20080619 TZHC Dar es Salaam

, / .,1~ ' ..-_;... . "• •• ..... __,,, .. . IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CML CASE NO. 32 OF 2004. HIPPOLYTE F. BITANYI ...................... PLAINTIFF VERSUS TIB MIC MSOLOPA INVEST CO LTD ............. DEFENDANTS Date of last Order: 30/05/2008 Date of Ruling : 19/06/2008 RULING MLAY, J. This ruling is on a preliminary objection raised by the defendant, to a suit filed by the Plaintiff, that this court lacks jurisdiction to entertain the suit. The Plaintiff had filed a suit in this court on 3/3/2004 and in the Plaint, he avered that he obtained a loan of Tshs.68,000 /= and of Tshs.12,000/- from the Tanzania Housing Bank, which loan was to be repaid by monthly deductions from the Plaintiffs salary, for a period of twenty years and that the plaintiff mortgage his house on plot No. 174 Block C Mikocheni. He further avered that deductions were made ·• up to 1999 when the Plaintiff retired from public service but in 2001, "he was shocked to receive notice from the 1 st Defendant that he was still indebted for Tshs.1,343,430.20 as neither his employer nor him had been informed of the increase". He further contended that he immediately paid shs.300,000/- but when he went to pay the remaining sum of Shs.1, 191,207.55 the defendant refused to accept the money and that the 1 st defendant without notice, instructed the 2 nd defendant to sale the house on Plot No. 177 Block C Mikocheni the property mortgaged for the two loans. The Plain tiff prayed for- a) The sale of the house on Plot. 1 77 Block C Mikocheni to be declared null and void b) The Registrar of Titles to be restrained to effect transfer of certificate of title for Plot No. 174 Block 'C' Mikocheni to the bonafide purchaser one Augustina Nyato. c) The Plain tiff to be allowed to pay the rema1n1ng sum of 1,191, 207, 55 and be given his certificate of title. d) Costs. 2 Meanwhile the Plaintiff also filed an application for restraining orders. The 1 st Defendant who 1s the liquidator of the Tanzania Housing Bank, filed a Written Statement of Defence and gave notice of preliminary objection on the following grounds:- aJ That this Honourable Court has no jurisdiction to entertain this case in terms of Section 167 of the Land act No. 4 of 1 999. b) That the Plaintiff has failed to disclose a cause of action against the Defendants. c) The suit is res subjudice in that the parties are litigating in the same subject matter in Resident Magistrates Court of Dar es salaam at Kinondoni in Civil Case No. 82 of 2004 before Mtaki (DM) The parties made a number of appearances and in the proceedings which took place on 2/12/2004 the Plaintiff/ Applicant was represented by Mr. Ntimizi Advocate while Mr. Taira appeared for the 1 st Defendant/ Respondent. Including granting leave to file written Statement of Defence and Counter affidavit by the 2 nd Defendant, this court ordered the matter to come up for mention on 14/12/2004. 3 Neither Mr. Ntimizi nor Mr Taira appeared further mention and the date for the hearing of the preliminary objection was set to take place on 27/4/2005 at 8.30 am. On 27/4/2005 neither party appeared and the hearing was adjourned to 3/8/2005. On 3/8/2005 only Mr. Taira advocate for the 1 st Defendant/ Respondent appeared and prayed to proceed with the hearing of the preliminary objection exparte on grounds that the Plaintiff/ applicant who was obliged to make a follow up on his suit and application, had not done so. This court granted the prayed and the preliminary objection proceeded exparte. At the hearing of the preliminary objection exparte Mr. Taira abandoned ground (a). He submitted that the suit was wrongly filed in this Court and that the suit ought to be dismissed with costs, on grounds that Section 167 of the Land Act 1999 exclusively vests the jurisdiction to determine matters relating to land to the Land Division of the High Court. He contended that the suit is a subject matter concerning the sale of land on Plot No. 174 Mikocheni by public auction which auction was conducted on 20/12/2003 while the suit was filed in this court on 4 27/2/2004. He argued that all this time• the Land Act 1999 was fully operational. Mr. tairo ended his submissions with a promise to bring the Government Notice which brought the Land Act into operation. Unfortunately until the time of writing this ruling Mr. Tairo has not made the notice available. However, upon research it has been established that by virtue of GN. No.485 of 2001, the Land Act 1999 come into operation on 1 st May 2001. The issue in the preliminary objection is whether by virtue of section 167 of the Land Act 1999, this court lacks jurisdiction to entertain the suit. Section 167 (1) of the Land Act provides as follows: 167- (1) The following courts are hereby vested with exclusive jurisdiction, subject to the provisions of this Part, to hear and determine all manner of disputes, actions and proceedings concerning land, that is to say- a) The Court of Appeal b) The Land Division of the High Court established in accordance with law for the 5 time being in force for establishing courts divisions, c) The District Land and Housing Tribunals. d) Ward Tribunals e) Village Land Councils 2 ..... ......................... [Not relevant] 3 .............................. [Not relevant] It has been argued on behalf of the 1 st Defendant/ Respondent that this court lacks jurisdiction by reason that section 167 ( 1) vests exclusive jurisdiction 1n the High Court Land Division. It is apparent that section 167 ( 1) vests exclusive jurisdiction to determine all manner of disputes, actions and proceedings concerning land, on the Land Division of the High Court, in addition to the Court of Appeal and the tribunals specified under that subsection. The subsection describes the High Court Land Division as "the High Court Land Division established in accordance with law for the time being in force for establishing court divisions". The Land Division of the High court was established by However, the law regarding the exercise of jurisdiction in relation to land disputes is contained in the 6 ,,r ' Land Disputes Courts Act Cap 216 RE 2002 which came into operation on 1 st October 2003. Section 37 of Cap 216 provides that: "Subject to the provisions of this Act the High court (Land Division) established shall have and exerczse original jurisdiction- a) in proceedings for the recovery of possession of immovable property in which in value of the property exceeds fifty million shillings. b) In other proceedings where the subject matter capable o being estimated at a money value in which the value of the subject matter exceeds fifty million shillings ..... . c) d) " Section 54 of Cap 216 saves proceedings relating to Land Disputes which were pending in the courts and tribunals before the date of commencement of this Act. The suit under consideration was filed on 3/3/2004, which is a period of four months after the commencement of the Land Disputes courts Act, Cap 216. As the suit relates to a dispute over the sale of Land Plot No. 174 Block C Mikocheni and seeks restraining orders for the transfer of the ownership of the said land, the suit is a 7 land dispute. As it was filed on 3/3/2004, some four months after the date of commencement of the Land Disputes Court Act, Cap 216 RE 2002, the suit is not saved by Section 54 (1) of the Act, because it cannot be said to have been pending on the date of the commencement of the said Act. As the suit was filed after the commencement of the Land Disputes Court Act and it is not saved by section 54 of the Act, this court lacks jurisdiction to entertains the suit. The suit is therefore improperly before this court and it is accordingly struck out, with costs. J.I.M~ JU E, The parties being absent for long time, this ruling be notified to the parties by notice on the court Notice Board. Dated this 19 th day of June 2008. J. I. Mk:J 19/06/2008. 8 . I