H Nyalali, C.J., delivered the following considered judgment of the court:
This case has a long and chequered history. It commenced in the Urban Primary Court of Bukoba as Civil Case No 36 of 1972 in which the present appellant, namely Scolastica Benedict Katanyabile, I challenged the administration of the estate of her deceased husband, particularly in respect of a house on plot Nos 17 and 19
Block "D" in Bukoba township. The defendants in that case, namely Rose Benedict (the first wife of A the deceased), Donation Emmanuel and Dionizi Ngilileha (administrators of the deceased's estate) resisted the legal action on the ground, inter alia, that the primary court has no jurisdiction on the subject matter. The primary court overruled the defendants but they successfully appealed to the B District Court at Bukoba in Civil Appeal No 7 of 1974. This decision was confirmed by the High Court at Mwanza in a further appeal by the present appellant in (PC) Civil Appeal No 117 of 1976. The High Court, Lugakingira J, however granted the appellant `liberty to pursue her claim' either in the District Court or the High Court. C
Thereafter civil case No 12 of 1978 was instituted in the High Court at Mwanza but subsequently that court ordered that the case be filed in the subordinate court which had pecuniary jurisdiction over the subject matter of the suit. D
For reasons best known to the appellant, she apparently did not exercise the liberty granted to her by the High Court. Instead, the present respondent, namely Martin Benedict, one of the sons of the deceased, instituted a suit in the Court of the Resident Magistrate at Bukoba in civil case No 90 of 1981 seeking inter alia, to evict the appellant and her daughter (Methodia d/o Benedict) from the suit E premises. The trial court granted vacant possession to the respondent. The appellant and his daughter were aggrieved by that decision and they appealed to the High Court, in Civil Appeal No 14 of 1985. The High Court at Mwanza, B P Moshi J, dismissed the appeal in its entirety. The appellant, F but not her daughter, was again aggrieved by the decision of the High Court and she sought and obtained leave to appeal to this court. Hence the present appeal in which she is represented by Prof Fimbo, learned Advocate from the Legal Aid Committee of the University of Dar es Salaam. Mr G Rweyemamu, learned Advocate, appears for the respondent.
From the proceedings in this court and the courts below it is apparent that the following matters were established in the courts below. The appellant's husband, one Benedict Katanyebile died intestate in 1971. He was survived by two wives, and a number of sons and daughters. The appellant was his H second wife, whereas one Rose Benedict was his first wife. The deceased husband had nine children from his first wife, one of them being the respondent in the present case. On the other hand, the appellant bore him only a daughter, that is, Methodia d/o Benedict, who was a party to this case in the two courts below. I
A Furthermore, the deceased left to his heirs substantial property, including motor vehicles, farmland, cattle and houses. One of these houses is the subject of this case, and it is on plot Nos 17 and 19 Block "D" in Bukoba township. Its title is registered under the Land Registration Ordinance. The deceased's property was administered by two out of three administrators appointed by the B Urban primary court at Bukoba to administer the deceased estate. In discharging their functions, the two administrators distributed the property and the interests therein to the heirs in accordance with the guidance of the clan council, acting under Haya Customary Law. All the children of the deceased, C including the appellant's daughter, got their inheritance. The respondent was given, among other things, the house which is the subject of this case. This appellant's daughter was given, among other things, a farmland, including a house in need of some repair, at Kanoni Shamba. None of the widows D of the deceased inherited any property of the deceased, instead they were required to reside with and be maintained by their respective children according to Haya customary law. The appellant was thus required to reside with and be maintained by her daughter, Methodia d/o Benedict at Kanoni E Shamba. In consequence thereof, the appellant was further required to vacate the house which is the subject of this case, and in which she had been living with her deceased husband. She did not comply with that requirement and instead sought to reopen the matter of administration of the deceased's estate in the urban primary court at Bukoba in civil case No 36 of 1972 as already F mentioned.
The appellant's ground for refusing to hand over the house to the respondent and for appealing to us against the decisions of the two courts below boil down to three basic grounds, that is, firstly, that the Gprimary court under which the estate of the appellant's husband was administered had no jurisdiction over registered land. Secondly, that the transfer of title to the respondent was null and void, and thirdly and finally that the administrators appointed by the court erred in depriving the appellant of her matrimonial right of residence in the house of her deceased husband.
H The first point for consideration and decision in the case before us is a procedural one, and it is whether the decision of the Urban Primary Court of Bukoba, in the earlier administration proceedings, can be overturned in subsequent proceedings other than by way of appeal to or revision by a higher court. We think the answer is a double one. The first part of the answer relates to the primary court I itself. As a general rule, a primary court, like all other courts, has no
jurisdiction to overturn or set aside its own decisions as it becomes functus officio, after making its A decisions. That is why the proceedings subsequently instituted in the primary court by the appellant in civil case No 36 of 1972 above mentioned were faulted by both the District Court of Bukoba and the High Court at Mwanza. The only exceptions to this general rule includes the setting aside of B ex-parte decisions, and reviews of decisions induced by fraud or misinformation.
The second part of this answer relates to the courts above the primary court. Under the hierarchical scheme of the Courts' system in this country, a decision of a primary court can be overturned by a C court above in the course of appellate or revisional proceedings or in the rare case of judicial review (where no other remedy is available). The present case originated in the court of the Resident Magistrate as a suit for vacant possession, inter alia. It was not instituted as an appeal against or revision of the decision of the primary court. These proceedings therefore cannot give rise to a D decision overturning that of the primary court. This conclusion should not be treated as a technicality. It is based on the principle that the higher courts are not capricious and that the relationship between the lower and higher courts is orderly and judicious. E
Having come to that conclusion on the first point, we would have found it unnecessary to consider the question of jurisdiction of a primary court in administration of registered land, but for two reasons. Firstly, there is a conflict of views in the High Court on the issue, and secondly, we are satisfied that F our action will not overturn the decision of the primary court.
Unfortunately, this point of jurisdiction of a primary court in administration matters was not specifically considered and decided upon by the two courts in this case. We are grateful however to G Professor Mgongo Fimbo, learned advocate, for citing two precedents of the High Court which are relevant to the point. These are the case of Julitha Mwaisunga (1) and the case of Scolastica B Katanyabile (2). We are aware that there are other cases decided by the High Court in the same H way. These cases are currently the authority for the proposition that a primary court has no jurisdiction in administration cases involving registered land by virtue of the proviso contained in para (A) of s 14(1)(a)(i) of the Magistrates' Courts Act 1963, Cap 537, (now repealed and replaced by the provisions of s 18 of the Magistrates' Courts Act 1984). The contrary proposition was made by Mfalila J in the case of Munugwa Lutalamila and Two Others v Martha Lutalamila (3). Since the I
A present case was decided by the primary court before s 14 was repealed and replaced, and since most of the High Court precedents were decided during that period, it is appropriate to reproduce in full the relevant provisions of the Magistrates' Courts Act 1963, which deal with the jurisdiction, B powers, practice and procedures of primary courts. These are s 14 and s 15.
14(1) A primary court shall have and exercise jurisdiction -
(a) in all proceedings of a civil nature -
C (i) where the law applicable is customary law or Islamic law: Provided that no primary court shall have jurisdiction in any proceedings -
(A) affecting the title to or any interest in land registered under the Land Registration Ordinance; or
D (B) in which Islamic law is applicable by virtue of the provisions of the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance; or
(ii) for the recovery of civil debts, rent or interest due to the Republic, the Government or any municipal, town or district council, under any judgment, written law (unless jurisdiction therein is expressly conferred to a court or courts E other than a primary court), right of occupancy, lease, sub-lease or contract, if the value of the subject matter of the suit does not exceed two thousand shillings, and any proceedings by way of counterclaim and set off therein of the same nature and not exceeding such value;
F (iii) for the recovery of any civil debt arising out of contract, if the value of the subject matter of the suit does not exceed one thousand shillings, and any proceedings by way of counterclaim or set-off therein of the same nature not exceeding such value;
G (b) in all proceedings in respect of which jurisdiction is conferred on a primary court by the First Schedule to this Act;
(c) in all proceedings in respect of which jurisdiction is conferred on a primary court by any other law.
(2) The Chief Justice may, by order published in the Gazette, confer upon a primary court H jurisdiction in the administration of deceased estates where the law applicable to the administration or distribution of, or the succession to, the estate is customary law or, save as provided in ss (1) of this section, Islamic law.
(3) The Minister may, by order published in the Gazette, add to the First Schedule jurisdiction to administer or enforce any provision of any law which a district court has jurisdiction to administer I or enforce (other than any such provisions in respect of
which jurisdiction is conferred on a district court only when held by a civil magistrate), and may A amend or replace the same accordingly.
15(1) The practice and procedure of primary courts shall be regulated and, subject to the provisions of any law for the time being in force, their powers limited - B
(a) in the exercise of their criminal jurisdiction, by the Primary Courts Criminal Procedure Code;
(b) in the exercise of their civil jurisdiction, by the provisions of the Fourth Schedule to this Act, and, where the law applicable is customary law, by customary law insofar as it is not inconsistent with the provisions of the Fourth Schedule; C
(c) in the exercise of their jurisdiction in the administration of estates, by the provisions of the Fifth Schedule to this Act,
(2) Not relevant.
(3) Not relevant.
(4) Not relevant. D
It is clear that when these two sections are closely examined together, they make manifest not only the kinds of jurisdiction vested in primary courts but also, since primary courts, unlike the High Court, have limited jurisdiction, the species of that jurisdiction. From s 15(1) paras (a), (b) and (c), it is E evident that primary courts have three kinds of jurisdiction under the Magistrates' Courts Act, that is, firstly, a criminal jurisdiction, secondly, a civil jurisdiction, and thirdly, a `jurisdiction in the administration of deceased estates'. F
Section 14 on the other hand deals with the species of jurisdiction of the various kinds. Sub-section (1)(a)(i) of that section specifies certain proceedings of a civil nature. It is obvious that these fall within the second kind of jurisdiction manifested by s 15, that is, the Civil Jurisdiction of the primary court. Similarly, ss (1)(a)(ii) of s 14 specifies other matters for the recovery of civil debts, `. . . due to G the Republic, the Government . . .' It is obvious also that these fall within the scope of the second category or kind of jurisdiction of the primary court - that is, the civil jurisdiction. The same applies to the provisions of ss (1)(a)(iii). H
On the other hand, the provisions of s 14(1)(b) specify certain proceedings stated in the First Schedule to the Act. An examination of the contents of the First Schedule reveals matters which fall within the first general kind expressed by s 15 - that is, the criminal jurisdiction of primary courts. It I is apparent that by virtue of the provisions of s 14(1)(c), the Magistrates' Courts Act is not
A meant to state exhaustively all the species of jurisdiction vested in a primary court. Additional jurisdiction can be conferred by other laws as it was done under the Law of Marriage Act 1971.
It is also apparent that the Magistrates' Courts Act 1963 did not specify the particulars of the B jurisdiction provided under s 15(1)(c) - that is, the `jurisdiction in the administration of estates'. However, the Act empowers the Chief Justice to specify such jurisdiction under ss (2) of s 14. By order published in the Gazette as Government Notice No 320 of 1964, the Chief Justice did just that. Under rule 2 of that Order it was stated that:
C Every primary court shall have jurisdiction in the administration of the estate of a deceased person, if -
(a) the deceased, at the time of his death, had a fixed place of abode within the area of jurisdiction of the court; and
D (b) the law applicable to the administration or distribution of, or the succession to, the estate is customary law or Islamic and the estate is not one to which the provisions of the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance apply.
E It is evident from this order of the Chief Justice that all primary courts have been given jurisdiction in matters of administration of estates regardless of whether the subject matter is land registered under the Land Registration Ordinance provided the applicable law is customary law or Islamic law, F other than matters falling under the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance. This latter Ordinance has been extensively amended by the Marriage Act 1971 by removing all provisions relating to marriage and divorce, and retaining only provisions relating to G succession or inheritance of property belonging to non-Christian Asiatics. It follows therefore that, since the deceased estate in the present case is not one that falls within the exception stated under para (b) of the Order concerning non-Christian Asiatics, the urban primary court of Bukoba had jurisdiction to administer the estate in question, unless the Order made by the Chief Justice is ultra vires.
H Prof Fimbo canvassed the view before us that the Order of the Chief Justice is ultra vires to the extent that it confers jurisdiction over matters expressly excluded by the provisions of s 14(1)(a)(i)(A). With due respect to Prof Fimbo, we are satisfied that he is wrong. He seems to have failed to grasp the point that the entire provisions of ss (1)(a) deal only with the ordinary civil jurisdiction of the I primary court and excludes the jurisdiction in
administration of estates which is dealt with under a separate ss (2) of s 14. He also appears to have A failed to notice that the only estates excluded from the powers conferred upon the Chief Justice by ss (2) are those estates which, though subject to Islamic law, are within the provisions of the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance. This is apparent from the B expression used under ss (2) which reads, `where the law applicable . . . is customary law or, save as provided in ss (1) of this section, Islamic law'. The mere fact of registration of an estate under the Land Registration Ordinance does not therefore exclude it from the powers of the Chief Justice. It follows therefore that the Order published as Government Notice No 320 of 1964 is ultra vires and C valid. The position taken by Mfalila J in Manugwa Lutalamila (3) above mentioned is thus correct.
It must be pointed out for the avoidance of doubt that the subsequent extensive amendments to the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance in 1971 did not alter the D position regarding the estates of non-Christian Asiatics governed by Islamic law, since such estates are still expressly excluded by the Chief Justice's order. It must also be mentioned that ss 14 and 15 of the Magistrates' Courts Act 1963 have been replaced by ss 18 and 19 of the Magistrates' Courts E Act 1984, which repealed and replaced the former Act. No major changes were made by the relevant new provisions apart from deleting the proviso which appeared in para (B) of ss (1)(a) of the former Act, and adding another specie of jurisdiction vested in primary courts - that is jurisdiction `in all F matrimonial proceedings relating to Civil and Christian Marriages'. The effect of these changes are twofold. Firstly, by virtue of the deletion of the proviso above mentioned, matters which formerly fell within the scope of the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance ceased to be excluded from the ordinary civil jurisdiction of a primary court. As already pointed out, G this ordinary civil jurisdiction of a primary court, the scope of which was dealt with under para (a) of ss (1) of s 14 of the former Act (and is now dealt with under para (a) of ss (1) of s 18 of the Magistrates' Courts Act 1984) is separate from the special jurisdiction in the administration of H deceased's estates, the scope of which is definable by the Chief Justice, and has in fact been defined under Government Notice No 320 of 1964 mentioned earlier. Secondly, the new Act confers jurisdiction in matrimonial cases concerning civil and Christian marriages only. Other kinds of I marriage, such as Hindu marriages, are thus not covered by the Magistrates'
A Courts Act 1984. One has to look to the Law of Marriage Act 1971 for guidance on Hindu marriages as far as jurisdiction of primary courts is concerned in matrimonial cases.
The next important point for consideration and decision in this case is whether the appellant or the B respondent has a better title to possession of the premises in dispute. This is a crucial point, since in a suit for vacant possession, it is an elementary principle that as between the plaintiff and the defendant, the one who has a better title to possession prevails.
The respondent sued the appellant for vacant possession on the basis of a certificate of title C transferred to him under the Land Registration Ordinance as a consequence of the administration of his late father's estate. The transfer was endorsed in the Land Register. The appellant resisted the suit on the basis of a matrimonial right of residence which she had under Haya customary law. D Which then of these two competing titles is the better one? Section 33 of the Land Registration Ordinance provides, insofar as registered estates are concerned as follows:
33(1) The owner of any estate shall except in case of fraud, hold the same free from all estate E and interests whatsoever, other than -
(a) any encumbrances registered or entered in the land register;
(b) the interest of any person in possession of the land whose interest is not registrable under the provisions of this Ordinance;
F (c) any rights subsisting under any adverse possession or by reason of any law of prescription;
(d) any public rights of way;
(e) any charge on or over land created by the express provisions of any other law, without reference to registration under this Ordinance, to secure any unpaid rates or other moneys;
G (f) any rights conferred on any person under the provisions of the Mining Ordinance, the Mining (Mineral Oils) Ordinance, the Forest Ordinance or the Water Ordinance (other than easements created or saved under the provisions of that Ordinance);
H (g) any security over crop registered under the provisions of the Chattels Transfer Ordinance.
It is apparent that the title of the owner of a registered estate is paramount except in the instances stated under paras (a) to (g) of s 33. It follows therefore that the respondent's title will prevail in this I case unless the appellant's matrimonial right of residence is
one of the species of rights exempted under paras (a) to (g). It would seem that under the facts of A this case, the appellant's matrimonial right of residence falls under para (b) as an `interest of any person in possession of the land whose interest is not registrable under the provisions of this Ordinance'. This is so because a matrimonial right of residence is not a lease or estate which is B required to be registered under s 8 of the Land Registration Ordinance Cap 334. It follows therefore, that the respondent's title cannot prevail over that of the appellant in this case unless the appellant's matrimonial right of residence had ceased to exist at the time of filing the suit. C
Unfortunately for the appellant that is what appears to have happened. The matrimonial right of residence which she claims to have had, ceased to exist by virtue of the decision made by or on authority of the Urban primary court of Bukoba in the course of administering the estate of her late husband. As already mentioned earlier in this judgment, she was deprived of that right and required D to reside with her daughter at Kanoni Shamba. For reasons best known to herself, she did not appeal to the District Court against that decision; instead she sought to reopen the case in the same primary court as civil case No 36 of 1972. That course of action reached a dead end as both the E District Court and the High Court correctly overturned her action on appeal. She was advised by the High Court how to pursue her claim but she chose not to act on that advice. Eventually she found herself being sued by the respondent for vacant possession. Thus the decision of the primary court F remains legally binding and effective by choice of the appellant. Furthermore, we are satisfied that even if the appellant had properly challenged the administration of the estate of her late husband, she would not have succeeded, since her matrimonial right of residence upon death of her husband is G under customary law concomitant with her right to live with her children in a house of her deceased husband. It is so stated under Rule 66A the Customary Law Declaration Order 1963 published as Government Notice No 279 of 1963 and was applied to the Bahaya community by Government H Notice 605 of 1963. That customary rule states in Kiswahili:
Mjane anayo haki ya kumchagua ndugu mmoja wa marehemu na kuishi naye kama mume wake, au anaweza kudai kuishi na watoto wake katika nyumba ya marehemu na atakuwa mmojawapo katika jamaa ya marehemu I
A The relevant part is italisised by us for purposes of clarity. A free translation into English of that part reads as follows: `Or she may claim her right to reside with her issue in a house of the deceased, and thus become one of the deceased's kinsfolk.' Bearing in mind that under customary law, the residence of the issue of the deceased is determined to a great extent by rules of B inheritance, it follows that a widow who elects to reside with her issue, elects to reside where her issue are entitled to reside by rules of inheritance. In the present case, the appellant's daughter was entitled to reside at Kanoni Shamba and not in the house on plot Nos 17 and 19 Block `D' in Bukoba C township. The appeal before us cannot therefore succeed as it has no legal legs upon which to stand.
We thus dismiss the appeal in its entirety. Since this is a Legal Aid case, we make no order as to costs.
E
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