Hawa Edgar vs Elizabeth Ijoka Jagale

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MBEYA LAND APPEAL NO. 000008215 OF 2026 HAWA EDGAR .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ELIZABETH IJOKA JAGALE .............................. RESPONDENT / DEFENDANT JUDGMENT POMO, J th 7 August & 11 September, 2026 th POMO, J The appellant, HAWA EDGAR, is not happy with the decision of the District Land and Housing Tribunal for Mbeya (the Tribunal) striking out her Land Application No. 56 of 2025 which decision upheld the respondent’s objection that the tribunal had no jurisdiction in terms of section 92(1) of the Land Act, [Cap. 113 R.E. 2023] to entertain the Appellant’s suit for the same concerned breach of contract. The impugned tribunal decision was handed down on 13 day of February, 2026, Hon. A. Mapunda, learned Chairman of th the Tribunal Page. 1 Albeit briefly, based on the pleaded fact, the background of the matter can be narrated as follows. On 29 May, 2025, the appellant filed before the th tribunal a suit, Land Application No. 56 of 2025, against the respondent claiming that the respondent had trespassed onto part of her business premise’s room located at Soweto Street within Mbeya City (the suit land) by diving it through building a wall which hardly divided it into half. Further, she averred that, the respondent did so in 2023 without consent, be of the suit land owner or the appellant herself who is a tenant in the room since 2011. That the appellant had renovated the suit premise in accordance to her tenancy agreement by using her own money hence added its commercial value. On 23 June, 2025, the respondent filed her Written Statement of rd defence (the WSD). Not enough, on 8 day of September, 2025, the th respondent filed against the suit a notice of preliminary objection on point of law to the effect that the Appellant’s Land Application before the Tribunal is bad in law for suing the respondent who had no locus standi to be sued in that suit. On 12 day of September, 2025, the respondent filed an amended WSD th which was followed by filing another notice of preliminary objection on point of law that the appellant’s suit is bad in law as the District Land and Housing Tribunal has no jurisdiction to hear and determine disputes on breach of tenancy agreement, the power which is vested in the ordinary court. The latter objection was heard and determined by the tribunal, as hinted above, by upholding it. Consequently, the appellant’s suit was struck out for Page. 2 want of tribunal’s jurisdiction. Aggrieved with that decision of the tribunal, the appellant filed the instant appeal founded on three grounds, namely: - 1. That, the Trial Tribunal erred in law and in facts when ruled that the Trial Tribunal lacked Jurisdiction. 2. That, the Trial Tribunal erred in law and in facts when entertained the Notice of Preliminary Objection which was improperly described and uncertain. 3. That, the Trial Tribunal erred in law and in facts when ruled in favour of the respondent contrary to the law. When the appeal came up for hearing, the appellant was represented by Mr. Philip Mwakilima, learned counsel, whereas the respondent enjoyed legal service of Ms. Jalia Hussein Nyamoga, learned counsel. The appeal was argued by way of written submissions. Both sides dully filed their respective submissions. This court is thus grateful to them Submitting for the first ground of appeal, Mr. Mwakilima argued that the Trial Tribunal erred in dismissing Land Application No. 56 of 2025 for want of jurisdiction. Elaborating, he argued that the reliefs sought, including a declaration of lawful tenancy, a permanent injunction and restoration of the disputed premises, fell within the Tribunal’s jurisdiction under sections 4(1) and 36(1)(a) and (b) of the Land Disputes Courts Act [Cap. 216 R.E. 2023]. He contended that the Tribunal wrongly relied on sections 111 and 92(1) of the Land Act [Cap. 113 R.E. 2023], particularly section 111(1), whose use of the word “may” was, in his view, discretionary rather than mandatory. He also Page. 3 referred to section 54(1) and (2) of the Interpretation of Laws Act [Cap. 1 R.E. 2023] on that aspect. He thus averred that the Tribunal ought to have applied the provisions of the Land Disputes Courts Act in determining its jurisdiction. To bolster his argument, he cited the cases of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696 and Paul Revocatus Kaunda vs Speaker of the National Assembly and Another (Civil Appeal No. 167 of 2021) [2025] TZCA 183 (7 March 2025) TanzLII. As regards the second and third grounds, relying on the case of Sandra Weiler (Executor of Elifadhili Wilson Msuya) vs Lightness Mlay (Civil Application No. 499/05 of 2024) [2024] TZCA 1074 (8 November 2024) TanzLII and Soitsambu Village Council vs Tanzania Breweries Limited & Another (Civil Appeal No. 105 of 2011) [2012] TZCA 255 (17 May 2012) TanzLII, the learned counsel argued that a preliminary objection must raise a pure point of law and not depend on disputed facts or evidence. Moreover, Mr. Mwakilima submitted that the appellant had not pleaded any tenancy agreement with the respondent and, in any event, the Tribunal had jurisdiction under section 36(1)(a) of the Land Disputes Courts Act [Cap. 216 R.E. 2023]. Therefore, he urged the Court to allow the appeal and set aside the tribunal ruling and orders. In response to the first ground, Ms. Nyamoga contended that the Trial Tribunal correctly dismissed the application. She argued that section 111 of the Land Act [Cap. 113 R.E. 2023], requires disputes concerning termination of a lease arising from breach to be instituted before the District Court, Page. 4 notwithstanding the use of the word “may”. Thus, insisted section 111 of the Act was correctly interpreted. Bolstering, she relied on Abeid G. Hussein vs Ramadhani Msigwa Nyamwelu (Land Appeal No. 28003 of 2023) [2024] TZHC 7285 (16 August 2024) TanzLII. Furthermore, Ms. Nyamoga, submitted that jurisdiction is determined by the cause of action and the reliefs sought. Here, she cited the case of Aloyce Sebastian Moshi vs Manyema Mosque Registered Trustees and Others (Land Case No. 10125 of 2025) [2025] TZHCLandD 494 (28 July 2025) TanzLII and Godlove Raphael Dembe vs Philipo Paul Ndunguru and Others (Civil Case 130 of 2022) [2023] TZHC 16690 (5 April 2023) TanzLII, and contended that the appellant’s pleadings disclosed a dispute arising from a lease agreement rather than invasion. Following that, she argued that section 36(1)(a) of the Land Disputes Courts Act, [Cap. 216 R.E. 2023], as cited by Mr. Mwakilima, was inapplicable. Regarding the second and third grounds, the counsel submitted that, the preliminary objection was properly raised and concerned a pure point of law, as it challenged the jurisdiction of the Trial Tribunal. Relying on Soitambu Village Council vs Tanzania Breweries Limited and Another (Supra), Sandra Weiler (Supra), Jackline Hamson Ghikas vs Mllatie Richie Assey (Civil Application 656 of 2021) [2022] TZCA 438 (18 July 2022) TanzLII and Tanzania Telecommunication Company Limited vs Vedasto Ngashwa & 4 Others, Civil Application No. 67 of 2009, she maintained that the objection met the established requirements for a valid preliminary objection. Page. 5 That, the dispute arose from a breach of a lease agreement, over which the District Court, rather than the District Land and Housing Tribunal, had jurisdiction. Ultimately, she prayed for this Court to dismiss the appeal. In rejoinder, Mr. Mwakilima largely reiterated the submissions made in chief. I therefore find no need to reproduce the same herein. On my part, having carefully considered the contending submissions by the parties and thoroughly scrutinized the tribunal record, the main issue calling for determination is whether this appeal is meritorious or otherwise In my adjudication plan, I will begin with the 2 and 3 grounds of nd rd appeal which stand argued by the parties in a combined fashion. The appellant’s Complaints under these grounds are, one, the notice of preliminary objection was improperly described and uncertain. Secondly, that, the tribunal ruled in favour of the respondent contrary to the law. Substantiating the complaints, Mr. Mwakilima had submitted that the respondent’s notice of preliminary objection didn’t specify the provision of the law barring the appellant from bringing the complaint before the tribunal. Besides, argued that the appellant’s Land Application as a whole, in it, nowhere is pleaded if she ever entered a lease agreement with the respondent. In finding out the truth, I have read the respondent’s notice of objection against the appellant’s suit. The same questioned the jurisdiction of the District Land and Housing Tribunal on whether it is vested with the power to hear and determine matters on breach of lease agreement. Being a jurisdiction issue, in Page. 6 my considered view, is a pure point of law, irrespective of non-citing any law. It was therefore incumbent upon the respondent, during hearing of that objection, to demonstrate on how the District Land and Housing Tribunal lacked the requisite jurisdiction. The respondent did so during hearing and persuaded the Tribunal to uphold it. The objection therefore, as raised by the respondent, falls in the ambit of the cases cited by the appellant’s learned advocate hence misapplied in the argument advanced by the appellant. That said, I find the 2nd and 3 grounds are without merit and are hereby disallowed. rd Back to the first ground which is on complaint that the District Land and Housing Tribunal didn’t lack requisite jurisdiction to hear and determine the Appellant’s suit. The jurisdiction complained of, according to the respondent’s notice of preliminary objection, is that the appellant’s dispute being on breach of lease agreement is a dispute triable by ordinary courts and not the District Land and Housing Tribunal. In my view, in order to determine as to whether the dispute was on breach of contract or otherwise, the court/tribunal has to find out the truth from the pleaded cause of action. In other word, the cause of action comes from the pleaded facts. I hold so fortified by what was stated by the Court of Appeal when interpreting Order VII Rule 1(e) of the Civil Procedure Code, [Cap.33 R.E.2023] in Robby Traders Ltd vs CRDB Bank Plc & Another (Civil Appeal No. 70 of 2012) [2017] TZCA 236 (22 March 2017) TanzLII when, at page 8, the Court of Appeal underscored thus: - “Under Order VII Rule (l)(e) of the Civil Procedure Code [Cap 33, RE 2002], (the CPC) a party is required to indicate in the plaint, the facts constituting cause Page. 7 of action and when it arose.” Under the instant case here, the plaint is the Appellant’s Land Application which she filed before the Tribunal. Let us look the disclosed cause of action from it by reproducing the pleaded facts which basically forms paragraph 6(i) – (vii) of the said Land Application. The same reads thus: - (i) N/A (ii) Kwamba ni mleta maombi aliyegharamia ukarabati wa chumba cha biashara ambacho katika maombi haya kinatambulika kama eneo la mgogoro. Mleta maombi anaeleza zaidi kwamba eneo la mgogoro liliendelezwa na kuongezwa thamani na mleta maombi mwenyewe kama masharti ya Mkataba wa upangaji yanavyosema. Nakala ya Mkataba wa upangaji inaambatanishwa na kuwa sehemu ya maelezo au hati hii ya madai/maombi kama itakavyoonekana katika aya ya 6(b)(4) (iii) Kwamba, pasipo haki wala ruhusa yoyote mnamo mwaka 2023 mjibu maombi alivamia sehemu ya chumba tajwa hapo juu, takribani ya nusu chumba na kutenganisha ukuta katikati bila ridhaa ya mmiliki wa chumba hicho au mpangaji wake. (iv) Kwamba, nimefanya jitihada mbalimbali za kutafuta suluhu juu ya uvamizi huo katika ngazi mbalimbali za uongozi na katika Baraza la kata la Ruanda hata hivyo mjibu maombi amekahidi usuluhishi ili kumaliza mgogoro huo na kuendelea kutumia chumba kwa matumizi yake binafsi na familia yake. (v) Kwamba, kutokana na uvamizi wa mjibu maombi umepelekea hasara kubwa kwa mleta maombi na kuathiri biashara yake kwa ujumla kulinga na eneo la Page. 8 biashara kuwa dogo tofauti na hapo awali lilivyokuwa. (vi) Kwamba, baada ya kuendelea kumkataza kuvamia eneo hilo mnamo mwezi Mei mwaka 2025 mleta maombi alipeleka mgogoro katika Baraza la kata la Ruanda katika shauri la Ardhi namba 05 la mwaka 2025 akidai kunyang’anywa chumba chake cha biasharaa na mjibu maombi kama alivyokuwa anakitumia toka hapo awali kwa kutenganisha katikati. Kivuli cha barua ya usuluhishi na mwendendo kutoka baraza la kata ya Ruanda vinaambatanishwa kama kielelezo “M1” na muombaji anaomba kiwe sehemu ya maombi haya (vii) Kwamba, kwa mazingira hayo mjibu maombi ni mvamizi wa eneo la mgogoro kwa kuvamia chumba cha biashara na kukitenganisha cha mwombaji bila kuwa na madai ya msingi wala haki yoyote ya kisheria kuingia na kutumia eneo la mgogoro.” For the sake of clarity, the above paragraphs literally translate to: - (i) N/A (ii) That the applicant incurred the expenses for renovating the business premises, which are identified in this application as the disputed property. The applicant further states that she personally developed and enhanced the value of the disputed property, as provided for under the terms of the tenancy agreement. A copy of the tenancy agreement is annexed to and forms part of this application, as appears under paragraph 6(b)(4). (iii) That, without any right or permission, in 2023 the respondent invaded approximately half of the aforementioned business premises and erected a partition wall in the middle, without the consent of either the owner of the premises or the tenant thereof. Page. 9 (iv) That the applicant made various efforts to resolve the said invasion through different levels of leadership, including before the Ruanda Ward Tribunal. However, the respondent declined mediation aimed at resolving the dispute and continued to use the premises for her own personal and family purposes. (v) That, as a result of the respondent's invasion, the applicant suffered substantial losses and her business was adversely affected, as the business premises became considerably smaller than they had previously been. (vi) That, after continuing to restrain the respondent from invading the premises, in May 2025 the applicant referred the dispute to the Ruanda Ward Tribunal in Land Case No. 05 of 2025, claiming that the respondent had deprived her of part of her business premises by dividing them into two, thereby affecting the manner in which she had previously used them. Copies of the mediation letter and proceedings from the Ruanda Ward Tribunal are annexed as Exhibit “M1” and the applicant prays that they form part of this application. (vii) That, in the circumstances, the respondent is an unlawful invader of the disputed property, having entered and divided the applicant's business premises without any lawful claim, right or legal entitlement to enter or use the disputed property.” After a careful reading of these paragraphs forming the Appellant’s Land Application, I can positively remark that it does not disclose a cause of action founded on breach of contract. As argued by Mr. Mwakilima, learned advocate for the Appellant, correctly in my view, there is no any averment in it that the appellant and the respondent entered into a tenancy agreement, nor is there any allegation that the respondent breached or terminated such an agreement. Instead, the material part of the pleaded fact described the respondent’s conduct as uvamizi, that is, unlawful invasion or trespass. Moreover, the tenancy agreement referred to under paragraph 6(ii) was not Page. 10 between the appellant and the respondent, but between the appellant and one Raitoni Jagale (Malimali). As regards the reliefs sought, the appellant, inter alia, prayed for a declaration that she was the lawful tenant of the disputed premises. In my view, that prayer, standing alone, could not transform the entire cause of action into one founded on breach of contract. This is particularly so because, at page 5 of the impugned ruling, the Chairman relied solely on that prayer in reaching his finding. The nature of a dispute must be determined from the pleadings as a whole, rather than from an isolated prayer. The pleadings must first disclose the factual basis upon which the relief is sought. I have also considered the respondent’s reliance on section 111 of the Land Act [Cap. 113 R.E. 2023] and the decision in Abeid G Hussein vs Ramadhani Msigwa Nyamwelu (Supra). That authority is distinguishable. It concerned an application for relief arising from termination of a lease on account of breach, whereas the pleadings in the present case did not disclose a claim for breach or termination of a lease. In the event, as long there was no claim by the Appellant for breach of contract, then the raised preliminary objection by the respondent against the appellant’s suit lacked merit and out to be overruled by the Tribunal instead of upholding it. For those reasons, I find merit in the first ground and allow it. In the upshot, the appeal is hereby allowed. The Tribunal ruling striking out the Appellant’s Land Application No. 56 of 2025 is hereby set aside and restore the said Land Application. Since there is yet another undetermined Page. 11 objection by the respondent which was lodged on 8 day of September, 2025, th I hereby remit the case file to the District Land and Housing Tribunal to determine it first before proceeding on hearing and determining the merit or otherwise of the suit. The suit be presided over by another Tribunal Chairman with a different set of assessors. Given the circumstances of the case, each party shall bear its own costs. It is so ordered. Right of Appeal explained. DATED at MBEYA on this 11 day of September, 2026. th MUSA K. POMO JUDGE 11/09/2026 Judgment delivered in chamber on this 11 day of September, 2026 in th presence of the respondent represented by Ms. Jalia Hussein learned, learned advocate and also in presence of Ms. Felister Njolowelo, learned advocate holding brief for Mr. Philip Mwakilima, learned advocate for the Appellant. Right of Appeal fully explained MUSA K. POMO JUDGE 11/09/2026 Dated at MBEYA this 11th of September 2026 . M. POMO Page. 12 JUDGE OF THE HIGH COURT Page. 13