19890717 TZHC Dar es Salaam

', ' r. , -~ , , ,: lN .THE HIGH COURT OF TAUZANIA' A~- BAA $S §4,LA~, -C.I.l[IL CASE NO: 39 OF 1987 CHAUSIKU SHABANI ::::::::::::::::: P:LAINTIFF versus HAMISI TUMBO ALIAS ::::~:::::::::: n.EFEND!i.NT

HAMISI KIMU

RULING MNZAVAS 1 J.!, The plaint.if.f in th.is....,(',.aS€ .is -claiming a to.tal of shs. 305, 490/- from the def end ant a.a damages allegedly for def endan.t.A br.sa..eh of contract entered between them. When the ease eame up for hearing on 6.6.1989 Mr. Kesaria, learned counsel for the defendant, raised a prelim.i1.1ary objeetion and argued that the contract between the parties concerned disposition of land and that such agreeme~.mu5ii- in law be in writing where the land is registered land and that eonsent of the land offiee has tc be obtained •. It was the learned counsel.' s submission that the agreement between the parties cannot be enforced as it was not in writing and that consent of the land office has not been granted. In support of his argument the eourt was referred to section 2(1) of the Land Registration Ordinance, Cap 334 and section 8(1) of the Registratiun of Documents Ordinance, Cap 117. The court was ~lso referred to the decision of the Court of Appeal in Civil - A1meal No. 15 of- 88 NIT IN COFFEE ESTATES LTD and 4 others vs, UNITED ENGINEERING WORKS LTD and Another. The Court was al.so referred to the decision of this Court in SULEIMAN IBRAHIM vs AWADH SAID (1963lE.A.

179. It was argued that the plaintiff should have filed his elaim before the Regional Housing Tribunal and not before this •ourt. Mr, Mbuya learned oounsel for the plaintiff argued that there was no question of consent of the Land Office regarding the ~ agreeaent between the parties as the land in question was not registered land~ The learned ccunsel also argued that the definations of dispositicn referred to by Mr. Kesaria, learned counsel for the defendanj;, concerned only registe~ed land. It was Mr. Mbuya's submission that there was no obligaticn for the agreement between the parties to be in writing as the land was unregistered. From my reading of the plaint it is amply clea,Jt frcm t4e 2 contents of paragraph 4 to 7 that the defendant Hamisi Tumbo gave permimaion to the late Bakari to enter into his land and build thereon. According to para 4 of the plaint the late ' Bakari was to occupy the building until he-~e•overed all his con~truction 6osts. That being the agreement between the parties the relationship between the defendant and the late Bakari was, under section 4 of the Rent Restriction Act, 1964, that of a landlord and tenant. There is nothing in the plaint to suggest that the defendant sold any part of his land to the late Bakari. With · respect to Mr. Kesaria, learned counsel for the defendant, the question of disposition of land by the defendant to the

late Bakari does not arise~ Consequenily there was no obligation ~n the part of the defendant and the late Bakari to have their agreement in writing or have the approval of the President; or as it is new the·case, the approval of the Director of Land Development Services. But I, en the other hand, tend to agree with Mr. Kesaria that in view of the provisions of section 4 of the Rent Restriction Act, 1984 and the decisions of this Court in GANGABHAI HARJI V BHOJA KESHAVJ (1951)EA 304 and SULEIMAN IBRAHIM V AWADH SAID ( l965)EA 179 the plaintiff, Chausiku Shabani, who vias granted letter of administration of deceased's estate should have lodged her.claim in the Regional.Housing Tribunal and not before this.-.1.:iurt which has no jurisdiction in the matter. The suit is accordingly dismissed. The plaintiff is adviced to file an application before the Regional Housing Tribunal. The, defendant to have his ,p.osts. _ ..._. ~~w * N • S .~AVAS 1

JAJI KIONGOZI

DAR ES SALAAM 17TH JULY. 1989