FRECO EQIPMENT SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE APPLICATION NO. 11990 OF 2024 FRECO EQUIPMENT SUPPLIES LTD formerly known as FRECO GENERAL BUSINESS AND CONSTRUCTION COMPANY LTD............................................. PLAINTIFF VERSUS EMMANUEL J. MUTABOYERWA........................................ 1st DEFENDANT BILO STAR DEBT COLLECTORS CO. LTD........................2nd DEFENDANT RULING 30th October & 2ffh November2024 L, HEMED, J, In this ruling, the court has been called to determine whether: - "The plaintiff's claim in the plaint is a land related dispute..." The preliminary objection was raised by Mr. Thomas Brash, learned advocate of the Defendant who argued it by way of written submissions. The Plaintiff through the legal service of Mr. Yudathade Paul, learned counsel, resisted it r/b'ethe reply submissions. I have carefully gone through the rival submissions and the pleadings, the plaint in particular in order find out whether the preliminary i objection is meritorious. In Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696 it was held thus: preliminary objection consists of a point oflaw which has been pleaded, or which arises by dear implication, out,ofjjieadings... "[Emphasis added] In light of the above authority, I revisited the plaint and found that, in paragraph 13 the cause of action has been couched to read as follows: "13. That the plaintiff's claim against the defendants is for the declaration that the 1st defendant breached the terms and, conditions of, the lease agreement, payment of Tshs 500,000,000.00 as damages for breach of lease agreement and loss of business, amount of Tshs. 486,790,540.00 as costs for renovation and cost of the case." [Emphasis added] The question is whether the cause of action herein above constitutes a land dispute? This is the question that needs to be figured out. In his submissions to support the preliminary objection, Mr. Brash was of the view that the claim is purely civil which is triable before a normal civil court. He insisted that the jurisdiction of land courts is provided under section 167 (1) of the Land Act [Cap. 113 RE 2019], that is to deal with 2 matters concerning land. In the opinion of the learned counsel, the matter at hand is based on monetary compensation. He relied on the decision of this court in Charles Rick Mulaki vs. William Jackson Magero, Civil Appeal No. 69 of 2017 and Ukodi International Company Limited vs J.M. Hauliers (T) Limited and 2 Others, Land Case No. 105 of 2022. He concluded by urging the court to strike out the suit. In response, Mr. Yudathade contended that the decisions cited are mere persuasive and they were made without considering the existence of section 37 of "the Land Disputes Courts Act (Act No. 2 of 2002 as amended)" which established the High Court (Land Division) and gave original jurisdiction in matters related to land. He proceeded to submit that the District Court cannot have pecuniary jurisdiction in the matter at hand because under section 40(2) (b) of the Magistrates Court's Act [Cap. 11 R.E 2019], the pecuniary jurisdiction of the court is limited to the subject matter whose value does not exceed two hundred thousand shillings. According to the learned counsel the Plaintiff in the matter at hand claims for payment of TZS 486, 790, 540 used for construction. He insisted that the said amount is far beyond the jurisdiction of the District Court. He ended praying the court to overrule the preliminary objection. 3 Let me start by pointing out that the jurisdiction of this court is drawn from article 108(2) of the Constitution of the United Republic of Tanzania, Cap.2 which provides the general jurisdiction of the High Court of the United Republic of Tanzania. In regards to land disputes, the jurisdiction of the High Court in general is drawn from section 167 of the Land Act [Cap.113 R.E 2019]; section 62(2) of the Village Land Act [Cap.114 R.E 2019] and section 3(1) & (2) of the Land Disputes Courts Act [Cap.216 R.E 2019]. However, in respect to the land division of the High Court, (this court), its jurisdiction is derived from Rule 5 E of the High Court Registries Rules, 2005 GN. No. 96 of 2005 which provides thus: "5E There shall be a land division of the High Court within the Registry at Dar es Salaam and at any other registry of sub-registry as may be determined by the chiefjustice in which, subject to the provision of any relevant law, appeal proceedings or original proceedings concerning land may be instituted. '/Emphasis added] The above provision envisages that the land division of the High Court (this court) has only jurisdiction to determine matters concerning land - (Land Disputes). The Land Act, [Cap. 113 RE 2019], the Village 4 Land Act, [ Cap 114 RE 2019] and the Land Disputes Courts Act [Cap 216 RE 2019] do not have an express definition of land dispute. The USAID Brief Paper on Land Disputes and Land Conflicts: property Rights and Resource Governance, (2015) defines land dispute as follows: - "A "land dispute" involves conflicting claims, to right, in, land, by, two or more parties^ focused on a particular, piece of, land, which can be addressed within the existing legal frame work." [Emphasis added] In light of the above, a land dispute must involve conflicting claims on ownership, possession or usage of land. Therefore, any dispute which does not concern ownership, possession or usage of land, cannot be falling with the category of land disputes. I managed to read the decision of this court in Anderson Chale vs Abubakar Sakapara, Civil Appeal No. 121 of 2014, where my lord, Mlay, J. defined the phrase "matters concerning land" to mean a matter on which a right on land or interest thereon is in dispute. I entirely subscribe to the interpretation made by His Lordship. I am aware that, interests and rights on land may be proprietary or 5 possessory. In Charles Rick Mulaki vs William Jackson Magero, HC Civil Appeal No. 69 of 2017, His Lordship, Maige, J. (As he then was) observed that possessory rights are of temporary duration, proprietary rights are of a more permanent, ultimate and residuary nature. As aforesaid, in the instantaneous matter, the plaintiff is suing the Defendant for breach of lease agreement and for damages thereof. It is undisputable that, a lease agreement has the tendency of creating possessory and usage right of the demised premises to the tenant/lessee. It would therefore, ordinarily be a dispute concerning land when the dispute on lease concerns possessory or usage right to the demised landed property. In the circumstance of this matter however, the Plaintiff does not claim any possessory or usage right over the premises which were subject matter of the lease agreement. In Exim Bank (T) Limited vs Agro Impex (T) and Others, Land Case Appeal No. 29 of 2008 this court had held that: "Two matters have to be looked upon before deciding whether the court is clothed with jurisdiction. One, you look at the pleaded facts that may constitute a cause of action. Two, you look at the reliefs claimed and see as to 6 whether the court has power to grant them and whether they correlate with the cause of action. "[Emphasis added] The facts pleaded in the matter at hand that constitute the cause of action are on breach of lease agreement. Looking at the reliefs claimed, the Plaintiff seeks for the following: "1. Declaration that the 1st defendant breached the terms and conditions of the lease agreement. 2. Payment of Tshs. 500,000,000.00 as damages for breach of tease agreement and loss of business; 3. Amount of Tshs 486,790,540.00 as costs for renovation of the suit premises. 4. Costs of the case." From the above reliefs sought by the plaintiff, there is no order concerning possessory or usage right over the demised premises. The damages sought are not claimed alongside with the reliefs touching possessory or usufructuary right. For the reasons exhibited herein above, I find that the matter at hand is not a land dispute as it is not connected claims for ownership, possession or usage of land. I have gone through the Land Act {supra) and found that remedies and reliefs for breach of lease agreement are covered under sub-part 4 of Part IX of the Land Act. Section 107 (1) of 7 the Act, provides thus; - 'An application for relief may be made to a district court- " In view of section 107 of the Act, as afore cited, disputes on lease in which there is no claim on possessory or usufructuary rights are required to be presented to a district court. In the final analysis, I find the matter at hand misplaced as it is not a land dispute. I proceed to strike it out with costs. Order accordingly. DATED at DAR ES SALAAM this 20th November, 2024 CHEMED 8