KALENGO v. BULA MANGI (1972) HCD 11

PC) Civ. App. 65-Dodoma-71; 7/2/72

Kwikima Ag. J.

The District Magistrate sent the records of five appeal cases which were brought under Part vi of the Law of Marriage Act. To High Court. He contended that by virtue of ss. 80(1) and 165(2) of the said Act that he was incompetent to determine them.

            Held: 

(1) “When taking this course of action I doubt whether the learned magistrate consulted his colleague the Resident Magistrate at Singida. Had he done so, the latter would not have failed to point out to him that the new Marriage Act was never intended to alter or affect in any way the way in which appeals are to be conducted. The Marriage Act does not expressly or implicitly purport to repeal, replace, amend or in any way effect a single provision of the Magistrate Courts Act which lays down the order of Courts through which appeals are to be taken. Section 80(1) and section 165(2) of the Marriage Act do not provide for appeals from primary courts to go directly to the High Court. Section 80(1) reads: “Any person aggrieved by any decision or order of Magistrate Court in a matrimonial proceeding may appeal there from to the High Court.” These words certainly do not mean that a Primary Court case will go straight to the High Court without the appeal being taken, first to the District Court as laid down in the Magistrates Courts Act ss. 16(1) and 21(1) which sections the Marriage Act has not misapplied in relation to itself. These two sections provide respectively that appeals from Primary Courts shall lie first to the District Court and then to the High court.” 

(2) “The learned magistrates interpretation o the sections he has quoted becomes more puzzling when s. 73 of the same Act (i.e. the Marriage Act) is read in conjunction with the section he has quoted. The section reads: ‘(1) A Primary Court shall have jurisdiction to entertain a suit under this part where the parties were married in accordance with the customary law or in Islamic form or, in the case of a suit under section 69 or section 71 if the court is satisfied that had the parties proceeded to marry they would have married in accordance with the customary law in Islamic form. 

(2) The Jurisdiction of the primary court under this section shall be concurrent with the jurisdiction of a district court a court of, a resident magistrate or the High Court as the case may be. This section repeats the same hierarchy of courts as is laid down in the Magistrates Courts Act. It does not set out to out the appellate jurisdiction of the District Court in any way.”