PC Civil Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA PC CIVIL APPEAL NO. 21 OF 2023 (Arising from Civil Appeal No. 5/2023 of Masasi District Court, Original Civil Case No. 53/2023 of Lisekese Primary Court) ASHA MAIKO ATHUMANI.......................................................... APPELLANT VERSUS RACHEL FLORIAN....................................................................... RESPONDENT JUDGEMENT 29th February & 27th March, 2024 MPAZE, J.: On 3rd August 2021, Rachael Frolian, the respondent in this case, filed a suit against Asha Maiko Athumani, the appellant, at the Primary Court of Lisekese ('the trial court'), claiming a total payment of Tshs 1,010,000/=. This sum included Tshs 700,000/= as reimbursement for the money she paid to the appellant as the purchasing price of a portion of land, and Tshs 310,000/= as construction costs she had incurred. i The trial court decided the matter in favour of the respondent and ordered the appellant to pay the respondent the claimed sum of Tshs 1,010,000/=. Displeased with the trial court's decision and subsequent orders, the appellant appealed to the District Court of Masasi (the first appellate court), arguing that the trial court lacked jurisdiction to hear and determine the case as the matter involved a land dispute. The appeal was dismissed because on the ground that the case filed in the trial court was not a dispute concerning land but rather a civil case arising from a breach of contract. Unsatisfied with this decision, the appellant decided to try her luck again in this court, complaining about the first appellate court's failure to observe that the trial court entertained the matter without jurisdiction. The appellant raised two grounds of appeal, and upon examining them, the court found that both of them challenged the jurisdiction of the trial court to entertain the matter without jurisdiction. During the hearing of this appeal, both the appellant and respondent appeared in person, without legal representation. 2 In support of her appeal, the appellant argued strongly that the primary court heard a case over which it had no jurisdiction, as the matter involved a land dispute and was not a civil case. The appellant explained that the cause of action of the entire dispute stemmed from the sale of land, thus questioning why the first appellate court failed to observe this. Therefore, she prayed this court to concede that the trial court heard the case without jurisdiction. Additionally, the appellant raised concerns about the trial court's failure to consider her evidence, which she claimed to have brought up before the first appellate court but was overlooked. She urged this court to address these complaints, stating that upon examining and analysing her evidence, it would become evident that the trial court lacked the jurisdiction to hear this case. With these arguments, she prayed that her appeal be allowed. Responding to the appellant's submission, the respondent vehemently argued that the case filed at the primary court was not a land dispute but rather a civil case. She explained that she initially initiated proceedings at the Ward Land Tribunal regarding the land issue, where it was determined that the appellant had wrongfully sold her the land. Subsequently, based on that decision, she obtained a letter and proceeded to file a civil case at the 3 primary court claiming for refund of the money she paid in purchasing the said land and the damages which she had incurred. Regarding the appellant's complaint that her evidence was not considered, the respondent countered by stating that the appellant's evidence and her witnesses were all considered by the trial court. She prayed the appeal be dismissed for want of merit. In her rejoinder, the appellant persisted in her request for her grounds of appeal to be allowed. The court has carefully considered the arguments presented by both parties. The central issue for determination in this appeal is whether the trial court had the jurisdiction to preside over this case. The undisputed facts in the case at hand are as follows; In the year 2013, the appellant sold a portion of land to the respondent for the price of Tshs. 700,000/=, which the respondent paid in full and subsequently began construction on the land. However, in 2018, it was discovered that the land was not owned by the appellant, leading to a dispute over its ownership. The matter was taken to the Ward Land Tribunal for resolution, but unfortunately, the tribunal failed to resolve it. Consequently, the tribunal 4 issued a letter advising the respondent to pursue her claim concerning the reimbursement for the money she paid to the appellant in the normal court. Acting upon this advice, the respondent filed the present matter before the Lisekese Primary Court. Based on these facts, the appellant argues that the dispute pertained to a land dispute, therefore alleging that the trial court lacked jurisdiction to hear this case. Conversely, the respondent contends that the issue at hand was not a land dispute but rather a civil matter, indicating that the trial court had jurisdiction to adjudicate upon it. It is a trite law that for a court to entertain any matter, it must first establish its jurisdiction, as it is through jurisdiction that the court obtains the authority to hear the case before it. This was stated in the case of Tanzania Revenue Authority v. Tango Transport Company Ltd, CiviI Appeal No. 84 of 2009, where it was emphasized; Jurisdiction is the bedrock on which the court's authority and competence to entertain and decide matters rests: 5 See also cases of Yohana Balole v. Anna Benjamin Malonqo, Civil Appeal No. 18 of 2020 (Both unreported), and Shyam Thanki and Others v. New Palace Hotel [1971] 1 EA 199 To determine whether the court has jurisdiction to hear the case before it or not, the case of Exim Bank (T) Ltd v. Agro Impex (T) & Others, Land Appeal No 29 of 2008, elucidated two criteria to consider, it said; 'Two matters have to be looked upon before deciding whether the court is clothed with jurisdiction. One, you took at the pleaded facts that may constitute a cause of action. Two, you took at the reliefs claimed and see whether the court has the power to grant them and whether they correlate with the cause of action In delving into the present case, the main consideration for ascertaining the court's jurisdiction hinges on whether the dispute in question constitutes a land dispute. The term 'land dispute' has not been explicitly defined in our land statutes. However, section 167 of the Land Act Cap 113 RE 2019 outlines the exclusive jurisdiction of courts dealing with land matters. It states; 6 ' The following courts are hereby vested with exclusive jurisdiction, subject to the provisions of this Part, to hear and determine all 'matters of disputes', actions and proceedings concerning land..! What constitutes 'matters of dispute' concerning land has not been expressly defined in the statute. However, in the case of Charles Rick Mulaki v. William Jackson Maqero, Civil Appeal No 69 of 2017, my brother Maige J, as he then was when confronted with the similar situation stated: 'Z/7 my opinion, matters concerning land would only cover proceedings for protection of ownership and/or possessory rights in land... He went further; ' In my view, therefore, the phrase any matter under the land in the context, should be given narrow interpretation to mean a dispute pertaining to a right on land or interest thereon' Again, in the case of Issa Hamad Kivina & Another v. Equity Bank Tanzania Limited, Land Case No. 237 of 2023 (Unreported), my brother L. Hemedi, J acknowledged the definition of a land dispute as 7 delineated in a USAD Paper titled 'LAND DISPUTES AND CONFLICTS' by John Bruce (March 2013), which provides that: 'Conflicting claims to rights in land by two or more parties, focused on a particular piece ofland, which can be addressed within the existing legal framework.' He proceeded that; 'It is also my firm view that for a dispute to be a land dispute', parties must be competing on ownership, possession or usage ofland. [Emphasis Added] Therefore, based on what has been stated in the cited cases above, it is clear that a land dispute is a conflict between parties competing for ownership, possession, or usage of land. To determine whether the claim involves a land dispute or not, one must examine the subject matter of the claim and the reliefs sought. By examining the case at hand and correlating it with what has been provided in the cited case above, to determine whether the instant case constituted a land dispute or not, it is indispensable to look at the claims brought by the respondent before the trial court. 8 In the primary court, claims are initiated through Form No. 2. It is within this form that one can discern the subject matter of the suit and the reliefs sought. For easy reference, the claim by the respondent as presented in the form is as follows: FOMU MADAI-2 HATI YA MADAI ' Mwaka 2013 Mdaiwa aiimuuzia Mdai kiwanja (hakijapimwa) kilicho Mtaa wa Mkadaenda kwa malipo ya Tshs 700,000/=, Fedha ambazo Mdai aiiiipa zote. Mwaka 2018 Mdai akabaini kiwanja hicho kina mgogoro wa umiiiki kali ya Mdaiwa na ndugu Amos Amiima ambaye anadai kiwanja hicho ni maii yake. Kiwanja hicho kimebainishwa si maii ya Mdaiwa na hivyo kinyume na makubaiiano hayo, hivyo mdai anadai kuiipwa pesa ya Manunuzi, gharama ya ujenzi na nafuu nyingine Mahakama itavyo ona inafaa kutoa Maii/kiasi/ kinachodaiwa. ...1, 100,000/= Looking the claims made by the respondent in the complaint Form above, it is patent that the subject matter of the suit was related solely to the refund of money paid to the appellant for the purchase of a parcel of 9 land. The respondent did not assert any claims regarding ownership, possession, or usage of the land. Instead, the respondent sought reimbursement of the funds expended on purchasing the land, along with associated costs, and requested court orders accordingly. The nature of the reliefs sought by the respondent indicates that the dispute in 'Shauri la Madai Na. 53/2021' (Civil Case No.53/2021) was not related to land. It would only have constituted a land dispute if, for example, the respondent had claimed ownership, possession, or usage rights over the land. In light of the claims lodged before the trial court, it is clear that the primary court of Lisekese, by section 18(l)(a)(iii) of the Magistrates' Courts Act [CAP. 11 R.E. 2019], possessed jurisdiction to hear the case. This provision confers jurisdiction upon the primary court to adjudicate all civil proceedings arising from contracts, provided that the value of the subject matter does not exceed thirty million shillings. Therefore, the appellant's contention that the trial court lacked jurisdiction is unfounded. In the upshot, the court finds that this appeal was filed without any iota of merit. Therefore, it is hereby dismissed with costs. io It is so ordered Dated st Mtwara this 27th March 2024. os Court: Judgment delivered in Mtwara on this 27th day of March 2024 in the presence of the appellant Asha Maiko Athumani and Rachel Florian ii