20170307 TZHC Arusha3

. ,., . . IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA DISTRICT REGISTRY AT ARUSHA CIVIL CASE NO.26 OF 2016 GIRAFFE EXECUTIVE INN LIMITED ........................................ PLAINTIFF VERSUS TANZANIA INVESTMMENT BANK LIMITED .................. DEFENDANT RULING DR.OPIYO, J This ruling is in respect of Preliminary objection raised by the Counsel for the Defendantthrough her pleadings and the additional notice of Preliminary Objection filed on 10th October 2016 as follows. 1. That the Plaintiff's suit is improper, misconceived and pre-mature for a reason that the Defendant has not issued a statutory notice in respect of the credit facilities and mortgages thereto; and 2. That the Plaintiff's suit is improperly before this Honorable Court for reasons that it has raised land issues in a Civil Case and that this suit is incompetent on the ground that it has been improperly filed before this Court thus this Court does not have Jurisdiction. In disposing the points of objection, I would wish to start with the second point as it goes to the root of the matter by determining competency of this court in dealing with the matter at hand. 1 ( ,. Arguing the second point of objection that the instant suit is improperly before this Honorable Court for reasons that it has raised land issues in a Civil Case the counsel for the respondent, Mr. Crispin Mwebesa submitted that, the jurisdiction of courts in Tanzania is a statutory creature and thus, it cannot be created by act or wish of the party to the suit. That is to say, powers and limits of the courts to adjudicate cases or any legal matters before it are provided by laws and thus in absence of such mandate, the court cannot assume such power. He said the matter at hand is Civil Case No. 26 of 2016, which irrespective of being titled as Civil Case, it pleaded land matters. In other words, what has been pleaded by the Plaintiff attracts applicability of land laws in particularly, on mortgage transactions, It should be noted that land matters/disputes are triable by the land registry of the High Court of the United Republic of Tanzania. Basically, before 2010 land matters were exclusively adjudicated by High Court Land Division by virtue of Section 167(1)(b) of the Land Act, as well as Section 37 of the Land Disputes Courts Act, Cap. 216. The Written Laws (Miscellaneous Amendments) Act, No.2 of 2010 removed the exclusive jurisdiction of the High Court Land Division to adjudicate land matters. He submitted further that, in other words, the Act No. 2 of 2010 made two main changes; one is that the exclusive jurisdiction of High Court Land Division was abolished. Secondly, the land division of the High Court is vested to High Court (Land Division) and High Court District Registries sitting as land division of the High Court as provided under Rules, SE and SF of the High Court Registries Rules, 2005, G.N No. 96 of 2005 and thus these Rules are made under the provision of the 2 ,I Judicature and Application of Laws Act, Cap. 453, when this honorable court sitting as the land division of the High Court and thus the matter is admitted and filed as Land Case, then under such circumstances, it has ; jurisdiction. To the contrary, despite the fact that the Plaintiff's plaint under paragraph 3 and 4 makes reference to land matters this case is neither admitted as land case nor the court itself is sitting as the land division of the High Court. This means that the Civil Court in this case does not have jurisdiction to entertain land matters. He said the legal position is cemented by the recently decided case of Petrofuel (T) Ltd and Isa Limited vs. Educational Books Publishers Limited and Two Others, Land Case No.54 of 2016, Unreported, High Court of Tanzania, Dar Es Salaam whereby at page 8 and 9 it was stated that the ' High Court whose jurisdiction is derived from section 167(1)(b) of the Land Act read together with section37 of Cap.216 have try the suit as land case and non-conformity renders the court to have no jurisdiction.He concluded that,this court lacks jurisdiction and therefore this application is incompetent and bad in law and the only available remedy is to strike outthis application ,with costs. I In reply to that ground, the counsel for the plaintiff, one Mr. John Mseu • submitted that, the objection has no merits and it is highly misconceived on the account paragraph 14 of the plaint has clearly indicated that the matter took place in Arusha and the amount involved is within pecuniary jurisdiction of this court. He said, the learned counsel for the defendant is trying to criticize the powers of the presiding judge that this court is not sitting as High Court land Di'(ision and therefore, she has no jurisdiction to try this case. Howev~r; he admits that Act No. 2 of 2010; made various changes in coyrts' jurisdiction including that; the 3 exclusive jurisdiction of High Court Land Division was abolished but at the same time alleging that the presiding judge has no jurisdiction as the case is termed as civil case while it involves land matters is a misconception!. In his view, this argument does not qualify to be a preliminary objection on point of law and the same should be dismissed with costs. I have considered parties' submission to this particular preliminary objection, the issue for determination is whether the suit is improperly filed in this court. Perusal of the records shows that the reliefs sought by the plaintiff in his plaint are as hereunder:- (a) That the defendant be restrained from entering, alienating, disposing and/or in any manner dealing with the collateral of the plaintiff pending the determination of this suit. (b) That the defendant be ordered to comply with the procedure laid by the law on the issue of foreclosure. (c) That the defendant be ordered pay costs. (d) Any other or further relief (s) as this Honourable court shall deemed From the reliefs sought especiallythat of restraining another party from entering, alienating, disposing and/or in any manner dealing with the collateral (which is land) of the plaintiff pending the ,determination of this suit, it is undisputed that the present case is a land case and not a normal civil case. It follows therefore that, since it is a land matter it ought to be filled and admitted in the registry as a land case, in the 4 circumstances I agree with the defendant's counsel that, the su.it was filed in the wrong registry the same ought to be struck out with c~sts as I I hereby do. The records show that, there is a Mi,sc. Civil application no. 152 of ' 2017(an application for temporary injunction) which emanated as a result of the suit that has been struck 'out. In the circumstances, since the main suit has already been strucki out, then the application which emanated from it has no legs to stand on, the same is also consequently struck out. I ' DR. OPIYO JUDGE 07/03/2017 5: