JURISDICTION
Is the power to hear and determine matters which are litigated before a tribunal. Jurisdiction is a
question of law a creature of statute example in Tanzania the High Court is established by the
Constitution and the subordinate courts are established by the magistrate’s court act, no. 2 of
1984. Jurisdiction is determined before the beginning of the proceedings and also Section (13) of
the Civil Procedure Code provides that every suit should be instituted in the Court of the lowest
grade competent to try it1. But also Jurisdictions means that authority conferred by the statutes or
some other instruments to the court or tribunal or a person, to determine or inquiring into the
case of a particular kind2 this can be stated that the power or mandatory given to the court to hear
and to decide a case this power is being given by the law and also it only the law have the to give
court jurisdiction. In the case of Merisho Sindiko vs Julius kaaya3 The court had the following
to say on jurisdiction If a case is designated for a particular court, then it should be heard only
by a member of that court, notwithstanding that a member of other court has a substantive
jurisdiction over the civil case and could hear it. Also in the case of John Agrikora vs Rashidi
Juma4 The High court had this to say Lack of jurisdiction in presiding magistrate is fundamental
defect that is not curable (Emphasis is mine) What happened in the case of John Agrikora
(Supra) was that, senior district magistrate has presided the case in the court of Resident
magistrate, And in appeal this was noted to be fatal and the whole proceeding was nullified. At
this point, it is worthy to note that jurisdiction is not a result of agreement between the parties
maybe that the parties may agree to send their case in resident magistrate, but it is the existing
laws that determine which court has the jurisdiction to adjudicate the matter.
Subject Matter Jurisdictions; subject matter of the suit means property, object or situation
which is in dispute between the parties to the suit, therefore the subject matter jurisdictions mean
the jurisdictions of the particular court to have the power or authority adjudicate civil suits over
or involving particular types of object, situation or property. The subject matter jurisdictions are
also known as the statutory jurisdiction of the court of law. 5 Sometimes a statute may exclude
jurisdiction of certain courts and vest jurisdiction on specific grade of courts. For example, cases
arising out of housing rents are tried by Magistrates Court or workmen’s compensation
1
CPC
2
Ommy
3
(1977) L.R.T case no 18
4
(1990) TLR 1
5
Ordinance are exclusively to be filed in district courts. What is important is that statutes casting
the jurisdiction of civil courts must be very strictly construed so as to avoid placing cases in
administrative tribunals.
MAIN DISCUSSION
The following are the reasoned on subject matter jurisdiction of the court
Primary court; it has a subject matter jurisdiction on all matters involving customary or Islamic
law. For instance, marriage issues, succession/inheritance. It provided under section 18(1)(a) (i)
of the Magistrates’ Courts Act,6 where the law applicable is customary law or Islamic law;
provided that no primary court shall have jurisdiction in any proceedings of a civil nature
relating to land. Also the civil suits arising from customary or Islamic law are adjudicated by the
primary courts irrespective of value of subject matter but subject to two major limitations, the
first limitation is if the case has a legal and technique complicity beyond the competence of the
primary court, in the case of Zacharia Milalo vs Onesmo Mboma.7 And the second is if the
jurisdiction of primary court is expressly taken away by statute, for example section 4(1) of the
Land Dispute Court Act of 2002,8 abolishes the court established by the Magistrate Court Act. In
this way therefore, where there is civil land dispute held under customary or Islamic laws, the
primary court has no jurisdiction over such matter
District court & Resident Magistrate Court; it has no jurisdiction over civil dispute for the
registered and unregistered lands, the suits against central government are instituted in the High
court as the court of first instance, irrespective of amount of money claimed or involved. This is
shown on section 7 of the government proceedings Act. 9 The suits for statutory defamation are
adjudicate by subordinate court are the court of first instance.
High court; another court have the subject matter jurisdiction is high court of mainland
Tanzania, the high court has the jurisdiction to hear and decide the case involved by the land
6
(Cap 11 R.E 2019)
7
(1983) TLR 240
8
(CAP 216 R.E 2002)
9
(Cap 5 RE 2019)
dispute and other subject matter, for instance in the case of Abdul Rahim Shadhili as guardian
of Miss Fatuma A.R Shadhili vs Mandar Govind Raykar 10, the plaintiff sued the defendant in
district court of kinondoni for allegedly breach of agreement of sale of premise. The defendant
raised preliminary objection that the trial court had no subject matter jurisdiction as the suit
involved land dispute and according to section 4(1) of the land disputes court Act of 2002, 11
magistrate’s courts established by the magistrate’s courts Act had no jurisdiction to entertain the
matter. On hearing the appeal, the appellant argued that the subject matter of the suit was land
and so the trial court lacked jurisdiction.
The court of appeal ;
10
Civil appeal no .296 of 2004, High court of Tanzania at Dar es salaam (unreported)
11
(CAP 216 R.E 2002)
