It is important first to have knowledge on the concept of jurisdiction of the court in

general before dealing with the jurisdiction of the High court. The term jurisdiction of the

court has been defined by different authors differently to mean the same concept.

Jurisdiction of court means the extent to which, or the limits within which, a particular

court can exercise its powers and what powers. These limits may be territorial or

pecuniary or as may be prescribed by statutes or practice.1

According to Mulla, the term jurisdiction of court means the extent of the authority of a

court to administer justice not only with reference to the subject matter of the suit but also

to local and pecuniary limits of its jurisdiction.2

Courts in Tanzania are arranged in a simple and clear hierarchy containing superior

courts and subordinate courts.3 These courts are established by two different laws that

includes; The Constitution of the United Republic of Tanzania 1977,4 as amended

from time to time and the Magistrate Court Acts 1984.5

The question of jurisdiction is not merely one of form. It is fundamental. Any trial

conducted by a court with no jurisdiction to try the same will be declared a nullity on

appeal or in revision.6

Therefore jurisdiction of the High court is the power of the High court to administer

justice or to decide and determine matters referred to it either by way of appeal from

1 B.D, Chipeta, (2002), Civil Procedure in Tanzania, A student’s Manual. at page 5.2 Mulla’s Code of Civil Procedure, at page 125. Shivji also define the term jurisdiction as the power of the court. 3 http://www.nola.org .tz/legal/legal systems.php. (Accessed on 20/12/2010 at 8:30) 4 [CAP 2 R.E 2002]5 [CAP 11 R.E 2002]6 It was discussed in the case of Melisho Sindiko .v. Julius Kaaya (1977) L.R.T. no.18

lower courts, or instituted in it. The High court of Tanzania is established under Article

108(1)7. It is the predecessor to the High court of Tanganyika and later on Tanzania

which was established under Article 17(1)8

In order to come with the answer as to whether the High Court of Tanzania has unlimited

jurisdiction one need to look on the jurisdiction of the High Court particularly in terms

original jurisdiction, pecuniary jurisdiction, territorial jurisdiction and exclusive

jurisdiction.

The High court of Tanzania has vested with unlimited jurisdiction over civil and criminal

matters by virtue of Article 108(2)9, this section provides inter alia that, ‘’where this

Constitution or any other law does not expressly provide that any specified matter shall

first be heard by a court specified for that purpose, then the High Court shall have

jurisdiction to hear every matter of such type. Also section 2(1)10, provides that, ‘’save as

provided hereinafter or in any other written law, expressed, the High Court shall have

full jurisdiction in civil and criminal matters.

According to these provisions it means that in absence of express provision of the

constitution or any other law of the land giving exclusive jurisdiction to other court or

tribunal to try and determine particular matters, the High Court shall have unlimited

jurisdiction to try and determine all matters in Tanzania.

In the case of Northern Tanzania Farmers Coop Society Ltd .v. Shelukindo,11 the

court held that, ‘’the High Court is an organ deriving its establishment and existence by 7 The Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E 2002]8 Tanganyika Order in Council of 19209 Op cit no 410 The Judicature and Application of Laws Act [CAP 358 R.E 2002]11 (1978) LRT part III &IV at page 36.

the operation of the Constitution of this country. This organ unless otherwise expressly

restricted by the legislature has unlimited criminal and civil jurisdiction, pecuniary and

territorial jurisdiction apart from the Court of Appeal, it is the highest Court for the

administration of justice in this country’’.

Also in the case of M/S Tanzania –China Friendship Textile Co. Ltd .v. Our Lady of

the Usambara Sisters,12 it was stated that ‘’the High Court of Tanzania is provided that,

it has unlimited jurisdiction , this is by virtue of section 2(1) of the Judicature and

Application of Laws Act also under Article 108(2) of the Constitution of the United

Republic of Tanzania’’.

Relying upon the above cited provisions and cases one may argue that the High Court of

Tanzania has unlimited jurisdiction over all matters, however this assumption is not

correct because the Constitution itself and other laws expressly excluded the High Court

to hear and determine certain matters as hereunder discussed:-

Section 1313, requires cases to be instituted in the court of lowest grade competent to try

it, thus where the High Court has the same jurisdiction with lower court the suit is to be

tried by the lower court. However this section does not deprive the jurisdiction of the

High Court.14

Matters arising under the Industrial Court Act,15 All disputes which arises under the

Industrial Court Act shall be heard and determined by the Industrial Court of Tanzania.

Section 3 of that Act defines "Court" as means the Industrial Court of Tanzania

12 Court of Appeal of Tanzania, Civil Appeal No 84 of 2002 (Unreported)13 The Civil Procedure Act [CAP 33 R.E 2002]14 In the case of Francis Mwijage.v. Boniface Kabalameza (1968) HCD 341, the court stated that section 13 however, is a rule of procedure not of jurisdiction and does not deprive higher courts of jurisdiction which they already possess.15 [CAP 60 R.E 2002]

established by section 16 and section 16(1)16 of the same Act provides there is hereby

established an industrial court to be known as the Industrial Court of Tanzania which

shall, subject to this Act, have jurisdiction in respect of matters specified in subsection

(2), and subsection 2(a) of that section provides that the Court shall have jurisdiction–to

hear and determine any trade dispute referred to it under the provisions of this Act. This

is supported in the case

Therefore this law limits the original jurisdiction of the High Court to hear and determine

matters of labour nature.

In the case of Tambueni Abdallah & 89 others .v. National Social Security Fund,17

the court held that, ‘’All disputes, whether contractual or otherwise including redundancy

between an employee or employees and the employer are trade disputes and therefore

only the industrial court has original jurisdiction. The High Court cannot entertain

them’’.

Partition for avoidance of presidential election, the Constitution of the United

Republic of Tanzania of 1977,18 provides that, ‘’when a candidate is declared by the

Electoral Commission to have been duly elected in accordance with this Article, then no

court of law shall have any jurisdiction to inquire into the election of that candidate.

According to this provision even the High Court of Tanzania have no jurisdiction to hear

and determine the matters or cases involving the avoidance of presidential election after

the Electoral Commission has been declared the candidate to be the president.

Matters concerning the interpretation or application of the Constitution of the United

Republic of Tanzania,19 where there is the dispute concerning the interpretation of the 16 Ibid17 Court of Appeal of Tanzania at Dar es salaam Civil Appeal No.47/2003 (Unreported)18 Article 41(7)19 Of 1977

Constitution of the United Republic of Tanzania20 or its applications between the

Government of the United Republic and the Revolutionary Government of Zanzibar, the

High Court of Tanzania has no power to inquire into and decide the matter thereto.

There is a special body established under the Constitution to deal with Constitutional

matters or disputes between the union Governments, this body is known as the Special

Constitution Court of the United Republic.21

According to Article 12622 of the Constitution of the United Republic of Tanzania, the

sole function of the Special Constitution Court of United Republic of Tanzania is to hear

and give a reconciliatory decision over a matter referred to it concerning the

interpretation the Constitution, where such interpretation or its application is in dispute

between the Government of the United Republic and the Revolutionary Government of

Zanzibar.

Matters arising the Workers Compensation Act.23 Further more the High Court of

Tanzania has no original jurisdiction to hear and decide matters arising the Workers

Compensation Act24. All disputes which are found or arise under the Workers

Compensation Act25, are adjudicated by Labour officer and appeal there from lie to the

High Court. Thus this statute confers exclusive original jurisdiction to the Labour

Administrative Officer to adjudicate matters out of the Workers Compensation Act 2008,

hence limits the High Court’s original jurisdiction over that matters though it confers to

the same the appellate jurisdiction.

20 Ibid21 The Special Constitution Court is established under Article 125 of the Constitution of the United Republic of Tanzania of 1977 [CAP 2 R.E 2002]22 Sub Article 123 Of 200824 Of 200825 Ibid

Therefore relying on the above observations and authorities it is my view that the

unlimited jurisdiction of the High Court exist only where there in neither the provision of

the Constitution nor of any other law which expressly confers exclusive jurisdiction to

other Court or Tribunal to hear and determine particular matters, thus the unlimited

jurisdiction of the High Court of Tanzania is not absolute as it may be waved or limited

in some cases or matters.

MZUMBE UNIVERSITY

(MBEYA CAMPUS)

FACULT OF LAW

NAME OF STUDENT: MUHONI JAMES. E

REG. NO. 1088/T.08

COURSE: LLB III

SUBJECT: CIVIL PROCEDURE LAW I (LAW 324)

LECTURER: MR. OMARY

ACTIVITY: INDIVIDUAL ASSIGNMENT

QN. The understanding of article 108(1) & (2) of the constitution of the united Republic of Tanzania of 1977 [CAP 2 RE 2002] is that it establishes the High court of Tanzania and it provides for its jurisdiction. According to this article the said High court of Tanzania has unlimited jurisdiction whatsoever… section 2 (1)) of the Judicature and application of laws Act [CAP 358 RE 2002] reiterates the same conception (Source anonymous). Critically show wide in the mark of the novelist of this preposition.

BIBLIOGRAPHY

STATUTES

The constitution of the United Republic of Tanzania 1977

The Judicature and Application of Laws Act [CAP 358 R.E 2002]

The Civil Procedure Act [CAP R.E 2002]

The Industrial Court Act [CAP 60 R.E.2002]

BOOKS

Bakshi, P.M, Mulla’s on Code of Civil Court Procedure,(1996),(15th), Vol 11, N.M,

Tripathi Private Ltd, Bombay.

Chipeta.B.D, (2002) Civil Procedure in Tanzania: A Student’s Manual, Dar es Salaam,

University Press Ltd, Dar es Salaam: Tanzania.