UNIT 2

Tanzania Courts System and their Jurisdiction

Contents

• Objectives
• Learning Outcome
• Introduction
• The Structure of Courts system of Mainland Tanzania: An introduction
• Primary Courts
• District Courts and Resident Magistrates' Courts
• The high Court of Tanzania
• The Court of Appeal of Tanzania
• Summary

Objectives

The objectives of this unit are:

• To explain the court system of Tanzania.

• To enable you understand the different types of courts’ jurisdiction.
• To enable you determine the court that can deal with a given case.

Learning Outcome
After studying this Unit you should be able to:

• Understand the judicial hierarchy of the courts in the country.

• Know the laws establishing the courts of Tanzania.
• Explain what is meant by a court’s jurisdiction.
• Understand the different category of courts’ jurisdiction.
• Determine which court has jurisdiction over a particular matter.

2.1 Introduction
This Unit deals with the court system for Mainland Tanzania. It describes the main features of the
present courts system and the jurisdiction each court has and the type of officials responsible for
deciding cases. You will see that every court of law is established under a specific provision of
law. Normally, the law that establishes a court would also stipulate the powers that can
be exercised by that court. However, other laws, not establishing the court may also confer
jurisdiction upon a specified court. The court system in Tanzania Mainland is established by two
different laws i.e. the Constitution of the United Republic of Tanzania 1977 (as amended) and the
Magistrate’s Courts Act 1984. Our discussion will therefore frequently make reference to the
provisions of these two laws and other laws and rules where relevant.

2.2 The Structure of Courts System of Mainland Tanzania: An introduction

The courts in Tanzania are arranged in a simple and clear hierarchy. There are superior and
subordinate courts and a special constitutional court. At the bottom of the scale there are the
Primary Courts, followed by District Courts and the Courts of Resident Magistrates, the High
Court of Tanzania and finally the Court of Appeal of the United Republic of Tanzania. The Court
of Appeal of the United Republic of Tanzania the highest appellate court for Mainland Tanzania
and for Zanzibar.
The special constitutional court is established under Article 125 of the Constitution of the United
Republic of Tanzania. The special constitutional court is of an ephemeral status. It is a
conciliatory court that is constituted only when there is a dispute between the Government of
Mainland Tanzania and the Revolutionary Government of Zanzibar concerning the interpretation
of the union Constitution. Its procedures are determined by itself and the court is dissolved as
soon as the dispute is resolved or ends. According to Article 126 (3) of the constitution, every
conciliatory decision of the special constitutional court shall be final and there shall be no right of
appeal to any forum.
This structure is illustrated by Figure 2:1, which appears on the next page.

2.3 Primary Courts

2.3.1 Establishment of Primary Courts

Primary Courts are established under section 3(1) of the Magistrates’ Courts Act, 1984
(hereinafter referred to as the MCA) which stipulates that:
“There is hereby established in every district a primary court which shall …exercise jurisdiction
within the district in which it is established.”
FIG.2: 1: THE COURT SYSTEM OF TANZANIA
 Note: There are other special courts, which are not shown in the chart, e.g. Juvenile Courts,
Special Traffic Courts, Court Martials and the Court Martial Appeal Court. None of them are
relevant to banking and have therefore been excluded in the discussion of the courts system.
Excluded also are a number of Tribunals, but in strict sense, these are not “courts”. They include:

• District Housing Tribunals

• Loans and Advances Realization Tribunal
• Customary Land Tribunal
• Industrial Court of Tanzania
• Ward Tribunals.

(a) Constitution and Language of the Courts

A Primary Court is presided over by a single Primary Court Magistrate assisted by not less than
two assessors. Except where the law confers power on the court or a magistrate to sit in camera,
as in the cases of juveniles, section 14 (1) of the MCA requires every magistrate to preside over
any civil proceedings while sitting in an open court.
According to section 7(2) of the MCA, all decisions in the Primary Court, including a finding in
any issue, adjournment of hearing, application for bail and whatsoever other matter, have to be
made by consensus. In case there is a difference between the magistrate and the assessors or
any of them, the matter will be decided by the votes of the majority of the magistrate and
assessors present. In the event of an equality of votes the magistrate has a casting vote in
addition to his deliberative vote.
The official language of a Primary Court according to section 13 of the MCA is Kiswahili. By
virtue of section 33(1) of the MCA, no Advocate or public prosecutor may appear or act for any
party (person) in a Primary Court. But a Primary Court magistrate may permit any relative or
member of the household of any party to proceedings of a civil nature, upon request of such
party, to appear and act for that party. And under subsection 3 to section 33, in cases where a
body corporate is a party (including proceedings of a criminal nature), a person in employment of
the body corporate and duly authorised in that behalf, other than an advocate, may appear and
act on behalf of that party.
2.3.2 Jurisdiction of Primary Courts
The term jurisdiction means the power or authority of a court or magistrate/judge to hear and
decide a given case and or to pass a particular sentence or judgement. A court may not
determine an issue without powers to do so. Thus before anything can commence in a given
court, the first thing is to determine whether or not the court has jurisdiction to hear the case. If a
court determines a matter over which it has no powers to do so, the decision made is illegal and
is of no effect.
The jurisdiction of a court is determined by reference to the geographical limits of the court
(territorial jurisdiction); or the subject matters of the case e.g. probate, matrimonial cause. Or the
value of money concerning the subject matter of the suit or proceedings e.g. amount of the debt
or compensation sought to be recovered by the claimant, or the value of property constituting the
subject matter of the case (pecuniary jurisdiction). And the specific judicial function being
exercised by a court e.g. revision or review of the decisions of a lower courts by superior courts
(revision and appellate jurisdiction).
(a) Territorial Jurisdiction
“Territorial jurisdiction” as already stated refers to the geographical limits within which a given
court of law is established and is to exercise its powers. Courts are designated to particular
areas only and so are the magistrates presiding over them. According to section 3 (1) of the
MCA, a Primary Court has jurisdiction within the district in which it is established. This means
that its jurisdiction spans the entire district. However a case has to be instituted in a Primary
Court, which will be the most convenient one to hear the case.
According to the Fourth Schedule to the Magistrates’ Courts Act, which governs the civil

jurisdiction of Primary Courts, proceedings of civil nature shall be heard and determined:
(a) If they relate to immovable property, by the court within the local limits of which the property
is situate.
(b) In any other case, by a court within the local jurisdiction of which the cause of action arose,
or where the defendant is ordinarily resident (or carries on business or personally works for gain),
or by a court to which proceedings have been transferred under, or on the order of the court.
In Athumani Sogora v. Sheikh Khamis Khalfan [1972], the appellant was an employee of a
Corporation and was posted in Dodoma. Although he rented a house in Dodoma, he also
maintained a home in Babati, where his wife lived. Sometime in 1971, the appellant reported the
respondent to Babati police station alleging that he had caught the respondent committing
adultery with his wife in Babati. Soon thereafter the respondent hurriedly left Babati to Dodoma
and filed a suit against the appellant claiming shs. 1000/= as damages for defamation. The
appellant raised an objection before the Dodoma Primary Court saying that the Dodoma Primary
Court did not have the jurisdiction to try the case because the respondent’s suit arose in Babati.
The objection was overruled and the appellant appealed to the District Court and then to the High
Court. The High Court allowed the appeal on the grounds that while the appellant had residences
in both Dodoma and Babati, he was more resident in Babati where his wife lived than in Dodoma
and that since the cause of action arose in Babati, the case had more connections with Babati
than it had with Dodoma.
It therefore follows that where a cause of action (the wrong or act or transaction giving rise to the
suit) arises within the jurisdiction of more that one Primary Court, the suit is to be instituted in the
court with which it has more connections than the other. Secondly, where the defendant has
more than one residence, he or she will be treated as being ordinarily resident in the place where
he or she is more resident for purposes of jurisdiction of Primary Courts.
With regard to criminal cases, Section 19 of the Primary Courts Criminal Procedure Code states
that an offence shall be tried by the court within the local limits of the jurisdiction of which:
(a) The offence was committed;
(b) The accused was apprehended or is in custody on a charge for the offence or has appeared
in answer to a summons lawfully issued charging him with the offence; or
(c) If the offence was committed on a journey, any part of the journey lay; or
(d) If it is uncertain in which court of the several local areas in which the offence was committed,
where any ingredient of the offence occurred. Thus if the offence was partly committed within
and partly outside the local limits of the court, then any of the two courts may try the offender.
(b) Subject Matter Jurisdiction
Subject matter jurisdiction refers to the authority of a particular court to try a case of a particular
kind e.g. a criminal matter and civil matter such as land dispute, labour or marriage. Primary
Courts have jurisdiction to try both criminal and civil cases. Their criminal jurisdiction is restricted
to a list of offences provided under the First Schedule to the Magistrates’ Courts, Act, 1984.
Primary Courts therefore have limited criminal jurisdiction. Proceedings of criminal nature before
a Primary Court are regulated by the Third Schedule to the MCA, and it is entitled “The Primary
Courts Criminal Procedure Code.”
The civil jurisdiction of Primary Courts, is stipulated under section 18 (1) of the Magistrates’
Courts Act 1984 (hereinafter MCA). Under this section, Primary Courts have unlimited original
jurisdiction on matters relating to customary law and Islamic law. The term original
jurisdiction means that the cases governed by such law are tried for the first time in that court or
must commence in that court. And where a court exercises original jurisdiction in certain
proceedings it is often referred to as a court of first instance.
(c) Pecuniary Jurisdiction in Civil Cases
Section 18 (1) of the MCA states that, 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 affecting title to or any
interest in land registered under the Land Registration Ordinance.
(ii) For recovery of civil debts, rent or interest due to the Republic, any district, city, municipal or
town council under any judgement, written law, right of occupancy, lease or sublease or contract,
if the value of the subject matter of the suit does not exceed 5 million shillings, and any
proceedings by way of counterclaim and set off therein of the same nature not exceeding such
value.
(iii) For recover of any civil debt arising out of contract, if the value of the subject matter of the
suit does not exceed 3 million shillings and any proceeding by way of counterclaim and set off
therein of the same nature not exceeding such value.
Example:
- X lends Y shillings three million.
- Y had previously lent X shillings one million which debt remains outstanding.
- If X files a claim for recovery of shillings three million from Y, in reply Y can claim a set off of
one million shillings, the amount he had lent to X.
The subject matter of the suit in this example is a contractual debt of three million shillings and a
counter claim or set off of shillings one million. Both amounts are within the pecuniary jurisdiction
of a Primary Court and so the Primary Court can try the matter.
It is possible for a banking case to start in a Primary Court if the subject matter of the case does
not exceed three million shillings and the law applicable is customary law. However in practice, it
is not common for banks to enter into transactions or contracts under customary law and so only
in a few instances would a Primary Court have jurisdiction over a banking transaction. (E.g.
see 2.3.2(d) below).
Note: A Primary Court has no jurisdiction in any proceedings affecting title to or any interest in
land registered under the Land Registration Ordinance, Cap. 334 (proviso to clause (a) (i) to
section 18(1). Cases concerning registered land must therefore be commenced in higher courts

having jurisdiction.
The jurisdiction of Primary Courts in proceedings of a civil nature is further elaborated in the
4th and 5th Schedules to the MCA. The procedures governing civil proceedings before a Primary
Court are contained in the Primary Courts Manual and thus different from that applied in the
higher courts.
(d) Jurisdiction on Other Civil Matters
Primary Courts also have jurisdiction:

• In all matrimonial proceedings relating to civil and Christian marriages e.g. divorce,
maintenance, and custody of children. The original jurisdiction of a Primary Court on
these matters is vested concurrently in the High Court, Courts of Resident
Magistrates’ and District Courts. The term concurrent jurisdiction means that
 jurisdiction in respect of the same proceedings is conferred on different courts and
hence a case may be heard by either court X or court Y.
• Proceedings concerning the administration of estates (i.e. the property left behind by
a deceased person) where the law applicable to the administration or distribution or
succession to the estate is customary law or Islamic law. Such proceedings may
include a bank account, regardless of the credit balance that it contains. The
determining factor for the court's jurisdiction in this instance is the law governing the
administration of the estates.
• All proceedings in respect of which jurisdiction is conferred on a Primary Court by
any law.

2.3.3 Transfer of Cases

Under section 47 of the Magistrates’ Courts Act 1984, a Primary Court may with the consent of
the District Court or a court of Resident Magistrate having supervisory jurisdiction over it, transfer
any proceedings instituted before it to a District or Resident Magistrate or to another Primary
court. The District Court or a Court of Resident Magistrate having jurisdiction within any part of
the local jurisdiction of which the Primary Court is established may order the transfer of a case
from a Primary Court to itself or to some other magistrate’s court. The High Court may also order
the transfer of proceedings to itself or to some magistrates’ court.
Such transfer of case from a primary court may be made where:

• The circumstances and gravity of the proceedings make it desirable that proceedings
be transferred;
• There is reasonable cause to believe that there could be a failure of justice if
proceedings are heard in the Primary Court;
• The subject matter of the proceedings arose outside the local limits of the Primary
Court’s jurisdiction, or is not within its jurisdiction or in any case in which the law
applicable is not the customary law prevailing within the local jurisdiction of the court
in which proceedings were instituted; or
• The law applicable is neither customary law nor Islamic law.

As a general rule, the person seeking to transfer of a case from a Primary Court to a District
Court or wishes that proceedings commence in a court other than a primary court must show
good and sufficient reasons for that request. In the case of Abubakar Mohamed Mlenda v. Juma
Mfaume [1988], it was stated that a mere wish and financial ability to engage an advocate do not
amount to good and sufficient cause.

Learner Activity 1
Pwagu sues Pwaguzi in the Primary District Court of Manzese claiming a sum of shs.190, 000/=. Th
- Shs.65, 000/=upon a cheque drawn by Pwaguzi in Pwagu’s favour and dishonoured, the origina
000/= on another dishonoured cheque in payment of a friendly loan advanced by Pwagu to Pwaguzi
- Shs. 30,000/=being the amount due on another batch of goods sold and delivered by Pwagu to P
the sums indicated above as per merchantile custom.
 In reply to the claim Pwaguzi states in respect of the cheque of shs.65,000/=that the goods that were
ordered and accordingly he had returned them. In respect of the other sums he also says “I do not ow
claimed on the whole amount is not due at all.
Discuss whether The Primary Court of Manzese has jurisdiction to try the case.

2.3.4 Appeals from Primary Courts

An appeal is a challenge by an aggrieved party of the correctness of the decision of a court of
first instance or an intermediate appellate court. It thus entails a judicial examination by a
superior court of the decision of an inferior court at the instance of an aggrieved party. Any
person, who is aggrieved by an order or decision of a Primary Court, may appeal to the District
Court of the district in which the Primary Court is established.
Section 20(3) of the MCA, provides that every appeal to a District Court shall be by way of
petition and shall be filed in the District Court within 30 days after the date of the decision or
order against which the appeal is brought. The term petition simply means a formal application in
writing made to a court asking for some specific judicial action.

2.4 District Courts and Resident Magistrates' Courts

2.4.1 What is a District and Resident Magistrates’ Court?

(a) District Courts
A District Court is a magistrates’ or subordinate court established under section 4(1) of the MCA
for the district in which it is situated. A District Court normally exercises jurisdiction within the
administrative district in which it is established. However by virtue of section 4(3) of the MCA,
the Chief Justice may vary the designation of such court so that it covers other areas beyond the
geographical boundaries of that political or administrative district. District Courts operate side by
side with Resident Magistrates’ Courts and exercise concurrent original jurisdiction in criminal
and civil matters when a civil magistrate presides over civil proceedings.
(b) Resident Magistrates’ Courts
Resident Magistrates’ Courts are magistrates’ or subordinate courts established by orders of the
Chief Justice published in the Gazette in accordance with the powers conferred on him under
section 5(1) of the MCA. The territorial jurisdiction of a Court of a Resident Magistrate is
designated for it in the order establishing it. Courts of Resident Magistrates’ are usually
established to serve the administrative region or the regional political establishment in which they
are situated and therefore the geographical limits of their jurisdiction is more expansive that that
for a District Court.
Although Resident Magistrates’ Courts and District Courts operate side by side, Resident
Magistrates’ Courts occupy a higher judicial and administrative rank than District Courts do. A
District Court may be presided by a District Magistrate or Resident Magistrate whereas a Court of
Resident Magistrate can only be presided over by a Resident Magistrate. All Resident
Magistrates’ are holders of a law degree while District Magistrates hold a diploma in law. Section
4 of the Civil Procedure Code 1966 provides that for the purpose of the Code every Court of a
Resident Magistrate is subordinate to the High Court and every District Court is subordinate to
the Court of Resident Magistrate within the area of whose jurisdiction it is situate.
(c) Constitution of District Courts and Resident Magistrates’ Courts
According to section 6(1)(b) of the MCA, a District Court is duly constituted when it is presided
over by a district magistrate or a resident magistrate. A Resident Magistrates Court, as already
said, can only be presided over by a Resident Magistrate. Section 6 (2) of the MCA, provides
that, where jurisdiction is conferred on a District Court only when held by a magistrate of a
particular description, such court shall not be duly constituted for the exercise of such jurisdiction
unless held by a magistrate of that description. A District Magistrate may therefore not sit in a
Resident Magistrates’ Court. Under section 6(4) of the MCA, the Chief Justice may direct two or
more magistrates of the same or appropriate description to sit for the hearing and determination
of any proceedings.
Section 7(3) MCA provides that, in proceedings in which any rule of customary law or Islamic law
is in issue or relevant, the court (district or resident magistrates’ court) may and if directed by an
appropriate authority e.g. a court with supervisory powers, or the Chief Justice, shall sit with an
assessor or assessors. In such cases, every assessor shall before judgement, be required to
give his or her opinion as to all customary or Islamic law in issue or relevant to the
proceedings. However unlike in Primary Courts, the resident or district magistrate is not bound
to conform to the opinion of the assessors. Advocates and Public Prosecutors are allowed to
appear in both courts.
(d) Language of District and Resident Magistrate’s the Courts
Section 13(1) MCA provides that the language of the court shall be either English or Kiswahili or
as the magistrate presiding over the court may direct. However, in every case, the records and
judgement of the court must be in English, save where the court hears an appeal or exercises its
powers of revision, in which case the record and judgement may be in English or Kiswahili.
(e) Laws Applicable in District Courts and Resident Magistrates’ Courts
Section 6 of the JALO, Cap. 453 provides that a magistrates’ court shall exercise its jurisdiction
in accordance with the laws with which the High Court is required by the same Ordinance to
exercise its jurisdiction and with such other laws that shall form time to time be in force and
applicable to the proceedings before it. But no magistrate may exercise jurisdiction, which is by
law conferred exclusively on the High Court.
2.4. 2 Original Civil Jurisdiction of District Courts and Resident Magistrates’ Courts
Section 42 of the MCA provides that, the powers of both, District Courts and Resident
Magistrates’ Courts are limited and their practice and procedure

• In exercise of their original criminal jurisdiction is regulated by the Penal Code, Cap.
16 and the Criminal Procedure Act, 1985 (hereinafter referred to as the CPA); and
• Their original civil jurisdiction is exercised in accordance with the principles and
provisions of the Civil Procedure Code I966, Act No. 49 of 1966 (hereinafter referred

to as the CPC).

(a) Criminal Jurisdiction

Under section 40 (1) of the MCA, District Courts have and exercise original jurisdiction in all
proceedings of criminal nature in respect of which jurisdiction is conferred on a District Court by
any law for the time being in force. Resident Magistrate’ Court, have concurrent criminal
jurisdiction with District Courts. This means that in all proceedings of criminal nature, they
exercise original jurisdiction in respect of which jurisdiction is conferred on a District Court by any
law.
Offences triable by District Courts and Resident Magistrates’ Courts are specified in the First
Schedule of the CPA, Part A in the Fifth Column. Generally District Courts and Resident
Magistrates’ Courts can try all offences except offences that carry a death penalty or
imprisonment for 15 years or more. For example cases of murder are not heard in District or
Resident Magistrates’ Courts, although preliminary proceedings (called preliminary inquiry or
committal proceedings) in respect of such cases commence in a District Court or a Resident
Magistrates’ Court.
Section 177 of the CPA gives every court in Tanzania jurisdiction to try offences committed within
its territorial limits of which it has jurisdiction. However sections 180 to 184 provide for different
situations under which courts have jurisdiction to try offenders. For example a court within the
locality of which the offender was arrested, or remanded in custody, a court before which the
accused appeared to answer a charge may all try the offender. And where the act or
consequence of the offence takes in two different areas then either the court where the act or the
consequence takes place has jurisdiction to try the matter. Likewise, if the offence is committed
partly in one area and partly in another then either courts within whose jurisdiction either of the
acts or series of acts occurred have got jurisdiction to try the case.
Thus if forgery of a cheque takes place in Dar es salaam and it is paid in Dar es salaam but the
offender is apprehended in Kigoma, then the District Court of Kigoma will have jurisdiction over
the case.
(b) Civil Jurisdiction
According to section 40 (2)(a) of MCA as amended by Act No. 25 of 2002, a District Court when
presided over by a civil magistrate has power to entertain proceedings:

• For the recovery of possession of immovable property in which the value of the
property does not exceed shillings “one hundred and fifty million” (150 million).
• In any other proceedings where the subject matter of the suit is capable of being
estimated in a money value, to proceedings in which the value of the subject matter
does not exceed shillings “one hundred million” (100 million).

Note: Shillings 150 and 100 million are just the maximum limits. If for instance the subject matter
of the suit is less than 10 million shillings but more than 3 million, the suit would still be
commenced in a District Court, as the amount is higher than the stated pecuniary jurisdiction of a
Primary Court.
(c) Place of Suing
Section 13 of the Civil Procedure Code provides that “every suit shall be instituted in the court of
the lowest grade competent to try it.” For the purposes of this section, a court of a Resident
Magistrate and a District Court shall be deemed to be courts of the same grade. Thus the above
pecuniary jurisdiction of civil magistrates is also the pecuniary jurisdiction of Resident
Magistrates’ Courts. The only difference is that, unlike civil magistrates Resident Magistrates
have automatic civil jurisdiction.
According to section 14 of the CPC suits concerning immovable property situated in Tanzania,
may subject to the pecuniary jurisdiction or other limitations prescribed by any law, be instituted
in the court within the local limits of whose jurisdiction the property is situate. Such suit may be
for recovery of immovable property (e.g. a house) with or without rent or profits; for partition of
immovable property; for sale or redemption in case of a mortgage of or a charge over; or for
determination of any other right to or interest in immovable property.
In all other cases, section 18 of the CPC states that every suit shall be instituted in a court within
the local limits of whose jurisdiction -

• The defendant or each of the defendants where there are more than one, at the time
of commencement of the suit, actually and voluntarily resides, or carries on business
or personally works for gain; or
 • The place where the cause of action arose i.e. the place where the wrong was
committed or where the act or transaction giving rise to the proceedings took place.

2.4.3 Appellate Jurisdiction of District Courts

Appellate jurisdiction refers to the power of the higher court in the judicial ladder to review
decisions of inferior courts or to hear an appeal brought before it from a lower court. In exercise
of its appellate jurisdiction a District Court has power to:

• Direct the primary court to take additional evidence and to certify it to the District
Court, or itself to hear additional evidence;
• To confirm, reverse, amend or vary in any manner the decision or order appealed
against, including power to substitute a conviction or a conviction and sentence for
an acquittal;
• To quash any proceedings and where considered desirable, to order the case to be
heard de novo (i.e. afresh) either before the court of first instance or some other
Primary Court or any District Court, having jurisdiction.

By virtue of section 20 of the Ward Tribunals Act 1985, District Courts also act as the final
appellate courts on all matters involving points of law originating from Ward Tribunals situate
within their areas of establishment. Ward Tribunals are outside the judicial system and are
manned by persons who are not legally trained. But they have some civil and criminal jurisdiction
on minor cases, with power to award compensation, impose fines and terms of imprisonment.
2.4.4 Revision Jurisdiction and Supervisory Powers
(a) Revisional Jurisdiction of District Courts
Revision jurisdiction consists of powers of a higher court to call for the records of proceedings in
a lower court for the purpose of ascertaining the regularity of proceedings, correctness, legality or
propriety of the subordinate courts decision or procedure. Section 22(1) of the MCA gives District
Courts powers of revision of judicial proceedings in Primary Courts. In exercising these powers, a
District Court may call for and examine records of any proceedings in the Primary Court
established for the district for which it is itself established. The District Court’s powers of revision
are similar to those conferred upon a District Court in the exercise of its appellate jurisdiction.
This means that in exercising its powers of revision, a District Court can order a rehearing of the
case, or quash proceedings of the Primary Court or substitute a conviction for an acquittal and
the vice versa.
The above powers of revision may be exercised by a District Court, either sua motto (i.e. on the
courts own motion) or at the instance of the court, which dealt with the proceedings or on
application, by any party to the proceedings.
(b) Supervisory Powers of a Resident Magistrate in-Charge
Section 15(1) of the MCA empowers the Chief Justice to appoint for each region a Resident
Magistrate in-charge to perform the supervisory, administrative and judicial functions of a
resident magistrate in-charge in the region. A Resident Magistrate in charge has supervisory
powers over all District Courts in the region. Under section 44 (2) of the MCA, he or she is
empowered to call for and inspect the record of any proceedings in a District Court to check the
legality or propriety of any decision or order. And if he or she considers that any decision or order
is illegal or improper or any proceedings are irregular, forward the record with a report to the High
Court in order that it considers whether or not to exercise its powers of revision.
2.4.5 Extended Jurisdiction of a Resident Magistrate
Extended jurisdiction connotes appellate judicial powers over and above the ordinary appellate
powers that are generally conferred upon a particular court or a magistrate. Under section 45(1)
of the MCA, the Minister responsible for legal affairs after consultation with the Chief Justice and
with the Attorney General may by order published in the Gazette

• invest any Resident Magistrate, in relation to any category of cases specified in the
order, with the appellate jurisdiction ordinarily exercisable by the High Court.
• invest in any Resident Magistrate, in relation to any particular case specified by the
order, with the appellate jurisdiction ordinarily exercisable by the High Court.

A Resident Magistrate who has been vested with the above powers may, subject to any
limitations specified in the order, hear and determine appeals and exercise jurisdiction as a court
of appeal in the same manner and to the same extent as the High Court. When exercising such
jurisdiction, the Resident Magistrate concerned shall be deemed to be a judge of the High Court
and the court presided by him while exercising such jurisdiction, shall be deemed to be a High
Court.
2.4.6 Appeals From Decisions of District Courts and of Resident Magistrates’ Courts
Under the MCA every person who is aggrieved by the decision or order of a District Court or a
Court of Resident Magistrate in exercise of either its original or appellate or revision jurisdiction,
has the right to appeal to the High Court. With regard to civil cases such right of appeal is also
contained in section 70(1) of the Civil Procedure Code. By virtue of Order 34 of the Civil
Procedure Code every appeal shall be in the form of a memorandum of appeal. The term
memorandum of appeal refers to a written document containing the grounds of appeal or a
formal application in writing made to a court asking for some specific judicial action.

2.5 The high Court of Tanzania

2.5.1 Establishment and Composition of the High Court

(a) Establishment of the High Court
The High Court is established under Article 108(1) of the Constitution of the United Republic of
Tanzania, 1977. It is the predecessor to the High Court of Tanganyika and later Tanzania, which
was established under article 17 (1) of the Tanganyika Order in Council, 1920. The High Court
can be described as a superior court having full jurisdiction. By virtue of section 2(1) of the
Judicature and Application of Laws Ordinance Cap.453, the High Court has full (i.e. unlimited)
civil and criminal jurisdiction. Such jurisdiction is however subject to the jurisdiction of the Court
of Appeal as stipulated under the Constitution and any other written laws.
In the case of Northern Tanzania Farmer’s Coop Society Ltd. v. Shelukindo (1978), it was stated
that the High Court is:
“ An organ deriving its establishment and existence by the operation of the constitution of this
country. This organ unless otherwise expressly restricted by the legislature has unlimited criminal
and civil jurisdiction, pecuniarily and territorially…Apart from the court of Appeal it is the highest
court for the administration of justice in this country.”
The High Court is a Court of Record. This means that it is a court which is required to keep its
proceedings and that it may fine and imprison. Such records import verity and cannot be
collaterally impeached or disputed. The High Court as such, is a point of reference for guidance
by subordinate courts and other agencies of the state.
The High Court is also described as a Court of Admiralty, meaning that, it can adjudicate
disputes arising in the high seas and inland waters. Section 3 of the JALO states that the High
Court shall be a Court of Admiralty and shall exercise jurisdiction in all matters on the high seas
or elsewhere or upon any lake or other navigable inland waters or otherwise relating to ships or
shipping.
(b) Composition of the High Court
According to Article 109 of the Constitution, the High Court is composed of the Principal Judge
and not less than fifteen other judges. The President appoints judges after consultation with the
Judicial Service Commission. By Article 109 (3) of the Constitution, the Principal Judge is the
special assistant of the Chief Justice in the administration of the High Court and Courts
subordinate to it. In addition to his ordinary powers as a judge of the High Court, Principal Judge
is also empowered to perform all such duties and functions, which in accordance with legal
traditions applicable are matters to be performed by the head of the High Court.
(c) Divisions of the High Court
There are two special branches of the High Court i.e. the Land Division of the High Court and the
Commercial Division (commonly known as the Commercial Court of Tanzania). Judges of the
Commercial Court and the Land Division are appointed to sit in the respective divisions by the
Chief Justice from amongst Judges of the High Court. Both Divisions were established through
amendment of the High Court Registries Rules of 1984.
The Land Division handles land disputes and its establishment is part of the implementation of
the requirements of the recently enacted Land Act (Land Act 1999). The Commercial Court
was established in 1999 to deal with cases of a commercial nature. The main objective for the
establishment of the said court was to ensure efficient management and expeditious disposal of
commercial disputes so as to encourage business development under a free market economy
and also growth of foreign investment. However, not every commercial case need be instituted in
the Commercial Court. A case that in the ordinary sense is of a commercial nature and therefore
ought to be heard before the Commercial Court may nonetheless be heard before the ordinary
High Court if both parties to the case so agree.
There is no straightforward definition of what constitutes a commercial case. However a
commercial case may be said to include any cause arising out of the ordinary transactions of
merchants or traders or businessmen. The High Court Registries (Amendment) Rules, 1999
provides a list of matters that may be considered to involve issues of commercial significance,
which may therefore be heard before the Commercial Court. It includes among others,

• The contractual relationship of a business or commercial organisation with other

bodies or persons outside it;
• The liability of a commercial or business organisation or its officials arising out of its
commercial or business activities;
• The restructuring or payment of commercial debts by or to a business or commercial
organisation or person;
• The winding up or bankruptcy of a commercial or business organisation or person;

The following matters on banking may go to the Commercial Court: - negligence by a banker in
the collection and payment of a cheque or bills; or negligence in respect of bailment of valuable
items belonging to a customer. Also enforcement of security for advances made to a customer of
the bank e.g. foreclosure, sale or retention of security by a banker, liability of a guarantor and
government control and regulation of banking business. The liability of a banker or customer in
respect of any services to or use of banking service by a customer such as use of electronic
payment systems or devices are other matters that may be heard by the Commercial Court.
2.5.2 The Constitution of the High Court for a Judicial Proceeding
The High Court is duly constituted for purposes of judicial proceedings when it is presided over
by a single judge. Sections 27(1) of the MCA provides that appeals to the High Court shall be
heard by one judge unless the Chief Justice directs that an appeal be heard by two or more
judges. Such direction by the Chief Justice may be given at any time before judgement.
Subsection 3 to section 27 states that if two or more persons (judges) hearing an appeal are
equally divided the appeal shall be dismissed. Under section 27(4) of the MCA, where in any
appeal a rule of customary law is in issue or relevant, the High Court may refer any question of
customary law to a panel of experts, but shall not be bound to conform with the opinion of such
experts in determining the appeal.
Both Divisions of the High Court are also properly constituted when presided over by a single
judge sitting with two assessors. However where both parties to the case agree, the judge in the
Commercial Court may hear their case without the aid of assessors. Assessors sitting in the
Commercial Court are selected from a list submitted to the court by the Commercial Court Users
Committee and have to be knowledgeable in the field concerning the suit. In cases where
assessor’s opinions are different from that of the judge, the judge in either Division is not bound
to follow their opinion provided that he or she gives the reasons for disagreeing with them.
As for criminal cases, section 370 of the Criminal Procedure Act 1985 stipulates the same
number of judges in respect of criminal appeals to the High Court. Section 265 of the same Act
provides that all criminal trials before the High Court shall be with the aid of two or more
assessors as the court thinks fit, but in giving the judgment, the judge is not required to conform
with the opinion of the assessors. If the accused person is convicted, the judge will pass
sentence according to law.

2.5.3 The Original and Unlimited Jurisdiction of the High Court

(a) Unlimited Original Jurisdiction
Article 108(2) of the Constitution, states that, the High Court has unlimited jurisdiction to hear and
determine any matter which the constitution or any other law has not expressly provided that the
specified matter shall first be heard by another court specified for that purpose. Under the same
sub-article, the High Court also has jurisdiction to deal with any matter which according to legal
traditions and conventional practices obtaining is ordinarily dealt with by a High Court. The sub-
article provides further that, the jurisdiction of the High Court is subject to the jurisdiction of the
Court of Appeal as provided for in the Constitution and any other law.
(b) Original Jurisdiction on Civil Matters
In the light of Article 108(2) of the Constitution and the provisions of the JALO, the High Court
has original civil jurisdiction over all matters that are outside the jurisdiction of courts subordinate
to it. For example proceedings where the value of the subject matter of the suit exceeds the
pecuniary jurisdiction of a District Court and Court of a Resident Magistrate (i.e. shillings one
hundred million) are to be tried for the first time by the High Court. The High Court also has
original jurisdiction over all naval affairs or admiralty and matters, which by legal traditions and
conventional practices obtaining is ordinarily dealt with by a High Court.
(c) Original Jurisdiction on Criminal Matters
The High Court also has exclusive original jurisdiction over all offences that are not triable by
subordinate courts. The majority of these offences either carry capital punishment (i.e. death
sentence) or a sentence for life imprisonment e.g. murder, manslaughter, infanticide, treason,
inciting to mutiny, promoting warlike undertaking and incest. Offences that are of direct relevance
to banking and of which original jurisdiction is vested in the High Court include counterfeiting
coin, making preparation for coining and making or having in possession of paper or implements
for forgery of currency bank notes. The latter is punishable with imprisonment for seven years
whereas the first two are punishable with imprisonment for life.
2.5.4 Appellate Jurisdiction of the High Court
An appeal to the High Court can be on points of facts or points of law or on mixed fact and law.
An appeal is based on points of fact where the aggrieved person challenges actual finding of
fact. That given the evidence presented in the court, the court reached a wrong decision. And it is
on a point or points of law where the aggrieved party says that the court applied wrong principles
of law or that a certain principle of law or procedures, which ought to have been followed, was
not followed and hence reached an erroneous decision.
Section 76 and the provisions of Order 39 of the Civil Procedure Code 1996 states that, in
exercise of its appellate jurisdiction the High Court have power to:

• Finally determine the suit, if the evidence on record is sufficient.

• Remit the case for a retrial.
• Frame the issues and refer them for trial. This may happen if the lower court from
whose decree the appeal is preferred omitted to frame or try or determine any
question of fact essential to the right decision of the suit.
• Take additional evidence or require such evidence to be taken by the court from
whose decree the appeal is made or any other subordinate court to take additional
evidence and send it to the Court.

Section 72 of the CPC states that, where a case is heard by a bench of two or more judges, the
appeal shall be decided in accordance with the opinion of the majority (if any) of such judges.
And where there is no majority, which concurs in a judgement varying or reversing the decree
appealed from, such decree shall be confirmed. Any judge dissenting from the judgement of the
court shall state in writing the decision or order that he or she thinks should be passed on the
appeal and may also state the reasons for that opinion.

2.5.5 Powers of Review, Supervision and Revision

(a) Powers of Review
Section 78 of the CPC allows any person who is aggrieved by a decree or order from which an
appeal is allowed but no appeal has been made to apply for a review of the decree or order by
the magistrate or judge who passed the judgment. This may happen where for example, the
aggrieved party failed to prefer his or her appeal within the prescribed time and there are
sufficient reasons for that delay. Review may also be applied for in circumstances where the
party has no right to appeal so that a court can reverse its decision.
According to Order 42 rule 1(b) of the CPC, the applicant for review must show that he or she
has discovered new and important matter or evidence, which after exercise of due diligence, was
not within his or her knowledge or could not be produced at the time when the decree was
passed or when the order was made. Some mistake or error apparent on the face of the record
(i.e. the written judgement) or for any other sufficient reason can also prompt an application for
review. No such application shall be granted without prior notice being given to the opposite party
to enable him or her to appear before court to support or oppose the review, which is applied for.
The judge (or magistrate) to whom the application is made is free to alter his or her decision as
he or she deems fit, but he or she cannot revisit the evidence, which was before him or her at the
time of the trial. Once a decision has been revised the judge making the revision may not take
another look at his or her decision. In Paul Lema v. Wilson Chuwa [1989] a High Court judge
reviewed his own order made in revision in a matter arising from a suit to resist the sale of a
house in a public auction. Aggrieved by the judge’s reversal of his revision order, he appealed to
the Court of Appeal against the judge’s decision. The Court of Appeal restored the judge’s first
revision order holding that the judge was not entitled to take a second look at his own decision.
Likewise once a judge (the same for a magistrate) has reviewed a prior decision made by him or
her, he or she is not entitled to take a second review of his decision.
(b) Powers of Supervision and Revision
The High Court is vested with general powers of supervision and revision over all District Courts
and Courts of Resident Magistrates in the exercise of their appellate jurisdiction on matters
originating from Primary Courts as well as in exercising their original jurisdiction. In exercising
such jurisdiction the High Court may under sections 30 of the MCA:

• Call for and inspect the record of any proceedings in a District Court or a Primary
Court and examine and the register thereof;
• Direct any District Court to call for and inspect the records of any proceedings in a
Primary established in its District and examine the records and register thereof in
order to satisfy itself as to the correctness, legality and propriety of any decision or
order and as to the regularity of any proceedings therein; or
• itself revise any such proceedings.

According to section 44 (1)(b) of the MCA, in any proceedings of civil nature where it appears
that there has been an error material to the merits of the case involving injustice, the High Court
may revise the proceedings and make such decision as it sees fit. However no decision or order
shall be made to increase any sum awarded or to alter the rights of any party to his or her
detriment unless such party has first been given an opportunity of being heard.
Section 79(1) of the CPC also gives to the High Court powers to call for the record of any case
decided by any court subordinate to the High Court and in which no appeal is allowed. If on
examination of the record such subordinate court appears to
(a) To have exercised a jurisdiction not vested in it by law, or
(b) To have failed to exercise a jurisdiction so vested or
(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High
Court may make such order in the case, as it thinks fit.
In Abdu Hassan v.Mohamed Ahmed [1989], for example, the plaintiff (Mohamed Ahmed) filed a
civil suit in Bunda District Court, claiming shs. 280,460/=, being the value of various merchandise
delivered to Abdu Hassan at the latter’s request and promise to pay but failed to pay. The District
Magistrate heard and decided the suit. At that time the pecuniary jurisdiction of a District Court
under section 40(2)(b) of the MCA, was limited to shs. 200, 000/=. A resident Magistrate in-
charge, on noting the case, forwarded its records to the High Court with recommendations for
revision by the High Court. On revision, the High Court decided that the magistrate lacked
pecuniary jurisdiction to entertain the suit and the proceedings were a nullity.

Learner Activity 2
What is the difference between review and revision? When may the High Court revise a decision of
an appeal from the judgment of a Primary Court?

2.6 The Court of Appeal of Tanzania

2.6.1 Establishment and Composition of the Court of Appeal

The Court of Appeal of Tanzania was established in 1979 through an amendment of the
Constitution of the United Republic of Tanzania 1977. That is, through the Republic of Tanzania
Constitutional (Amendment) (No. 1) Act No. 14 of 1979. The Court was established to replace
the Court of Appeal for East Africa as the highest appellate court for the United Republic of
Tanzania following the break-up of the East African Community.
According to Article 118(1) of the Constitution, the Court of Appeal shall consist of the Chief
Justice and not less than two other Justices of Appeal. However, the full bench of the Court of
Appeal is constituted by not less than five Justices of Appeal. The Chief Justice is the head of the
Court of Appeal and of the whole Judiciary. He is an appointee of the President of the United
Republic of Tanzania. The President also appoints the other Justices of Appeal after consultation
with the Chief Justice.
Article 119 of the Constitution states that no Justice of Appeal shall have jurisdiction to hear any
matter originating in the High Court or in any magistrates court of any grade. But a Judge of the
High Court who is appointed a Justice of Appeal may discharge his functions in the High Court
for purposes of completing the preparation and delivery of a decision on any matter which he had
started hearing before being appointed a Justice of Appeal.
The general provisions concerning appeals to the Court of Appeal are to be found under the
Appellate Jurisdiction Act 1979, No. 15 of 1979. The Tanzania Court of Appeal Rules 1979
regulates the practice and procedures of the Court of Appeal and intended appeals from the High
Court.
2.6.2 Constitution of the Court of Appeal for Hearing an Appeal
Article 122(1) of the Constitution stipulates that the quorum at every sitting of the Court of Appeal
shall be not less than three Justices of Appeal. The Chief Justice selects the three Justices of
Appeal for that purpose. Under Article 122(2) of the Constitution, every matter on appeal, which
requires the decision or judgement of the Court of Appeal, shall be based on the opinion of the
majority of the Justices of Appeal hearing the appeal.
However by virtue of Article 123 of the Constitution, as well as Rule 26 of the Court of Appeal
Rules 1979, a single Justice of Appeal may exercise any of the power vested in the Court of
Appeal not involving the determination of an appeal. This means that only the full Court of Appeal
either sitting as a panel of three Justices of Appeal or the full bench can determine an appeal
upon full hearing of the grounds of appeal and counter arguments by the respondent. References
to or hearings by a single judge would only concern applications for interlocutory orders during
the course of the proceedings. Interlocutory orders are provisional in effect and only deals with
preliminary rights aimed at either regulating the procedure of the court, or to maintain the status
quo of the parties pending the final and conclusive determination of the appeal on merits.
Under the Court of Appeal Rules 1979, every application shall be heard by a single judge except
for applications that are mentioned under rule 55(2) of the Rules. The excepted applications
include application for leave to appeal; or application for stay of execution; and application to
strike out a notice of appeal or an appeal.
If a single judge rejects any application that has been referred to him or her alone, the person
making the application is entitled under Rule 26 of the Court of Appeal Rules, to have his or her
application determined by the Court. Article 123(b) of the Constitution stipulates that, the Court of
Appeal may nullify or alter an order, direction, or decision of any kind made by a single Justice of
Appeal.
2.6.3 Jurisdiction of the Court of Appeal
The Court of Appeal of Tanzania has no original jurisdiction on any matter. The Court of Appeal
is a Supreme Court or a court, which handles final appeals on all matters arising from
subordinate courts. According to Article 117(3) of the Constitution, the functions of the Court of
Appeal are to hear and determine every appeal that is brought before it arising from the judgment
and other decisions of the High Court or of a magistrate with extended jurisdiction. A similar
provision is made under section 4 of the Appellate Jurisdiction Act, 1979 as amended.
Section 5(1)(a) and (b) of the Appellate Jurisdiction Act 1979 gives any person who is aggrieved
by any decree, and certain orders of the High Court, the right to appeal to the Court of Appeal.
An appeal to the Court of Appeal can only be on points of law i.e. a challenge that the judge did
not apply the law correctly or applied a wrong law.
In any appeal from the decision of the High Court acting in exercise of its original jurisdiction, the
Court of Appeal may under Rule 34(1) of the Court of Appeal Rules -
(a) Re-appraise the evidence and draw inferences of fact;
(b) In its discretion but for sufficient reasons, take additional evidence or direct that additional

evidence be taken by the trial court or by a commissioner; and

(c) Where the Court thinks fit, it may under Rule 35 of the same Rules, call for and receive from
the trial court, a report on any matter connected with the trial proceedings.
According to Rule 36 of the Court of Appeal Rules, in determining any appeal, the Court of
Appeal may, confirm reverse or vary a decision of the High Court or of a Magistrate with
extended jurisdiction. Alternatively the Court of Appeal may remit proceedings to the High Court
with such directions, as it may deem appropriate or order a new trial and make any necessary
incidental or consequential orders including orders as to costs.
The case of Shinyanga Regional Trading Co LTD & Another v. National Bank of
Commerce [1997] is one of the few reported banking cases that have been decided by the Court
of Appeal of Tanzania. The appellant in this case appealed against a decision of the High Court,
which had upheld a claim by the respondent against it relating to the sale of a godown. The
godown was among the properties listed in a debenture (a form of security discussed in Unit 17),
which had been issued by the appellants to secure an overdraft facility granted by the
respondent to the appellant. When the appellant failed to pay in time the respondents sold the
godown by public auction. Subsequent to that sale the appellant sold the godown to the second
appellant who alleged that he was a bonafide purchaser for value of the property. The trial judge
held that the sale and transfer of the godown to the second appellant was illegal because it was
contrary to the debenture and that the second defendant was not a bonafide purchaser as the
sale had been tainted by fraud.
On appeal to the Court of Appeal, it was held that the debenture had not been registered as
required by law and was therefore void. The court also decided that the respondents did not have
any power of sale and therefore sale of the godown by them was not valid. Therefore the
decision of the High Court was reversed and sale of the godown by the appellants to the second
appellant confirmed. (Further details on the case are given in Unit 17).
2.6.4 Revision Powers of the Court of Appeal
Prior to 1993, the Court of Appeal did not have powers to revise the decisions of the High Court
and Magistrates with extended jurisdiction. The Appellate Jurisdiction (Amendment) Act, 1993
No. 17 of 1993, was passed to confer on the Court of Appeal powers of review. Through that
amendment, section 4(2) of the Appellate Jurisdiction Act 1979 now gives the Court of
Appeal inter alia revisional jurisdiction. In exercising such powers the Court shall call for and
examine the records of any proceedings before the High Court so as to satisfy itself as to the
correctness, legality or propriety of any finding, order or any other decision and the regularity of
any proceedings of the High Court.
Subsection 4(5) provides that a single judge shall not exercise revision powers of the Court of
Appeal.

Learner Activity 3
Why cant a single judge exercise powers of revision?
SUMMARY

In this Unit we have examined the entire court system operating in Tanzania Mainland. We have
described the jurisdiction and the level of authority of each court. You have learnt that the court
system in Tanzania consist of four tiers i.e. Primary Courts at the lowest level, followed by District
Courts and Courts of Resident Magistrates all of which are referred to as subordinate courts.
Next in the rank is the High Court and finally the Court of Appeal of the United Republic of
Tanzania. We have seen that each court can only exercise jurisdiction which has been conferred
on it by law and that any matter that is determined by a court, which lacks jurisdiction over it, is
void and will therefore have no legal effect.

Learning Outcome
After studying this Unit it is expected that you are now able to:

• Understand the courts system in the country.

• Explain what is meant by a court’s jurisdiction.
• Understand the different category of courts’ jurisdiction.
• Determine which court has jurisdiction over a particular matter.