whether the want of jurisdiction which has been demonstrated above, can be agitated for the first time on this appeal. As to the rules governing this appeal, I take it that by virtue of section 11D of the Rent Restriction Ordinance, the provisions of the civil Procedure Code 1966 relating to appeals from orders and decrees in civil suits, apply. I apprehend the general rule to be that the judgment of a court without jurisdiction is a nullity and that the parties cannot by consent confer upon a court the necessary jurisdiction. It must be however a want of jurisdiction apparent from the face of he decree. That is the position here. If such a want of jurisdiction causes the decree to be a nullity, objection may generally be taken on appeal for the first time. But section 19 of the code provides an exception to some extent. It provides: “No objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.”

It is clear that if all that has happened in the instant case is that the place of suing was incorrect, and then as no objection was taken at any time of the trial, this court cannot entertain the appeal on this ground. Section 19 falls within a section of the Code providing for the proper place to institute suits. For instance, there is provision for a suit to be instituted, in the lowest grade competent to try it; where the subject matter is situate; where the defendants reside, or he cause of action arose, and for he transfer of cases from one court to another. In these cases if the suit is brought in the wrong court, section 19 provides that unless objection is taken, the matter cannot be raised on appeal. But in the instant case, I am not concerned with matters of that sort. I am concerned with a case where the court before which the matter was tried had no jurisdiction at all by law to entertain the suit, though another court which could have been presided over by the same magistrate would have been entitled to entertain it. The distinction was said to amount to this whether there was inherent want of jurisdiction or merely an irregular exercise or assumption of jurisdiction. The second issue posed above then is involved in the decision of the first.

            Both sides referred to Mulla’s explanation of the problem in his Commentary to section 21 of the Indian Code of Civil Procedure (9th Ed. Pp. 112 and 113). That section is in identical terms to section 19 of the Code of 1966. The Commentary sets out  a number of Privy Council and other decisions which I have, with respect, found instructive, in particular Ledgard v. Bull (1887) 13 I.A. 134 ….. Both sides in the instant case claimed support from Ledgard’s case. The Respondent’s argument was that as the learned Senior Resident Magistrate was personally competent to try the case in a court of the Resident Magistrate, therefore it was a curable procedural irregularity, which could not possibly have caused any failure of justice. On the practical side of the matter, I should express some sympathy with the argument. In that sense it might be said that he matter was rather a question of which cap the learned Magistrate asked to wear. But that was not the position in Ledgard v. Bull. There the District court was properly constituted to hear the case. It was only a question of how the case was brought before it. Here the district court could not hear the case at all, the legislature not having empowered it to entertain such suits. It is misleading I my opinion to say that the learned Senior Resident Magistrate was competent to hear the suit. He was not competent when sitting in the District court. It was not just a matter of choosing the right court according to the rules of the Civil Procedure Code. it was a matter of choosing between one court empowered to hear the suit by the terms of the Rent Restriction Ordinance and one which was not. In my view therefore section 19 was not available to cure the defect, as the defect went to the inherent lack of jurisdiction by the District court. It follows then that the matter was properly raised on appeal and that the decree was a nullity. (3) Appeal allowed and decree set aside.