camilla israel lema vs abdallah h ukwaju 2022 tzhclandd 12511 31 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 30 OF 2022 CAMILLA ISRAEL LEMA PLAINTIFF VERSUS ABDALLAH M. UKWAJU (Administrator of the Estate of the iate MTUMWA UKWAJU) I®'' DEFENDANT SALEHE MTUMWA UKWAJU 2"" DEFENDANT KAM COMMERCIAL SERVICES DEFENDANT Date of Last Order: 06.09.2022 Date of Ruling: 31.10.2022 RULING V.L. MAKANI.J. Simultaneously, with the filing of their Joint Written Statement of Defence, the defendants raised the following preliminary objections: 1. This court has no exclusive jurisdiction to hear and determine the suit because it is nota iand matter. 2. This court has no pecuniary jurisdiction to hear and determine the suit. 3. The matter is res-judicata with Land Application No. 3of 2009 at Kinondoni District Land and Housing Tribunal. The preliminary objections were argued by way of written submissions and the defendants were represented by Bumi Fred Mwaisaka, Advocate who gave a brief background of the case. He said there was a case between the parties on ownership of Plot No. 584 Block A, Mbezi High Density (the suit property) which was allocated to one Mtumwa Ukwaju the father of the P' defendant at the Kinondoni District Land and Housing Tribunal. The Tribunal declared the P* defendant the owner of the suit property. He said the plaintiff was aggrieved and filed an appeal to this court which was dismissed, and the matter was returned back to the Tribunal for execution of the decree. At the Tribunal the plaintiff was evicted from the suit land and the house therein was demolished. The plaintiff has failed to adhere to the eviction notice hence the suit herein. As for the first objection he said the jurisdiction of land cases is provided for under section 167(1) of the Land Act CAP 113 RE 2019 and section 3(1) and (2) of the Land Disputes Courts Act CAP 216 RE 2019 the High Court Land Division is mandated to hear and determine land matters exclusively. He said the suit at hand is a compensation suit and not a land matter because the reliefs prayed, that is, the declaratory ordes, punitive and general damages are not land in nature. The plaintiff is not claiming for ownership or possessory rights over land but rather for compensation for eviction and demolition of the house built by her without having any ownership documents. He said ownership issue was a subject matter in Land Application No. 3 of 2009 at the Tribunal where the 1=' defendant was declared the lawful owner. He said the eviction arising from eviction and demolition of the house is valued at TZS 94,000,000/=. He said this amount does not fall under the jurisdiction of the High Court which entertain suits with value exceeding TZS 300,000,000/= (section 37(1) of the Land Disputes Courts Act). He said the plaintiff has included the value of the properties in addition to the value of the house which is not proper in terms of the case of Shamshudin Kassam vs. Equity Bank (Tanzania) Limited & 3 Others, Land Case No. 11 of 2021 where it was stated that what determines the jurisdiction of the court is the land together with the affixtures. Chattels and personal belongs are not attached to land therefore its value cannot be Included In the subject matter. He said pecuniary jurisdiction is determine by special damages not general damages. So a suit is supposed to be filed in the lowest court competent to determine the matter. He cited the case of Tanzania-China Friendship Textiie Company Limited vs. Our Lady Sisters of Usambara [2006]TLR 70. Mr. Mwaisaka said the matter Is res judicata as per section 9 of the CPC because the subject matter is the same that is the suit land who the 1®' defendant was declared the lawful owner. He said the parties are the same except the 1"'^ defendant who is one of the heirs of the late Mtumwa Ukwaju. He further pointed out the suit at the Tribunal was heard and finally decided and the plaintiff appealed to the High Court where the appal was dismissed for lack of merit, he said the issue of compensation which has been raised is on the same subject matter. He said this present suit is res judicata and it is a repetition. He said that the rationale of res judicata is muitipiicity of suits and finality of litigation which was stated in the case of Paniel Lotha vs. Tanaki & Others [2003] TLR 312. He prayed for the suit to be dismissed with costs. Ms. Prisca Chogero filed submissions in reply on behalf of the plaintiff. She said the objections do not meet the landmark case of Mukisa Biscuits Manufacturing Company Limited vs. West End Distributors Limited (1969)EA 696. As for the first objection the court has no exclusive jurisdiction to hear and determine the suit because it is not a land matter. She said there is nowhere in the plaint the plaintiff is admitting that the disputed property belongs to any of the defendant. She said one of the Issues in dispute is ownership of the property in dispute by virtue of paragraphs 6,23,24,26,27 and 28 of the plaint, and as well as paragraphs 2,3,4,5,6 and 8 of the Written Statement of Defence. He said the objection lacks the essential qualities of being termed as an objection on a point of law. Ms. Chogero said Counsel has failed to differentiate special damages from general damages as shown in the plaintiff. She said the special damages in the plaint exceeds the pecuniary value of this honourable court. She pointed out section that 33(2)(b) of the Land Disputes Courts Act which is more relevant to this case which states that in other proceedings the subject matter is capable of being estimated at money value not exceeding TZS 200,000,000/= is vested to the High Court. He said the issue of demolition the value of properties damage during eviction is a matter of fact which cannot be disposed as a preliminary objection in terms of Mukisa Biscuits case. As for res judicata she said there 5 principles which must co-exist as stated in th case of Linda Christopher (suing as administratix of the Estate of Specioza Patrick vs. Dickson Majaiiwa & 5 Others, Land Case No. 85 of 2021 (HC-Land Division) (unreported) which quoted the case of Yohana Dismas Nyakibari & Another vs. Lushoto Tea Company Limited & 2 Others, Civii Appeai No.90 of 2008 (unreported). She said In the previous case the claim was on ownership of the suit land while In this case it Is compensation of illegal eviction and demolition. She said even said the parties are not the same so the issue of res judlcata cannot stand he prayed for objections to be dismissed. In rejoinder submissions Mr. Mwaisaka reiterated the submissions In chief. I have gone through the rival submissions by the parties herein and the main Issue for consideration is whether the objections raised have merit. I would wish to first clear on whether the objections raised are matters of law or facts which need ascertainment. The first and second points of objection are issues on jurisdiction which in my view is a matter of law. The third issue is on res judicata which is also a matter of law and thus falls within the ambit of the landmark case of Mukisa Biscuits' case. I have gone through the plaint, and it is apparent that the complaint by the plaintiff is compensation on illegal eviction and demolition of the house at the suit property. The plaintiff is claiming for the house demolished and the valuables that were in the house. Ms. Chogero's argument is that this is not an ownership matter but rather on compensation which fails under section 33(2)(b) of the Land Disputes Courts Act of which the pecuniary jurisdiction is TZS 200,000,000/= On the other side Mr. Mwaisaka points out that this matter is below TZS 300,000,000/= the pecuniary jurisdiction of this court is on recovery and possession of the suit land under section 37(l)(a) of the Land Dispute Courts Act. Ms. Chogero's argument is misdirected as section 33 of the Land Dispute Courts Act deals with jurisdiction of the District Land and Housing Tribunal. The provision that deals with jurisdiction of the High Court is Section 37 of the Land Dispute Courts Act which states: "37.-(l) Subject to the provisions of this Act, the High Court shaii have and exercise originaijurisdiction: (b) in proceedings for the recovery ofpossession of immovable property in which the value of the property exceeds three hundred million shillings; (b) other proceedings where the subject matter capable ofbeing estimated at a money value In which the value of the subject matter exceeds two hundred million shillings..." If Ms. Chogero meant to refer her arguments to section 37(l)(b) of the Land disputes court Act still her arguments are misplaced. I say so because paragraph 5 of the plaint and the reliefs suggest that there Is a claim of recovery of the suit property and not only compensation as alleged. The plaintiff Is claiming that the eviction and demolition were Illegal. In other words, If the court for Instance grants the orders prayed for by the plaintiff, It means the Issue of ownership would also be In question. In essence therefore, this suit does not fail In "any other proceedings" as suggested by Ms Chogero, but it Is a claim for recovery and repossession of the house on the suit land. Subsequently, the claim falls within section 37(l)(a) of the Land Disputes Court Act where the pecuniary jurisdiction Is vested to properties of the value exceeding TZS 300,000,000/=. Now, does the suit fall within the pecuniary jurisdiction under section 37(l)(a) of the Land Disputes Court Act? The plaintiff's claim under paragraph 5 of the plaint apart the declaratory orders are as follows: 1. The value ofthe house claimed at TZS94,000,000/=, 2. The value ofproperties/valuables lost during the alleged Illegal eviction at TZS95,000,000/=. The plaintiffhas claimed. 3. Payment of TZS 19,200,000 being costs of accommodation from December 2019 to December 2021. and 4. Payment of TZS 800,000/= per month as costs of accommodation per month from December 2021 to the date ofJudgment. 5. PaymentofTZS500,000/= aspunitive(damages?)for Illegal eviction and demolition. Both Counsel have agreed that general damages cannot be taken to assess the pecuniary jurisdiction of the court. Therefore, the punitive damages on Item 5 above cannot be considered. The TZS 800,000/= for accommodation, which Is, Item 4 above, cannot also not be considered to be part of the subject matter because It Is anticipatory. In other words. It Is speculative because It Is not known what the amount would be payable at the time judgment Is delivered. The plaintiff claimed In Item 2 above of loss of valuables during the eviction and tagged the compensation amount at TZS 95,000,000/=. The valuables are clearly explained in paragraph 19 of the plaint as follows: 'That during the process[eviction]the plaintiffiost two laptops with aii accessories, such as backup, external drives, dash disks, mobile phones, iPad, valuable jewellery(gold, silver, tanzanite, peais, onyx) collection of over thirty years, destruction of properties including furniture and TV, ioss ofmoney that were in the house, total value of which amounts to TZS 95,000,000/=" In my considered view, the items above are personal belongings and chattels and they cannot be termed to be part of the value of the subject matter. The jurisdiction of the court is determined by the value of the land and what is affixed on the land, and since chattels and personal belongings are not attached to land as provided for in the principle of "quiquid piantatiir soio soio cedit" that is, what is attached to land is land, then these items cannot be included as part of the subject matter for assessing pecuniary jurisdiction (see the case of Shamshudin Kassam (supra). With the above explanation it is apparent that the suit has no pecuniary jurisdiction because the only amount remaining for purposes of assessing jurisdiction is the value of the house which according to the plaintiff is TZS 94,000,000/=. This amount is beiow the pecuniary jurisdiction of the High Court as provided for under 10 section 37(l)(a) of the Land District Courts Act. Consequently, this court has no jurisdiction to entertain the present suit. This point of objection suffices to dispose of the matter, and in that respect, I will not determine the remaining objections. For the reasons above, the preliminary objection raised by the defendants has merit and it is sustained. Subsequently, the suit is incompetent for want of jurisdiction and it is accordingly struck out. There shall be no order as to costs. It is so ordered. comfo 0 V.L. MAKANI judge' 31/10/2022 ★ 11