LECTURE NOTES ON CIVIL PROCEDURE I

DIPLOMA IN LAW I
STRUCTURE OF CIVIL COURTS IN
TANZANIA
Structure of civil courts in Tanzania

There are five civil courts in Tanzania, each of these

have different powers or jurisdiction as conferred by
different laws. These five courts are:
 The Special Constitutional Court Of Tanzania
 The Court of Appeal of Tanzania
 The High Court of Tanzania Mainland
 The Resident Magistrate Court and The District Court
 The Primary Court
 THE SPECIAL CONSTITUTIONAL COURT OF
TANZANIA

 Establishment
The Special Constitutional Court of Tanzania is established under
the Provisions of Article 125 of the Constitution of the United
Republic of Tanzania of 1977 (as amended from time time)
 Jurisdiction of the Court
The jurisdiction of the court is provided under the provision of
Article 126(1) of the Constitution. According to the Article the
special constitutional court has jurisdiction to hear matter or
dispute concerning interpretation and application of the
Constitution. This means the special court determines dispute
arising from application, interpretation or breach of the
constitutional provisions and if that dispute concerns or involves
the Government of Tanzania and the Revolutionary Government
of Zanzibar.
The Special Constitutional…
 The Nature of The Special Constitutional Court
The special court is not a standing court but a ad-hoc
court, ad-hoc court means this court is formed or
established when there is a need and it is dissolved
when the matter in dispute has been decided.
 Procedure and Manner of Operation of the
Court
Article 126(1) of the constitution provides for the
procedure and manner of operation of the court.
According to this Article the special constitutional
court operates as a tribunal or arbitration tribunal, this
means the court does not give decision in the basis of
winner takes and loser loose all instead the court
make decision on the basis of conciliatory decision.
The Special Constitutional…
 Composition of the Court
The special constitutional court is composed of
members as provided under Article 127 of the
Constitution. The number of members of the court
shall be determined or agreed by the two
Governments(Tanzania Mainland and Zanzibar).
Article 127(2) of the Constitution provides for the
qualification of the members of the special
constitutional court, according to this Article
qualification of members is the same as for one to be
appointed as Justice of Appeal or to be appointed as
the Judge of the High Court of Tanzania mainland or
the judge of the High Court of Zanzibar.
The Special Constitutional…
 Laws Applied by the Special Constitutional Court
Article 128(4) of the Constitution of the United Republic of
Tanzania requires the special constitutional court to use special
rules made by the parliament of the United Republic of
Tanzania and in absence of such rules the court may formulate
its own rules.
 Quorum and Decision making process of the Court

At any session of the special constitutional court the quorum

shall be all members of the special court as determined or
agreed by the two Governments and as appointed for that
purpose.
In case one or several members are absent for any
inconvenience then the Government which appointed such
member shall appoint another member to replace the absent
member(s)
The Special Constitutional…

In decision making the special court should follow the 2/3

majority to be the opinion or the decision as provided
under the provision of Article 128(2)(3) of the Constitution
and the decision of the special constitutional court is not
appealable.
 THE COURT OF APPEAL OF TANZANIA
 Establishment of the Court of Appeal
The Court of Appeal of Tanzania is established under the
provisions of Article 117(1) of the Constitution of the United
Republic of Tanzania,1977(as amended from time to
time).This court is the union matter as per the first schedule of
the Constitution of the United Republic.
 Jurisdiction of the Court of Appeal

The Court of Appeal of Tanzania has power or jurisdiction to

determine appeals from the decision of the High Court of
Tanzania Mainland and the High Court of Zanzibar. The
jurisdiction of the Court of Appeal is provided under the
Judicature and Application of laws Act(Cap 358 R.E
2002),The Appellate Jurisdiction Act(Cap 141 R.E 2002) and
The Court of Appeal Rules of 2009
THE COURT OF APPEAL…
The Court of Appeal is the most supreme court in Tanzania
and its decision binds all other court below it, but its
decision does not bind the special constitutional court.
The decision of the Court of Appeal is only challengeable
by filing reference either to the East African Court of
Justice(E.A.C.J) or the African Court of Justice
(A.C.J).The East African Court of Justice is established by
the East African Treaty,1999 (as amended) while the
African Court of Justice is established by the African
Charter on Human and People’s Rights.
Example of the decision of the Court of Appeal of
Tanzania which has been taken to the African Court of
Justice by way of reference is the case of Rev Christopher
Mtikila.v.Attorney General, Civil Appeal no 45 of 2009
 THE COURT OF APPEAL…
 Nature of the Court of Appeal
The Court of Appeal is a standing court, this means the Court
of Appeal is established at hand and it is always operational,
the Court of Appeal main registry is in Dar-es-Salaam,
however the Court of Appeal may conduct its Sessions
anywhere be it mainland Tanzania or Tanzania Zanzibar.
 Procedure and Manner of Operation of the Court of
Appeal
The Court of Appeal is an ordinary court of law, so its
procedure and manner of operation is like any other common
law courts, this court therefore makes its decision on the
basis of winner takes all and loser loose all, however, in the
case of Rev Mtikila the Court of Appeal seems to contradict
this rule as there was no win all or lose all (no verdict).
THE COURT OF APPEAL…

 Composition of the Court of Appeal

According to Article 118(1) of the Constitution, as
amended the Court of Appeal is constituted by the Chief
Justice and not less than four other Justices of Appeal. The
Chief Justice is appointed among the Justices of Appeal by
the President. The President also appoints other Justices of
Appeal after consultation with the Chief Justice. The full
bench of the Court of Appeal is however, constituted by
not less than five Justices of Appeal.
THE COURT OF APPEAL…

 Quorum of the court of Appeal

In exercising its appellate jurisdiction, the Court of Appeal
shall be composed of not less than three justices of appeal,
selected by the chief justice for the purpose, but there are
few circumstances where there can be five justices of appeal
in deciding one appeal. As for constitutional appeals, the
chief justice may direct that the appeal be heard and
determined by seven justices of appeal.
The court may also sit with amicus curiae(friends of the
court) who assists the court when the need arises (See
Arcado Ntagazwa.v.Buyogera Bunyabo(1997) TLR 242,
Attorney General.v.Rev Christopher Mtikila, Civil Appeal
no 45,2009,Court of Appeal of Tanzania(Unreported)
 THE COURT OF APPEAL…
The decision in the Court of Appeal is determined according
to the opinion of the majority and can be presided by one
justice of appeal in matters of hearing and determination of
applications, reference, review or revision. (See Article
122(2) and Article 123 of the Constitution. See also s. 4(3)
and (5) of the Appellate Jurisdiction Act. Together with rule
65,66 and 67 of the Court of Appeal Rules,2009)
 Laws Applicable by the Court of Appeal
 The Judicature and Application of Laws Act (Cap 358 R.E
2002)
 The Appellate Jurisdiction Act (Cap 141 R.E 2002)
 The Court of Appeal Rules,2009.
THE HIGH COURT OF TANZANIA

Establishment
The High Court of Tanzania is established under the
Constitution of the United Republic of Tanzania,1977 under
the provisions of Article 108(1)
Although the High Court is established under the
Constitution of the United Republic of Tanzania,1977 which
impliedly means Tanzania Mainland and Zanzibar, this
Court is not a union matter as Zanzibar has its own High
Court (See the case of Himid Mbaye.v.the Brigade
Commander (1984) T.L.R 294)
The High Court has divisions and registries, as it stand
currently there are three High Court divisions which are the
High Court(General division), the High Court(Labour
division) and the High Court (Commercial division).
THE HIGH COURT…
Apart from the divisions of the High Court, the court has
registries and as by now it has registries in Arusha, Mtwara,
Dodoma, Mbeya, Tabora, Sumbawanga and Iringa among
others.
The High Court(Labour division) is established by labour
institution Act, no 7,2004,the commercial division by the
High Court Registry Rules I961 as amended In 1999 and
2002 vide GN No 141 and GN No 131 respectively.
 Nature of the High Court of Tanzania

The High Court is the standing court, established at hand

and always operational through its divisions and established
registries. In practice the High Court is also known as the
Court of records, the practice originated from England in
which the High court was so considered.
THE HIGH COURT…
The sessions of the High Court are conducted according to
the registry and divisions, but the judges of the High Court
may move from one registry to another.
 Jurisdiction of the High Court

The jurisdiction of the High Court of Tanzania is provided

for under the provisions of Article 108(1) (2) of the
Constitution of the United Republic of Tanzania,1977 (as
amended) read together with section 3 of the Judicature and
Application of Laws Act (Cap 358 R.E 2002) hereinafter
referred to as JALA.
According to these provisions the High Court has unlimited
jurisdiction to hear and determine any matter except where
it is provided under the Constitution or any other law that
any specific matter shall first be heard and determined in
any other court.
THE HIGH COURT…

The High Court also has jurisdiction in respect of any

other matters which in accordance with legal traditions
and conventional practices, is ordinarily to be heard and
determined by the High Court. This power is enjoyed by
the High Court subject to the jurisdiction of the Court of
Appeal of Tanzania under the Constitution or any other
law.
Apart from the above the High Court has power to hear
and determine appeals from the subordinate courts,
review its own procedure, revise proceedings of the
subordinate court and determine references forwarded to
it by subordinate courts or any interested party.
THE HIGH COURT…
 Composition of the High Court
The High Court of Tanzania is composed of the Principal
judge and not less than thirty other judges, the principal
judges and the other judges of the High Court are appointed
by the president after consultation with the judicial service
commission, the same is provided for under Article 109(1)
(2) of the Constitution.
 Quorum of the High Court

The quorum of the High Court is determined by various laws

and depending on the nature of the matter before it. For
example when the High Court exercise its original or
appellate jurisdiction the High Court is composed of one
judge ,but in special circumstances the High Court may be
composed of three judges, when the High Court is composed
of three judges it is known as full bench.
THE HIGH COURT…

Laws Applicable in the High Court

The laws applicable to the High Court are provide for
under the provisions of section 2 of JALA, according to
this provision when the High Court hear and determine
matters of Civil nature it applies the Civil Procedure Code
Act (Cap 33 R.E 2002) and the substance of Common
law, Principles of Equity. The Statutes of General
Application and any other English law where the
circumstances of Tanzania permits.
 DISTRICT AND RESIDENT MAGISTRATE
COURTS
The District court and Resident magistrate court are established
under the provisions of section 4 and section 5 of the Magistrate’s
Courts Act (Cap 11 R.E 2002) respectively hereinafter to be
referred as the M.CA. The District and the Resident magistrate
courts are the courts of the same grade and they are known as
subordinate courts of the High Court of Tanzania.
Section 4(1) of the M.C.A establishes the District Courts in every
District of Tanzania mainland, the designation of the District
Courts is the District Court and have jurisdiction in the District in
which they are established
Section 5(1) of the M.C.A establishes the Resident Magistrate
Court, the court exercise its jurisdiction in such areas as may be
specified in the order published by the Chief Justice in the
Government Gazette.
 DISTRICT AND RESIDENT…
The designation of the Court of Resident Magistrate is that
specified in the order establishing it. The Chief Justice may, by
the order published in the Government Gazette, vary the
designation of the Resident Magistrates Court or of the area
within which that court may exercise jurisdiction.
Composition of the District and Resident
Magistrate courts
The District and Resident Magistrate courts are dully
constituted if they are presided over by a District magistrate
for the case of District court and the Resident magistrate in
case of the Resident Magistrate court, the same is provided by
section 6(1) (b) (c) of the M.C.A. But section 6(1) (b) of the
M.C.A, provides that only the Resident Magistrate can sit in
the Resident Magistrates’ court and in the District court.
DISTRICT AND RESIDENT…
But the District Magistrate cannot sit in the Resident
Magistrate Court (See John Agricola.v. Rashid Juma
(1990) T.L.R.1).Under section 6(4) of the M.C.A ,the Chief
Justice may direct two or more Magistrates of the same or
other appropriate description to hear and determine any
proceedings and in that case the decision of the court is
reached by the opinion of the majority magistrates and if
they are equally divided the proceedings shall be
dismissed as provided under section 6(5) of the M.C.A.
Assessors in the District and Resident
Magistrate Courts.
The District and Resident Magistrate Courts may sit with
assessors in any proceedings in which any rule of
customary or Islamic law is in issue.
 DISTRICT AND RESIDENT…
The District Magistrate or a Resident Magistrate who sits
with assessors are not bound by the opinion of those
assessors as provided under section 7(3) of the M.C.A.
The District and Resident Magistrates are only permitted to
sit with assessors when the courts conduct trials in their
original jurisdiction, in case these courts hear appeals for the
matter originating from the primary court the assessors are
not required the same was observed in the case of Dotto d/o
Rubera.v.Clement s/o Mhigi (1984) T.L.R.129 Where the
judge was of the opinion that if the District Courts while
exercising Appellate jurisdiction would be allowed to sit
with assessors, there was likelihood of the two sets of the
assessors those in primary court and those in District Court
to give different opinions on one and the same customary
law.
DISTRICT AND RESIDENT…
Language of the District and Resident
Magistrate Courts
The language in both District Courts and Resident
Magistrate Courts is either English or Kiswahili as the
Magistrate holding such Court may deem fit. However, the
records and judgment and/or order of the courts must be
written in English. But where the District courts or the
Resident Magistrates’ Courts exercise their Appellate,
revisional or confirmatory jurisdictions, the records and
judgment may be in English or Kiswahili, the same is
provided under the provisions of section 13(2) of the
M.C.A.
 DISTRICT AND RESIDENT…
According to the provisions of section 6 of JALA, the
District and Resident Magistrate Courts are required to
exercise their jurisdiction in conformity with the laws which
the High Court is required by the same Act to exercise
jurisdiction and with any other relevant laws.
From the provision of section 6 of JALA these courts are
allowed to exercise their civil jurisdiction by applying laws
which the High Court applies, except where expressly
provided by any law.
DISTRICT AND RESIDENT…

Place and sitting of the District and Resident

Magistrate Courts
These courts may be held at any place within its local
limits of jurisdiction, however, these courts shall not be
held at the place that is not regularly or customarily for
such purpose unless public notice has been previously
given of an intention to use the same for such purpose, as
provided under section 10(1) (2) of the M.C.A. (Read also
the case of Adam Mtemi.v.Petro Mwamtobe (1979) L.R.T
29)
THE PRIMARY COURT
Establishment
The primary courts are established under the provisions of
section 3(1) of the M.C.A.These courts are established in
every district and are the courts below the District and the
Court of the Resident Magistrates.
There are two categories of the Primary Courts, which are
the General division of the Primary Court and the Primary
Courts Commercial division.
The Commercial division of the Primary Court is
established by the rules of the court of the Primary, District
and Resident Magistrate Courts Registries Rules of 2008.
THE PRIMARY…
 Jurisdiction
The jurisdiction of the Primary Court is provided for under
section 3(1) of the M.C.A. According to this provision the
Primary Court have original jurisdiction to hear and determine
disputes arising from the District which it is established
The Commercial division of the Primary Court have
jurisdiction to hear and determine Commercial cases as
defined in the Rules and the General division of the Primary
Court has power to adjudicate general civil cases such as
matrimonial disputes, customary law contracts, guardianship,
Wakf, inheritance and tort arising out of customary or Islamic
laws.
Primary Courts have both original and Appellate jurisdictions
in civil matters originated from the ward tribunal which are
established under the Ward Tribunal Act (Cap 216 R.E.2002)
 THE PRIMARY…
Composition
The Primary Courts are dully composed if they are presided
over by one Primary Court Magistrate assisted by at least two
assessors in every session, the same is provided for under
section 6(1) of the M.C.A.These decision of the Primary Court
is reached by the opinion of the majority and if they are
equally divided the proceedings shall be dismissed as provided
under section 6(4) of the M.C.A.
 Quorum of the Primary Court
When the Primary Court hears and determine a civil suit, it
shall be presided over by one magistrate and at least two
assessors in every session. But in very few circumstances the
Chief Justice may direct that in one trial there are to be two or
more magistrates as provided under section 6(4) of the M.C.A.
THE PRIMARY….
Nature, Procedure and Manner of the Court
The Primary Court is a standing court established at
hand and operational. The Primary Court is the
ordinary court of law, therefore procedure and manner
of operation is the same as other ordinary courts of
law under Common law legal system and the decision
is on the basis of winner wins all and loser loses all.
 Laws Applicable in Primary Courts

In determining civil cases, while exercising original or

appellate jurisdiction the Primary Court applies The
M.C.A and the M.C.A (Civil Procedure in Primary
Courts) Rules of 1983 as procedural law and
Customary and Islamic laws as substantive laws.
QUASI-JUDICIAL BODIES
Apart from the five ordinary courts of law discussed, there
are other bodies or institutions which have jurisdiction to
determine civil matters.
These other bodies are established by various laws and are
taken as courts in civil matters and they are called Quasi-
Judicial Bodies.
Example of those bodies include but not limited to the
following
 The Commission for Mediation and Arbitration,
established under the Labour Institution Act, no 7,2004
 The Village Land Council and the Ward Tribunals which
are responsible to determine civil disputes arising from
land matters and they are established by the Land Act
and the Village land Act
QUASI
 The Ward Tribunal which is responsible to determine
petty civil disputes at the ward level and they are
established by the Ward Tribunal Act (Cap 216
R.E.2002).