HENRY KOBOKO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 14249 OF 2024 (Arising from the decision of the DLHT for Mwanza in Application No. 148 of 2022) HENRY F. KOBOKO …………………………………………………….. APPELLANTS VERSUS NATIONAL MICROFINANCE BANK PLC NSOMBO & COMPANY LTD ……..………………………………… RESPONDENTS JUDGMENT 02/12/2024 & 14/2/2025 ROBERT, J: This appeal arises from the decision of the District Land and Housing Tribunal (DLHT) for Mwanza, rendered in Land Application No. 148 of 2022. Dissatisfied with that decision, the appellant, Henry F. Koboko, challenges it on the sole ground that the trial Tribunal erred both in law and in fact by dismissing his suit in its entirety on the basis that the disputed house was not sold at a public auction on 31 October 2015. The appellant contends that the trial Tribunal improperly introduced and determined an issue not raised in the pleadings—that is, whether the disputed house was indeed sold to him at a public auction. On the other hand, the respondents, while not objecting to the appellant’s ground of appeal, submitted a memorandum of cross- 1 objection under Order XXXIX Rule 22(1) and (2) of the Civil Procedure Code. The respondents advanced two grounds in their cross-objection: 1. The trial Tribunal lacked subject matter jurisdiction to adjudicate matters of breach of contract. 2. The Trial Chairperson erred in law and in fact by failing to hold that the respondents were not obligated to effect vacant possession following the sale of the mortgaged land. The factual background of this dispute is as follows. On 31 October 2015, at a public auction, the appellant was the successful bidder for the landed property situated at Igoma Magharibi, Squatter No. 002/008. A certificate of sale was duly issued to the appellant. At the time of the auction, the respondents had undertaken to effect vacant possession and deliver the property to the appellant, notwithstanding its occupation by a defaulting debtor. The respondents’ failure to comply with this undertaking prompted the appellant to refer the matter to the Ward Tribunal of Igoma, which, via a certificate dated 25 February 2022, confirmed that mediation had failed and referred the parties to the DLHT. Before the Tribunal, the appellant sought a declaratory order that the first respondent, National Microfinance Bank PLC, through the second respondent, NSOMBO & Co. Ltd, breached the sale agreement by failing to hand over the purchased house to the appellant. The appellant also 2 sought a refund of the ten million shillings paid for the property, along with orders for damages and interest. In framing the issues for determination, the Trial Tribunal stated, in translated form, the following: First, whether the respondents were legally bound to hand over the disputed property to the appellant after the auction; Second, which party bore the obligation to evict the defaulting owner from the property; and Third, what reliefs, if any, were appropriate. Notwithstanding these framed issues, the trial Tribunal, on its own motion, introduced an additional issue concerning whether the property was sold to the appellant at a public auction—a matter not raised by the parties. Both parties subsequently expressed their disquiet with this deviation from the pleadings. During this appeal and cross-appeal proceedings, the appellant was represented by Mr. Kassim Gilla, learned counsel and the respondents by Dr. George Mwaisondola, learned counsel. Submissions were made by way of written argument. The appellant’s counsel maintained that the trial Tribunal’s decision was fatally flawed for having decided on a novel issue—whether the disputed property was sold at a public auction—without affording the 3 parties the opportunity to contest or address such a matter. Counsel pointed to paragraphs 5–8 of the joint Written Statement of Defence and the relevant portions of DW1’s testimony (pages 31, 40–43) as evidence that the issue of the sale was never disputed. Reliance was placed on the binding nature of the pleadings, as affirmed in Maria Amandus Kavishe v Norah Waziri Mzeru & Another, Civil Appeal No. 35 of 2019 TanzLII at pages 16 and 17. In response, the learned counsel for the respondents conceded that the contested fact of sale was not disputed and acknowledged that the Trial Chairperson erred by raising the issue suo motu without affording the parties a proper hearing. In arguing the first ground of the cross-appeal, the respondents contended that the DLHT lacked jurisdiction as the case did not involve a land dispute within the meaning of section 167(1) of the Land Act, Cap 113 R.E. 2019, and section 3(1) of the Land Disputes Courts Act, Cap 216 R.E. 2019. Relying on Charles Ricki Mulaki v. William Jackson Magero, Civil Appeal No. 69 of 2017 and Gregory Paschal Madata v. Ashifa Kanji, Land Appeal No. 62 of 2021, He argued that the dispute, although arising from the sale of land, was essentially contractual in 4 nature—seeking relief in the form of interest, refund, and damages rather than recovery or possessory rights in land. In rebuttal, the appellant’s counsel contended that the Tribunal possessed both the pecuniary and subject matter jurisdiction to entertain the suit. The appellant relied on Sections 33(1)(b) and 33(2)(b) of the Land Disputes Courts Act, Cap. 216 RE 2019, arguing that the dispute concerned a right or interest in land. The appellant further submitted that the claim was not purely contractual, for it arose directly from a breach of the agreement by the respondents to effect vacant possession following the auction. Regarding the second ground, the respondents argued that the principle of caveat emptor (buyer beware) applied, meaning that the appellant, as the purchaser, bore the responsibility of evicting the previous occupant. They relied on Albinus Kalaba Mtesigwa v. NIC Bank Tanzania Ltd, Land Case No. 15 of 2013, which held that in an auction sale, the buyer assumes the responsibility for obtaining vacant possession. The appellant’s counsel, however, maintained that the respondents were contractually obligated to ensure vacant possession. He emphasized 5 that the respondents’ agreement to deliver possession was part of the sale arrangement, making them liable for their failure to do so. In determining the merits of this appeal, it is instructive to begin with the jurisdictional issue, as jurisdiction is the foundation of a court’s authority. As stated in Isaya Linus Chungula (as Administrator of the estate of the late Linus Chungula) v Frank Nyika (as Administrator of the estate of the late Aheri Nyika), Civil Application No. 487/13 of 2020: “jurisdiction is fundamental as it goes to the very root of the court’s authority or power to adjudicate matters before it. … issues of jurisdiction can be raised at any time or stage of proceedings.” The respondent’s counsel argued that because the appellant’s claim sought contractual relief—namely, a refund, interest, and damages—the dispute does not involve any claim for protection, possessory, or proprietary rights in land and is therefore not a “land matter” within the jurisdiction of the DLHT. The appellant, however, contended that the underlying dispute, although arising from a contractual breach, is inseparable from the sale and delivery of the landed property and thus falls within the ambit of the Tribunal’s jurisdiction. 6 Upon a careful review of the record, it is apparent that the appellant’s claim arises from the respondents’ breach of an agreement to effect vacant possession following the sale of the property. While the agreement emanated from a land sale, the relief sought—a refund of TZS 10,000,000, compensation amounting to TZS 120,000,000, and interest—constitutes purely contractual remedies. The recent decision in Jenny Joseph Mweneura v Kristabela Makwinya, Land Appeal No. 183 of 2022, supports the proposition that a dispute arising solely from a contractual breach does not transform a matter into one concerning land for jurisdictional purposes. In view of the foregoing, I am persuaded that the central conflict between the parties stems from the respondents’ failure to execute the agreed-upon act of effecting vacant possession of the property after its sale at public auction. Although the genesis of the dispute is the sale of land, the appellant’s claims for damages, interest, and refund are essentially contractual and, as such, do not fall within the jurisdiction of the DLHT as conferred by the applicable statutory provisions. Accordingly, this ground of appeal is meritorious. Since the District Land and Housing Tribunal (DLHT) lacked jurisdiction to entertain this matter, further consideration of the remaining 7 grounds of appeal is unnecessary. Consequently, the decision of the DLHT is hereby quashed, and the proceedings set aside. The parties are at liberty to institute fresh proceedings in a competent court. It is so ordered. K.N. ROBERT JUDGE 14.2.2025 8