LAND CASE 12843 OF 2023 scanned

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO.12843 OF 2023 ATTILIO ANDREW KASUNGA (Adminstrator of the estate of the late Andreas James Kasuga)......................................... PLAINTIFF VERSUS TIB DEVELOPMENT BANK LIMITED..................... 1st DEFENDANT ATTORNEY GENERAL.......................................... 2nd DEFENDANT NATIONAL BANK OF COMMERCE LIMITED........ 3rd DEFENDANT RULING Date of Last Order: 28.11.2024 Date of Ruling: 13.12.2024 T.N. MWENEGOHA, J The 1st and 2nd respondents above named, raised a preliminary objection on point of law, that the Court lacks jurisdiction to entertain this case, as the Orders sought by the plaintiff are prerogative/administrative in their nature. Mr. Ayub Gervas Sanga, Learned State Attorney for the 1st and 2nd defendants, maintained that, the suit at hand is not a land matter owing to the nature of the Orders sought. It contravenes the provisions of section 3 of the Land Disputes Courts Act, Cap 216, R.E 2019 as well as section 167 of Land Act, Cap 113, R.E 2019. To cement his position, he cited the case of Sospeter Kahindi vs Mbeshi Mashini, Civil Appeal No. 56 of 2017, Court of Appeal of Tanzania, (unreported). He went on to argue that this suit is not, a land matter, i rather a commercial case, as it emanates from a commercial transaction. That, the plaintiff's interest is only for the money he paid to the defendants to the Court Broker as purchase price. Replying the submissions by Mr. Sanga, Advocate Abdiel Kitururu for the plaintiff maintained that, the objection raised lacks merits. He insisted that, the case at hand has its roots in a mortgage transaction, hence it is a land dispute as stated in National Bank of Commerce Limited vs Maisha Musa Uledi, Civil Appeal 501 of 2022, Court of Appeal of Tanzania (Unreported) and also the case of Michael Mwailupe vs. CRDB Bank Limited and Others, Land Case No. 7 of 2003 (HC) (unreported) quoted with approval by the Court of Appeal in National Bank of Commerce Ltd vs National Chicks Corporation Ltd & Others (Civil Appeal 129 of 2015, Court of Appeal of Tanzania, (unreported). Having considered their submissions, I have to proceed and determine the merit of the PO. The basis of the objection raised is on the powers of this Court to entertain the plaintiff's claims as presented at paragraph 4 of the plaint which reads as follows; - " The plaintiff claims against the 1st and 2nd defendants are for an Order compelling the 1st defendant to hand over the plaintiff Certificate of Tittle No. 25041, Plot No. 536, Block A, Sinza and for general damages to the tune of TZS100,000,000 (Tanzania Shillings one hundred million Only) for an unlawful retention of the said certificate and for costs of this suit' Looking at the above quoted claim, and how it is structured by the plaintiff, it reflects what Mr. Sanga claims. That is an Order to compel the 2 1st and 2nd defendants to hand over a Certificate of Title to the plaintiff. This, indeed is an administrative Order. Therefore, it cannot be issued by this Court as it not a matter a land Court has jurisdiction on. See Exim Bank (T) Limited versus Agro Impex (T) Limited and Two Others, Land Appeal No. 29 of 2008 as cited in the case of Charles Rick Mulaki versus William Jackson Magero, HC Civil Appeal No. 69 of 2017, High Court of Tanzania at Mwanza (unreported). In other words, the claims pleaded and the reliefs claimed are not within this Court to entertain and grant. Therefore, I allow the objection as it has merits. The case is struck out with costs. iMWENEGOHA. JUDGE, 13/12/2024 3