BAREGE 1 for tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA LAND APPEAL NO. 30521 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Geita in Land Application No. 05 of 2024 dated 25 October 2024 before E. Masao- Chairperson) BENSON NAHUM BAREGE------------------------------------------APPELLANT VERSUS CHARLES ALFRED KAMATA------------------------------------- RESPONDENT JUDGMENT Date of last Order: 16/01/2025 Date of Judgment: 13/02/2025 K. D. MHINA, J. This appeal traces its origin to Land application No. 05 of 2024 instituted by the appellant herein on 1 March 2024 in the Geita District Land and Housing Tribunal (“the DLHT”). According to the application, the allegations by the appellant were that on 9 September 2020, he entered a written sale agreement with the respondent. That sale agreement was for the unsurveyed land/ plot located at Kalifonia area within Katoro, Geita. The price agreed was TZS. 12, 000,000/=. The mode of payment agreed upon was for the respondent to 1 pay TZS. 10,00,000/= as the first instalment and the remaining TZS. 2,000,000/= after two months from the date of the agreement. The respondent paid TZS. 10,000,000/= as agreed but he failed to pay the remaining TZS. 2,000,000/= within the agreed period. After a follow-up, the respondent paid only TZS. 1,000, 000/= and refused to pay the remaining TZS. 1,000,000/=. The above “cause celebre,” as shown in the application, put the parties at issue; therefore, as alluded to earlier, on 1 March 2024, the appellant preferred his complaint in the DLHT and inter alia claimed the following reliefs against the respondent; i. The declaration that the respondent breached the conditions of the sale agreement dated 9 September 2020. ii. The declaration that the respondent’s act of breaching the conditions of the sale agreement dated 9 September 2020 breached the contract of sale for the plot located at Kalifonia area, Katoro Geita. iii. The order that the respondent should be refunded the amount of money already paid and vice versa, he should return the documents for the ownership of the plot. iv. The order that the respondent should vacate from the suit land. 2 In response to the application, the respondent countered it by raising the notice of preliminary objection with one ground, namely; i. That the application is not proper before the DLHT as it offends section 3 (1) of the Land Disputes Courts Act, Cap 216, for not being a land dispute. In its decision handed down on 25 October 2024, the DLHT delivered its Ruling by sustaining the preliminary objection. The appellant was aggrieved and filed the appeal. Therefore, the present appeal is against the decision of the DLHT dated 25 October 2024 following the DLHT sustained the preliminary objection raised, which marked the end of Application No. 5 of 2024 at the DLHT. He preferred six (6) grounds of appeal as follows; 1. The District Land and Housing Tribunal erred in law and fact in holding that no dispute of ownership of land. 2. The Trial Tribunal erred in law and fact when failed to hold that the dispute is not a parcel of land but a breach of contract of sale and disregarded the fact that a breach of contract 3 results in the land in dispute remaining in the hands of the appellant. 3. The Trial Tribunal erred in law and fact when failed to consider that the respondent’s breach of the sale agreement of land makes him not to be the owner of the land. 4. The Trial Tribunal erred in law and fact in holding that the appellant wants back the land while no dispute of invasion to land in dispute nor the respondent having occupied the land or the parcel of land has already been handed over to the respondent and failed to appreciate the fact that the appellant has not ceased to own the land in dispute for the respondent breach of the contract. 5. The Trial Tribunal erred in law and fact in holding that no claims of land but normal claims of civil and failed to acknowledge that the breach of contract goes to the very root of ownership of land in dispute. 6. The Trial Tribunal erred in law and fact when failed to hold that the act of the appellant to give the respondent documents relating to the ownership does not grant him ownership if fails to pay as agreed in the sale agreement. The appeal proceeded by way of written submissions, the appellant was unrepresented, while Mr. Vianney Mbuya, learned advocate, represented the respondent. 4 The appellant abandoned the 6th ground of appeal and argued the remaining grounds each one, separately. Faulting the trial DLHT’s decision in the first ground of appeal, the appellant submitted that it is the law that every dispute or complaint concerning land shall be instituted in the court having to determine land disputes in a given area as provided for under Section 3 (1) of the Land Disputes Courts Act [CAP 216 R.E 2019]. He explained that at the DLHT, the appellant had filed a complaint over ownership of a parcel of land located at Kalifonia area, Ludate ward in Katoro, within the District and Region of Geita. He stated that the appellant still owned the suit land despite having sold it to the respondent. That was because of paragraphs 3 and 4 of the sale agreement between the parties which clearly stated that the appellant would cease to own the suit upon payment of the balance of TZS. 2,000,000/=. Therefore, the appellant argued that from the terms and conditions of the sale agreement, it was clear that the respondent's failure to pay the remaining balance of TZS. 2,000,000/= as agreed caused the existence of a dispute of ownership between the appellant whose ownership exists and the respondent who assumes ownership, however, rebutted by paragraph 4 of 5 the sale agreement. Regarding the 2nd ground of appeal, the appellant submitted that it was so conspicuous that the breach of contract of sale of land by the respondent for the suit land be subjected to dispute. Had there not been the breach of contract of sale by the respondent concerning the suit land, there could have not been any dispute over the same parcel of land between the appellant and the respondent. Therefore, he argued that a dispute of ownership over a parcel of land between the appellant and respondent exists. On the 3rd ground, he argued that the respondent’s act of breaching the terms and conditions of the sale agreement over the parcel of land had deprived him of the right of ownership from 09 November 2020, the date of the breach. Therefore, he was estopped from assuming ownership while he knew that the appellant still owned the suit land. He substantiated his argument by citing the cases of Augustine Ayishashe vs. Sabiha Omar Juma, Land Case No. 279 of 2015- HC-Land Division (unreported) and Unilever Tanzania Ltd vs. Benedict Mkasa Trading as Bema Enterprises, Civil Appeal No.41 of 2009 -CAT (unreported). Supporting the 4th ground of appeal, the appellant the DLHT ignored 6 the fact that the respondent did not deny having been handed the documents relating to ownership of the land nor does not dispute having occupied the land immediately after purchasing it and upon the appellant having handed him the land and all documents for the land in dispute despite him having failed to accomplish full payments. As for the 5th ground, the appellant submitted that the DLHT failed to consider that the breach of the sale agreement goes to the very root of ownership of the suit land. He explained that paragraph 4 of the sale agreement was clear appellant would remain the owner provided the balance to the purchase price has not been paid. Further, the respondent did not dispute having failed to pay the balance, thus, the claims of ownership of land were inevitable as it was contractual that the appellant would remain the owner until final payment which efforts to get it proved futile before he had decided to take legal action. Responding to the 1st ground of appeal, Mr. Mbuya submitted that the issue in a dispute was based on a breach of contract, thus the proper forum was a normal civil court mandated to determine civil and contract cases. He explained that the application filed at the DLHT violated section 3 7 (1) of the Land Disputes Court Act [CAP 216 R.E 2019] which requires matters concerning land to be filed before Land Tribunals in a given area. He elaborated that the matter filed at the DLHT was not a land issue as the appellant used to refuse to receive from the Respondent the remaining balance of the sale agreement, TZS. 1,000,000/=. Countering the 2nd ground of appeal, he submitted that the DLHT was correct in its decision because the dispute was not over a parcel of land but a breach of contract of sale agreement. He explained that in deciding the matter, the DLHT relied on the facts pleaded and prayers of relief stated in the application tabled before it. Therefore, the reliefs prayed were subject to a normal civil court. He bolstered his argument by citing the cases of Camel Oil (T) Limited vs. Bahdela Company Limited, Land Case No. 104 of 2021, HC-DSM (Tanzlii) and Exim Bank (T) Limited vs. Agro Impex (T) Ltd and others, Land Appeal No. 29 of 2008. On the 3rd ground, he responded that the breach claimed to have been done by the respondent still required to be determined by a court with jurisdiction and not the land tribunals. 8 Further, the appellant received TZS. 1,000,000/= on March 2021 which was out of the agreed time i.e. on 9 November 2020, thus the act of the appellant receiving money out of the agreed time amended the contract itself. Also, the respondent was willing to pay the remaining. Commenting on the cited case of Unilever Tanzania (Supra), he stated that the cases were irrelevant to the matter at hand to the fact that the contract claimed to have been breached in the cited cases were different as it had a clause that if the payment would not be paid as agreed the advanced payment will be refunded to the party/buyer breached the contract. In the case at hand, in the instant matter, no such clause required the refunding of money to the respondent. As regards the 4th ground of appeal, Mr. Mbuya submitted that the DLHT was correct since the Appellant received one million out of the agreed scheduled time; however, also he refused to receive the remaining balance from the Respondent. Therefore, that suggested that the Appellant wanted back his land perhaps to sell it to another potential buyer at a higher price. On the 5th ground, he argued that the facts pleaded and prayers of the relief sought clearly 9 deprived the trial tribunal of having jurisdiction to entertain the matter. He explained that the Appellant misconceived interpretations of clauses 3,4 and 5 of the sale agreement. Therefore, the remedy to the Appellant was to exhaust remedies if any through normal civil court for the issue of the breach of contract despite the act of the Appellant refusing to receive the remaining balance. In rejoinder, the appellant reiterated what he had submitted earlier in submission in chief. He insisted that the epicentre of the dispute between the appellant and the respondent was a parcel of land located at Kalifonia, Ludate ward Katoro within the District and Region of Geita which the purchase price had not been paid in full according to the sale agreement. Having gone through the entire records of appeal and submissions by the parties, the main issue of controversy and determination is whether the dispute referred to the DLHT was a land dispute or not. Technically, the question is whether the DLHT had jurisdiction to entertain the matter or not. This is a complaint in the 1st ground of appeal. 10 Therefore, in determination of the appeal I will start with the 1st ground. For better deliberations, I will start by defining the term “jurisdiction”. The Court of Appeal in Commissioner General Tanzania Revenue Authority and another vs. Milambo Limited, Civil Appeal No. 62 of 2022 (Tanzlii), while borrowing a leaf from Halsbury's Laws of England, Vol 10, it defines the term jurisdiction as; ".the authority which a Court has to decide matters that are litigated before it or to take cognizance of matters prescribed in a formal way for its decisions. The limits of this authority are imposed by statute...under which the court is constituted and may be extended or restrained by similar means. A limitation may be either as to the kind and nature of the claim, or as to the area which jurisdiction extended, or it may partake of both these characteristics." Further, in Millicom Tanzania Nv vs. James Alan Russell Bell and Others, Civil Revision No. 3 of 2017 (Tanzlii), it was held that; “..jurisdiction is a creature of statute, the jurisdiction of the Court cannot be assumed or usurped”. Therefore, from above it is clear that courts (including land tribunals) in this country are created by statute and their jurisdiction is purely statutory. 11 Thus, as a trite principle of law parties cannot by consent to give a court jurisdiction that it does not possess. The question is where to find the points of law such as jurisdiction in a suit. On this, the law is clear that it must pleaded or arise by clear implication out of the pleadings, including the types of claims, cause of action and when it arose and reliefs claimed. See Salim. O Kabora vs. Tanesco and two others, Civil Appeal No. 55 of 2014 (Tanzlii). See also Hotels and Lodges (T) vs Attorney General and Chapwan Hotels Limited (2013) TLR 250. From above, from the appellant’s application filed at the DLHT, as alluded to earlier, the main reliefs claimed were; one, the declaration that the respondent breached the conditions of the sale agreement; two, the declaration that the respondent’s act of breaching the conditions of the sale agreement breached the contract of sale for the plot located at Kalifonia area, Katoro Geita; three, order that the respondent should be refunded the amount of money already paid and vice versa, he should return the documents for the ownership of the plot; four the order that the respondent should vacate from the suit land. 12 The reliefs were the result of the course of action which was the breach of contract of sale of land as indicated in paragraph 6 of the application. The next question is whether the course and reliefs claimed by the appellant before the DLHT constituted a land dispute or not. The term land dispute as defined by My brother Hemed J. in Said Mpoto and two others vs. Tanzania Zambia Railway Authority and five others, Land Case No. 162 of 2023 (Tanzlii) in the following words; “In its briefing paper on Land Disputes and Land Conflict of 2011, the USAID defined a 'land dispute' to involve conflicting claims to rights in land by two or more parties focused on a particular piece of land, which can be addressed within the existing legal framework. Therefore, for a dispute to be a land dispute, parties must be confronting each other on the question of ownership, usage, and or possession of a particular piece of land. From the above definition, it is imperative that, not every dispute that touches landed property will amount to land dispute unless it concerns with ownership, possessory and or usufructuary rights”. From the above definition and in assessing as to whether the dispute between the parties falls within the category of land disputes, it is clear that 13 the contents of the application include the reliefs claimed, indicate that the appellant did not claim for ownership, or the right to use or possess the land against the respondent herein. The claim and relief claimed indicate that the appellant’s interest was and is only for the breach of the sale agreement and that is why in his main reliefs claimed he requested the DLHT to declare that there was a breach of contract and order the refund of the amount of money already paid. Therefore, the DLHT was correct in holding that under section 3 (1) of the Land Disputes Court Act [CAP 216 R.E 2019], it had no jurisdiction to entertain the matter because it was not a land dispute. The matter before the DLHT was not a land dispute and the tribunal did not have the jurisdiction to entertain the same. The matter was a on breach of contract of sale agreement. Thus, the first ground of appeal is devoid of merits. Since the 1st ground of appeal disposed of the appeal, I don’t see the necessity of determining the remaining grounds of appeal because; One, the remaining grounds will not change the outcome of the decision. This is because the 1st ground which touches the issue of 14 jurisdiction of the DLHT is a decisive ground in the instant appeal. And the law is clear that the Court in determining the appeal may address the decisive ground only. See Malmo Montage Konsult AB Tanzania Branch vs. Margret Gama, Civil Appeal No.86 of 2001 (unreported). Two, the remaining ground raised complaints on the merits of the application while the matter at the DLHT was disposed of by way of preliminary objection on the issue of the jurisdiction. Therefore, it was improper to raise in an appeal the grounds on issues which were not heard and determined by the lower court or tribunal. Flowing from above, eventually, this appeal is dismissed for being devoid of merits with costs. It is so ordered. K. D. MHINA JUDGE 13/02/2025 15 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 13/02/2025 16 17