20190321 TZHC Mwanza

IN THE HIGH COURT OFT AN ZAN IA ✓- IN THE DISTRICT REGISTRY v ATMWANZA LAND APPEAL NO. 30 OF 2017 ( Arising from land application No.17 of 2015,the District Land and Housing Tribunal of Geita) EXIM BANK TANZANIA LTD ...................................................................... APPELLANT VERSUS GEITA UPENDO DISPENSARY .................................................................. RESPONDENT JUDGMENT 21/03/2019 G. J. Mdemu, J; The Appellant, Exim Bank Tanzania Ltd and one Marrcas Investment CODEBT __ Collection Mart, not integrated in this appeal, were Respondents in the District Land and Housing Tribunal of Geita, in land application No. 17 of 2015. The respondent herein, sued them seeking inter alia for:- 1. An order to declare running A/C interest settlement which was deducted (sic) illegally as money for loan recovery. 2. · An order to declare procedures for publishing another public auction null and void. 3. An order against the Respondent to handle over certificate of right of occupancy of plot No. 15 Block "AJJ Tambukareli Geita District. 4. Costs of this suit 5. Any other reliefs this tribunal deem fit meet justice. On the strength of the evidence by the respondent's case, the trial tribunal determined the dispute in his favour by declaring the intended auction at plot No. 15 Block "A" Tambukareli illegal and that a certificate of title in respect thereof be discharged The Appellant was aggrieved by that decision and orders of the trial tribunal, hence this present appeal, on the following six grounds, which I find it necessary to re-produce as hereunder:- 1. That the Honorable Trial Chairperson erred in law by entertaining the l application while the tribunal had no pecuniary jurisdiction to 1 adjudicate on it. l I 2. The honorable Trial Chairman erred in law and facts by basing on facts which were not in issue in deciding the application in favour of the Respondent. 3. That the honorable Trial Chairperson erred in law and fact by its finding that the intended auction in respect of the house on plot No. 15 Block '11" Tambukareli was illegal while it is on record that the said house was also mortgaged to secure a loan which was advanced to the Respondent by the first Appellant. 4. That the honorable Trial Chairperson erred in law by its finding that the Appellants were supposed to serve the Respondent with statutory Default Notice in respect of the plot No. 15 Block '11" Tambukareli Geita after the auction in respect of plot No. ~8, Block E" Geita had proved failure while was part of evidence on records that the statutory default notice in respect of both properties wa~ served to the Respondent. The said notice was tendered and admitted in court as exhibit D3. 5. That the honorable trial chairman erred in law by ordering the discharge on the certificate of title in respect of plot No. 15, Block A Tambukareli 2 --= ::, t II while it was part of evidence on record that the loan which was secured by the said title has not been paid. 6. That honorable trial chairperson erred in law by her failure to give reasons for differing with opinion of one of the assessors who had opined in favour of the appellants. During hearing, on 16 th of October 2018, Mr. Galati, learned counsel appeared for the Appellant. The Respondent was absent, and upon request by Mr. Galati, this Court issued an order that the appeal be argued by way of written submissions. Both parties complied with the order. Mr. Godfrey Kange, learned counsel from Galati Law Chambers submitted for the Appellant on 25 th of October, 2018 and Kailu Law Chambers Advocates entered submissions for the Respondent on 12 th of November 2018. Mr. Kange opted to argue the second and forth grounds of appeal as one, and third and fifth grounds together, while the first and sixth grounds were separately argued. Arguing in support of the appeal, Mr. Godfrey Kange firmly resisted the decision of the trial tribunal by determined the matter without pecuniary jurisdiction. To bolster his arguments, he made reference to the respondent form of application at the District Land and Housing Tribunal which declared the value of the subject matter at plot No. 15 block "A" Tambukareli- Geita to be Tshs. 150,000,000/=. In his view, such value was not within the jurisdiction of the trial tribunal in terms of section 33 (2) of the Land Disputes Courts Act, Cap. 216, which confers jurisdiction to the District Land and Housing Tribunal where the value of the property do not exceed fifty million shillings. In the present case, the Appellant contention is that the value of Tshs. 150,000,000/= is not within the jurisdiction of the trial tribunal. He added that, the Amendment Act, No. 13 of 2017, conferred the trial tribunal with jurisdiction to Tshs. 300,000,000/=. However at the time the matter got instituted in the trial tribunal, the said amendment was not in force, thus can not apply in the present dispute. Submitting on the second and fourth grounds of appeal regarding non compliance of the provisions of section 127 of the Land Act, Cap. 113 by the Appellant, in the trial Judgment, the trial Chairman observed that the Appellant contravened the requirement of the said section by not issuing statutory Notice to be served to the borrower. On his part, the Appellant's counsel submitted that, the trial tribunal finding was bound to draw conclusion on the issues framed during hearing. Issuing notice to the Respondent before advertising the auction was not among agreed issues. His view was supported by the holding in the case of Jamali Ahamed Vs. CRDB Bank, Ltd (2016) TLS LR 106 at page.113 in the following:- "The court has, on several occasions expressed itself on the consequence of failing to accord the parties a chance to be heard on silent issues which emerged during the writing of the judgment .... We insist that case must be decided on the issues on records and where new issues not founded on pleadings are raised, the parties should be given the opportunity to address the court ..." He observed that in the matter under scrutiny, the question of default notice which the trial tribunal relied its decision, was not among the framed issues at the hearing thereof. He observed therefore that, there was no ju_stification for the learned Trial Chafrman to have a judgment on unframed issues. Mr. Kange had also another submission on the. third and fifth grounds of appeal that, the Respondent failed to prove his allegation on the deposited cash at the tune of Tshs. 150,000,000/= to be re-paid within 4-2 months and make total of Tshs. 224,700,000/=including interest. Mr Kange told this court that, the 4 Il . Respondent has ever proved this alleged facts. They . were mere wordings without proof by way of documents as neither receipts nor a bank statement was tendered by the Respondent to prove. On his view, such evidence should have been disregarded. He concluded his submissions by submitting on the last ground of appeal that, the trial tribunal erred in law for failure to give reasons for differing with the opinion of Assessor Thobias Mabula. To him, the omission is fatal and vitiate the requirement of the provisions of section 24 of the Land Disputes Courts Act, Cap. 216, which states that:- "In reaching decisions, the Chairman shall take into account the opinion of the assessors but shall not be bound by it, except that the Chairman shall, in the judgment, give reasons for differing with such • • JI opmwn The Appellant's counsel conceded the above legal position, in particular the word shall ,meaning mandatory. The same point of view was held in the case of Ashura Abdulkadri vs Director of Tilapia Hotel , Civil Application No. 02 of 2008 at pages 4 & 5. In this regard, he invited this court to allow the appeal with an order as to costs. In reply Kailu Law Chambers (Advocates) who appeared for the Respondent resisted the appeal. Arguing on the first ground of appeal, it was submitted that, the trial tribunal of ·Geita was conferred with pecuniary jurisdiction of the property at hand. His argument got confined on the reasoning that, the pleadings, the application inclusive, indicates that, the value of the suit property is Tshs. 36 million which is within jurisdiction of the trial tribunal, the amount of loan of Tshs. 150,000,000 /= by the creditor included in the written submission of the Appellant __,,....- -=---- J 5 7 is not indicated in the pleadings, rather was the amount advanced as a loan by the Respondent. It cannot therefore be used to determine jurisdiction. On the issue of default Notice by the Appellant to auction the mortgaged property in the second ground of appeal, the learned counsel was of the submission that, the idea is misplaced, conversely the same was pleaded in the respondent application. He referred this court at paragraph 6A of the applicant application. Considering such legal position, it was his observation that, the trial tribunal determined the issue within the ambit of the facts pleaded in the application. He turned to disputed sale of the second mortgage property at plot No. 15 block "A" Tambukareli within Geita, in which he observed to be double standard since the Appellant's credit was paid from p~oceeds of the sale of the 1st property at plot No. 88 Block" E" Bombambili, which was sold at Tshs. 150,000,000/=, with an addition amount paid by the Respondent at the time of paying the advanced loan. He observed that, the remedy to the Respondent was to discharge the certificate of title in respect of the property at plot No. 15 block "A". On failure to consider the opinion of one of the assessors, the learned counsel submitted to convince this court that, opinion of assessors is mandatory but the chairperson is not bound by those opinion. The only requirement of the law is to give reasons in its decision for departure from such opinion. This same requirement was complied with by the chairperson. He thus found this ground of appeal baseless. There was no rejoinder thus marking the end of submissions by t~e parties. Before I determine merits of this appeal, and after a deliberations on submissions from the parties, I should begin with. the fundamental issue of jurisdiction. The issue is whether the trial tribunal was conferred with pecuniary jurisdiction concerning the matter at hand. 6 j It is trite law that jurisdiction of the court is a creature of the statutes which may also be inferred in the pleadings as proof thereof. This averment is clearly •, ·, . j "'~' stated under the provisions of Order VII, rule 2 of the Civil Procedure Code, Cap. ·' .J 33. With regard to pecuniary jurisdiction of the Tribunal, the provisions of section ... i 33 of the Land Disputes Courts Act, Cap. 216 provides that: The jurisdiction of the District Land and Housing Tribunal shall be limited- (a) in proceedings for the recovery of possession of immovable property, to proceedings in which the value of the property does not exceed fifty million shillings; Rightly as argued by the Respondent's counsel, pecuniary jurisdiction cannot be substantially viewed on the mere words rather on proof by evidence if any. Reference is made to the case of Sospeter Kahindi Vs Mbeshi Mashini, Civil Appeal No. 56 of 2017 (unreported) and the case of Shyam Thanki and Others Vs. New Palace Hotel [1971] 1 EA 199 at 202 in which, in the latter case it was held that: ''All the courts in Tanzania are created by statute and their jurisdiction is purely statutory. It is an elementary principle of law that par_ties cannot by consent give a court jurisdiction which it does not possess. "[Emphasis added] In the case at hand, it was stated in the.application at the trial tribunal that the value of the subject matter is Tshs. 36,040,493.14, that is to say, it was within the Jurisdiction of the trial tribunal in terms of the law as provided for in the provisions of section 33(1) of Cap.216. As rightly observed by the Respondent's counsel, the loan of Tshs. 150,000,000 /= secured cannot be used to determine jurisdiction. To this legal position, it is to my settled view that this ground of appeal lacks merit. On whether the trial tribunal relied its judgment on issues not among the framed issues, it is clear on record before the trial tribunal during hearing that, there were four issues framed for determination. These issues were as follows:- 1. Whether the 1st respondent sold by auction a house on plot No. 88 Block "E" Bombambili to one Hassan Ham is Omary. 2. If the 1st issue is answered in affirmative, whether the deduction of Tshs. 4,994,591.28 as loan principal and interest recovery was justifiable 3. Whether after sale of a house on plot No. 88 block "E" Tambuka reli, the 1st respondent discharged the mortgage of a house on plot No.15 Block ''A" Tambukareli Geita 4. What other relief(s) the parties are entitled It is not disputed that in order to let the Respondent pay an outstanding credit, the default Notice was to be served but it was not served as required by the law under the Land Act, Cap. 113, in secti_on 127. The said section is reproduced as hereunder:- 127 (1) When there is a default in the payment of any interest of ~ny other payment or any part thereof or in the fulfillment of any condition secured by any mortgage or in the performance of observation of any conversant express or implied in any mortgage, the mortgagee shall serve on the mortgage a notice in writing of such default" 8 As the requirement to serve notice required by this section, being a ,.,,. mandatory one, was not complied, there was no notice legally served. The Appellant attacked the decision of the trial tribunal for basing its decision on unframed issues (the requirement of notice) which was not among the agreed issues listed in page 8 of the proceedings. The position on this as is clear in the case of Jamali Ahamed(supra) cited by the Appellant's counsel and the decision of Kukal Properties Development ltd Vs Maloo and Others (1990-1994] EA 28 and the case of Alnoor Sheriff Jamar vs Bahadur Ebrahim Shamji, civil appeal No. 25 of 2006 quoted with approval from the case of NIC and Another Vs Sekulu Construction Company LTD (1986) TLR, 57 which stated:- A judge is obliged to decide on each and every issue framed. Failure to do so constitute a serious breach of procedure... " The Courts however may determine issues even when was not in the list of framed issues if the same was pleaded. This was the position in Stella Temu Vs Tanzania Revenue Authority (2005) TLR 178, in which it was stated that:- (iiiJ As the issue of defamation was contained in the pleadings and the appellant gave evidence on it, the trial Court was right to make a finding on it even though it was not among the framed issues. Was the issue of default notice pleaded?. I have gone through the amended application filed on 27 day of November, 2015 and could not see any. As it was not pleaded, same is against fair hearing. In James Furike Ngwagilo Vs Attorney General (2004) TLR 161 the Court observed that:- (i) The function of pleadings is to give notice of the case which had to be met. A party must therefore so state his case that his opponent will not be taken by surprise. It also to define with precision matters on which the parties differ and the point on which they agree, thereby to j 9 \I I, identify with clarity the issues on wh'ich the Court will be called upon to adjudicate to determine the matters in dispute. In the present case, the trial chairpers6n departed from the issues framed for determination by coming up with the Default, Notice not served as required by the law, an issue which was not framed and agreed at trial and also not pleaded. As submitted by the Appellant's learned counsel, the trial chairman wrongly invoked such powers, and the remedy on such irregularity is to remit the file to the trial tribunal for re-trial, commencing from the framing of issues. Conveniently, and without much ado, I find it needless to resolve other grounds of appeal. In the upshot, the appeal is partly allowed, and focusing on the nature of the case itself, I am not prepared to order costs, and therefore each party has to bear own costs. I order accordingly· G. J. Mdemti Judge 21/03/201'9 Dated at Mwanza this 21 st day of March, 2019. : G. J. Mdemu Judge 2_1/03/2019 I• 10 I 1'