SUSANA SHIJA v PAULINUS KAZULUNGA 1984 TLR 58 (HC)

SUSANA SHIJA v PAULINUS KAZULUNGA 1984 TLR 58 (HC)

Court High Court of Tanzania - Mwanza

Judge Katiti J

April 30, 1985

CIVIL APPEAL 4 OF 1984 F

Flynote

Family law - Division of Matrimonial assets in the nature of matrimonial proceedings

- Law of Marriage Act, 1971 - Part VI.

Civil Practice and Procedure - Matrimonial Proceedings - Appeal from Primary Court

to District Court - Whether any District Court has jurisdiction to hear appeal from

Primary Court - Law of Marriage Act, 1971 G s.80 as amended by Act No. 15 of

1980.

-Headnote

The appellant in this case had been granted an ex-parte judgment by the Sengerema

Urban Primary Court for a 50% share in a matrimonial house and the respondent's

application to have the ex-parte H judgment set aside was unsuccessful, and he filed

an appeal in Sengerema District Court. For reasons which are unknown the Senior

Resident Magistrate in Mwanza ordered the appeal to be heard in Mwanza by a

particular Resident Magistrate who did hear and allow the appeal. The I appellant is

now challenging that decision.

1984 TLR p59

KATITI J

A Held: (i) Under section 80 of the Law of Marriage Act, 1971 as amended by Act

No. 15 of 1980 an aggrieved party in any matrimonial proceedings commenced in a

Primary Court is allowed to appeal from that court, first, to the District Court;

(ii) under section 16 of the Magistrates' Courts Act, 1984 any party, aggrieved

by an order, or B decision of the Primary Court is allowed to appeal therefrom to the

District Court of the District for which the Primary Court is established.

Case Information

Order accordingly.

C No case referred to.

F.B. Mahatane for the appellants.

S.R. Kahangwa for the respondent.

[zJDz]Judgment

D Katiti, J.: This case has unfortunately may be inadvisably, taken a tortuous

meandering, if not also a stumpy course. Susan Shija and Paulinus Kazulunga, herein

the appellant and the respondent respectively, who had enthusiastically and wilfully

entered a matrimonial bond, publicly promising E monopoly of the same to the

exclusion of all others, as wife and husband respectively, found themselves

matrimonially asunder in Nyalikungu Primary Court, Maswa, Civil Case No. 6 of

1979. While the issue of custody of the children of the marriage, was revisited in

Tabora High Court F Matrimonial (PC) Civil Appeal No. 4 of 1979, the question of

division of matrimonial property, in this case a house situated in Sengerema

Township, remained an uncomfortable thorn in their flesh. So, Susana Shija filed an

action, Civil Case No. 25/1982 in Sengerema Urban Primary Court, seeking division of

matrimonial property - i.e. the house situated in Sengerema plot No. 38 Block B. As

G claimed by the appellant, the respondent failed, or ignored to honour notices of

hearing dates the court allowed the appellant to proceed ex-parte, and hence the

court's verdict, that the appellant was entitled to 50% of the value of the house. The

respondent's application to have the ex-parte judgment set aside, was unsuccessful.

H The option open to the respondent was to appeal, and indeed, through the services

of a Mwanza based advocate Mr. Kahangwa, an appeal was lodged before Sengerema

District Court - hence Sengerema District Court Civil Appeal No. 5 of 1984. For

reasons that I shudder to speculate on, I unsafe as it is, the Senior Resident

Magistrate called for the record in the manner as is hereunder, inter alia shown:

1984 TLR p60

KATITI J

Having perused the file and having checked the District Magistrate's Order, I

order that the appeal be heard A here in Mwanza. Mr. Mwihava Resident

Magistrate, to hear the same on the date he will fix, and transmit to parties.

Sign. B

Senior Resident Magistrate

I am not here primarily concerned with the confusion between an administrative and

a judicial function, inherent in the excerpt above. I shall proceed to point out, that

indeed Mr. Mwihava sitting C in Mwanza District Court, heard the appeal lodged in

Sengerema District Court, and while the caption of his judgment read, "IN

THE DISTRICT COURT OF SENGEREMA, AT SENGEREMA CIVIL APPEAL NO. 5

OF 1984, the caption of the decree loudly reads - IN THE DISTRICT COURT OF

MWANZA, AT MWANZA. D CIVIL APPEAL NO. 6 OF 1984. The culmination of

the hearing of this appeal, was that the appeal was allowed, and the Sengerema

Primary Court ex-parte judgment and attendant order, or orders were set aside.

The appellant Susan Shija has through the able agency of Mr. Mahatane, an Arusha

based advocate E appealed against the decision of the District Court Mwanza, in its

appellate capacity, on the following grounds:

(i) That the Learned Resident Magistrate sitting in the District Court At

Mwanza, had no jurisdiction to adjucate over the Appeal. F

(ii) That the learned Resident Magistrate, failed to direct himself on the

point of law, to the effect that the Application which had been filed at Sengerema

Primary Court by the Respondent on 17th January, 1984 was time barred. G

(iii) That Learned Resident Magistrate erred in admitting on appeal the

Exhibit of the copy of the Police message, from the hands of the Respondent, who

had never had the custody of that document, and who was not the author or the

recipient of the same. H

(iv) The Learned Resident Magistrate erred in that he did not note in the

record, that there was no evidence by the Respondent that he had informed his

employers, that he had been summoned to attend the Court at Sengerema on 15th

October 1983, and that the employer had refused that request from him. I

(v) The Learned Resident Magistrate erred, in that he failed to

1984 TLR p61

KATITI J

A take into account the fact that the decree of the Primary Court, had

been executed and the house had been sold long before the application for setting

aside the decree had been filed in Court.

(vi) The Learned Resident Magistrate erred in law in failing to note that an

Application for B division of matrimonial assets under Section 114 of the Law of

Marriage Act 1971 is not affected by the provision of Paragraph 21 Part (iii) of the

Schedule to the Law of Limitation Act 1971, and that it can be filed in Court

independently of the decree of divorce.

C (vii) The Learned Resident Magistrate erred in law in failing to appreciate

the heavy burden of proof placed upon the Respondent, in proving the sufficiency of

the reasons for failing to attend the hearing of the case.

(viii) The Learned Resident Magistrate erred in law in that he shifted the

burden of proving the D insufficiency of the reasons for non-attendance the hearing

of a suit.

(ix) The Learned Resident Magistrate erred in taking into account matters

not relevant in law in determining the issues before him.

E (x) The Learned Resident Magistrate erred in setting aside the decision of

the Primary Court, and the order made thereunder without sufficient grounds.

F REASONS WHEREFOR the Appellant prays the Honourable Court to set aside the

decision of....

I shall hereafter deal with all the grounds of appeal seriatim or sequentially if need be.

The first ground of appeal, as it does sequentially appear to be, is that the learned

Resident Magistrate sitting G in the District Court at Mwanza had no jurisdiction to

adjudicate over the appeal. Mr. Mahatane did warriorlike forcefully and eloquently

cite several, if not many sections, from the Magistrates' Courts Act Cap 537 and or as

repealed and re-enacted with modifications by the Magistrates' Courts Act 1984, that

came into application on 1/7/1984.

H Having scrupulously invested efforts and scrutiny over the case generally, I feel

convinced and satisfied that the answer to the 1st ground of appeal above, may be

gathered from first, the subject matter, second the appellate tier system and third, the

courts' territorial jurisdiction obtaining for the I time being. In this case the subject

matter was a prayer, subsequent to divorce for the division of matrimonial assets, a

house, purportedly acquired through joint

1984 TLR p62

KATITI J

efforts by the appellant and the respondent during the life of their marriage. The

division of A matrimonial assets being as it does, a prayer, that falls under the

provisions of section 114(1) of the Law of Marriage Act 1971, is of the nature of

matrimonial proceedings under part VI of the Marriage Act. It does follow

jurisdiction wise, that a Primary Court, which Sengerema Urban Court is, has B

jurisdiction to entertain, inter alia prayers for division of matrimonial assets, from

either of the parties.

The above, I think, is not an exercise in superfluity, as it does establish the

jurisdictional base of the Primary Court, in the subject matter, lest the cart is placed

in a position to pull the horse. The right of C appeal from the decision of a court, be

it original, or of first instance, or intermediate, is statute given, and relevant to this

case, it is the Law of Marriage Act, section 80, as amended by Act No. 15 of 1980, that

where in a matrimonial proceeding, which proceedings these were, a party is

aggrieved D by any decision, or order of a Primary Court, if the action is filed there,

may appeal from that Court, first, to the District Court.

The appellate tier system at this stage is, as it will presently and obviously emerge,

inextricably linked with territorial jurisdiction. A District Court, exercising

jurisdiction within that very district, in E which it is established, - see section 2 and

4 of Magistrates Courts Act 1984 or section 2 and 5 of Magistrates Courts Act Cap.

537. Correspondingly, it is even trite that a Primary Court is established in every

district, and does exercise jurisdiction within that very District, in which it is

established. It F cannot be imagined I think, in the absence of anarchy which we do

not have, that the order and direction of flow of appeals, are other than statutory

creatures, to ensure justice. In the direction of flows of appeals posed herein above,

we have the legislature through section 20 of the Magistrates' Courts Act 1984, or

section 16 of the repealed and re-enacted act Cap. 537, providing as follows: G

Section.: 20 (1) Save as hereinafter provided:

(a) ....

(b) In any other proceedings, any party, if aggrieved by an order of the

Primary Court, may appeal H herefrom to the District Court of the District for

which the Primary Court is established.

I think, first it befits the occasion to untimorously associate myself with the

underlining above - it is I mine. But, second, more

1984 TLR p63

KATITI J

A important is the import of the underlined part, that appeals from Primary Courts

have to be lodged in the District Court of the District for which the Primary Court is

established. If I venture to relevantly relate the import of the above provisions, to the

instant case, appeals from Sengerema B Urban Primary Court, or from any primary

Court in Sengerema District, in the absence of statutory provisions to the contrary,

which we do not have, are supposed to be filed in Sengerema District, which by

virtue of Section 80 of the Marriage Act 1971, in case of matrimonial proceedings, and

Sections now 4 and 20 of the Magistrates' Courts Act 1984, or Sections 5 and 6 of the

repealed and C re-enacted Act Cap. 537, has jurisdiction to adjudicate upon such

appeals.

Having given anxious consideration to the record in this appeal, I have noted with a

shadow of doubt, that the respondent, had infact through Mr. Kahangwa, a Mwanza

based advocate appealed D to Sengerema District Court - hence Sengerema District

Court Civil Appeal No. 5/1984. But for all we know, this record was summoned by

the Senior Resident Magistrate, and asigned to Mr. Mwihava a Resident Magistrate.

Although the learned Resident Magistrate's judgment is headed E "IN THE

DISTRICT COURT OF SENGEREMA, at Sengerema and the decree signed by him

captioned - IN THE DISTRICT COURT OF MWANZA AT MWANZA, there is no

shadow of any F doubt, that this appeal was heard and ajudicated upon, at Mwanza,

in Mwanza District Court. It is at this juncture, that finally the question whether a

Resident Magistrate sitting in Mwanza District Court, or call it any district court in

Mwanza District has the legal competence to adjudicate over an appeal, for a different

district, be in Sengerema, or over a case registered in Sengerema District Court,

becomes immediately pertinent.

G If we pay an obedient visit to the law - see Section 6(1) and 7(1)(c) of the

Magistrates Courts Cap 537, now Section 5(1) and 6(1)(c), it is trite law that a court of

a Resident Magistrate is duly constituted when held by a Resident Magistrate. But this

is no answer to the issue, as in law, the Court of Resident Magistrate per se, has no

appellate jurisdiction over matters originating from H Primary courts, neither as per

Magistrates Courts Acts, nor does Section 80 of the Marriage Act 1971, confer such

powers on a Court of a resident Magistrate. It follows that a Resident Magistrate,

holding a resident Magistrate's Court, has no appellate jurisdiction, over matters

originating from Primary Courts, in the region to which he is assigned.

I There is an argument, which could be attractive, that, as the term, "District

Magistrate" includes a Resident Magistrate, therefore

1984 TLR p64

such magistrate has power to hear appeals from Primary Courts. This argument is not

totally A fallacious, for it all depends on whether or not the said Resident Magistrate

is sitting as a District Magistrate, in the District Court, to exercise jurisdiction, within

the District in which such District Court is established. In this case, the Resident

Magistrate sitting as he did in the District Court of B Mwanza, established for

Mwanza District, could rightly be construed, as having sat therein as a Mwanza

District Magistrate, and for the purpose of appeals from Primary Courts, such as

Mwanza District Court, has jurisdiction to adjudicate over appeals from Primary

Courts established in Mwanza District; and not Sengerema District, as the same

Magistrate was not sitting as Sengerema C District Magistrate. It follows as night

follow daylight, that the Resident Magistrate, sitting as a District Magistrate, in

Mwanza Court, had no competent jurisdiction to adjudicate over appeals registered in

Sengerema District Court, and originating from Primary Courts, established in D

Sengerema District, unless extended jurisdiction has been conferred upon such

contiguous District Courts by the Hon. The Chief Justice, and this has not been done.

As the jurisdiction issue does effectively forestall or preempt other grounds of appeal,

it would be undesirable, for fear of prejudging the issue involved to entertain them.

For want of legal E jurisdictional competence as manifestly shown above, the

judgment and attendant orders, if any, by the resident Magistrate, are hereby declared

a nullity. It is hereby ordered that, the proper appeal be heard by a Court of

competent jurisdiction - Sengerema District Court. The appeal is allowed with F

costs.

Order Accordingly. G

1984 TLR p64

H