LAND APPEAL no 4880 of 2024

Cl IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 4880 OF 2024 (Originating from Application No. 104 of 2023, Ubungo District Land and Housing Tribunal) KRISTABELA MATEI MAKWINYA APPELLANT VERSUS JENNY JOSEPH MWENURA. RESPONDENT JUDGMENT 10“' to 27“’ June, 2024 E.B. LUVANDA, J The Appellant named above is unhappy with the ruling of the Tribunal which dismissed her suit on account of want of jurisdiction and that it is bound by the doctrine of stare decisis of superior Court. In the petition of appeal, the Appellant grounded that; the trial Court (sic, Tribunal) erred in law in applying the orders given in the case of Jenny Joseph Mwenura vs Kristabella Makwinya in Land Appeal No. 183 of 2022 originating from the Land Application No. 441/2016 from Kinondoni Land and Housing Tribunal in the instant matter; Two, the trial Court (sic. Tribunal) erred in law in dismissing the application on one hand while on the other hand holding that the claim before it was for a declaration for ownership of the property; Three, 1 the trial Court (sic, Tribunal) erred in law in holding that the Tribunal had no jurisdiction to entertain the matter. Ms. Agnes Dominick learned Counsel for the Appellant submitted that the two cases are different for an argument that the cause of action and reliefs claimed in the two cases are dissimilar. She submitted that the cause of action in Land Application No. 441 of 2016 where Land Appeal No. 183 of 2022 emanate from therein, was for breach of contract and reliefs claimed in those matters was for the Respondent to be declared to have breached the contract. She submitted that the cause of action in Land Application No. 104 of 2023 subject for this appeal is based on failure to surrender ownership of the property after finalization of the payments and reliefs claimed were declaration of the Applicant (sic. Appellant) to be the owner of the disputed property. For the second ground, the learned Counsel submitted that the Tribunal in holding that in the application, the Applicant (sic. Appellant) was seeking to be declared the owner of the dispute property, arguing on itself declared its (sic, to have) jurisdiction. She submitted therefore that the matter was properly before it. Ground number three, the learned Counsel submitted in replica to the second ground. She submitted that it is clearly that only the Tribunal does have jurisdiction to entertain this matter. Mr. Habibu Kassim Habibu learned Counsel for the Respondent submitted In reply that, a system of law requires a considerable degree of certainty and uniformity, arguing that such certainty and uniformity would not exist if the courts were free to arrive at a decision without regard to any previous decision. He submitted that it is acceptable that subordinate courts are bound by the decisions of the superior courts. He submitted that the ruiing of the Honorable Chairman was correct in finding and applying the orders of the High Court for the reason that he was bound to foiiow what has been decided by the High Court, citing Jumuiya ya Wafanyakazi Tanzania vs Kiwanda cha Uchapishaji cha Taifa [1988] TLR 146 for a proposition that all courts and tribunals below the Court of Appeal are bound by the decisions of the Court regardless of their correctness. For ground number two, the learned Counsel submitted that the Respondents maintain that the High Court in Land Appeal No. 183 of 2022 observed at page three paragraphs three and four that the parties' conflict was on the performance of the contract and breach of the contract does not constitute land dispute, arguing it remains breach of contract capable of being enforced in other courts of competent jurisdiction. He submitted that the Respondent insist the judgment in Land Appeal No. 183 of 2022 binds both parties for explanation that, it only determined the rights of the parties, that is to say the findings therein affect both parties, arguing therefore that where one is not satisfied or aggrieved by the decision may exercise the remedy available which is appeal to the Court of Appeal. On rejoinder, the learned Counsel for Appellant submitted that the cause of action in Land Appeal No.441 of 2022 (sic, 183 of 2022) was contractual, arguing that the Respondent herein is the one who sued, while in the instant matter the Appellant herein is not claiming breach of contract rather is claiming ownership of the land. For ground number two and three, the learned Counsel submitted that the holding in Land Appeal No. 183 of 2022 would bind the Appellant if she could bring a cause of action on breach of contract. On my part, I agree with the argument of the learned Counsel for Respondent regarding a proposition that generally lower courts and tribunal should adhere and stand by things decided by superior Courts while resolving cases with comparable facts. As per my preface above, indeed the Tribunal take cognizant to this salutary principle, that it was bound by the decision of this Court. However, for purpose of this judgment, I will pick from page two last paragraph from the bottom of the impugned ruling, and I bold the relevant part, 'Having gone through thatparties submissions they both agree that the case of Jenny Joseph Mweneura vs Kristabeia Mwakinya Land Appeal No. 183 of2022 originating from Land Application No. 441 of 2016 Kinondoni District Land and Housing Tribunal the High Court (which the Tribunal take judicial note), found that the case it involve the claim ofland it was not a land dispute but breach of contract which could be hied before court with competentJurisdiction. The court do agree with the Respondent's Counsel that, this court has no jurisdiction to entertain this application though the application is seeking to be declared the owner of the suit premises. Their claim arose on breach of contract, that can be enforced in other court having jurisdiction. Also, this court is bound by the High Court decision which it found the Applicant's claim not to be a land dispute as it arose from breach of contract' In Land Appeal No. 183 of 2022, at page three starting at paragraph three, this Court speaking through Honorable Mwenegoha, J ruled, I quote in extenso and at length. '...After going through the records from the trial Tribunal, especially the Application and the impugned Judgment it is obvious that, the parties'conflict was on the performance of the agreement, though the said agreement was on the sale of the disputed land. I am aware that, section 167 of the Land Act, CapllJ R.E. 2019 expressly states that the jurisdiction of land courts is to entertain disputes on land matters. The expression "land matter" was well defined by Hon. Maige, J in the case of Charles Rick Muiaki vs Wlllliam Jadson Magero, High Court, Civil Appeal No. 69 of 2017, High Court of Tanzania at Mwanza (unreported), to Include disputes which touch a right on land or any Interest over the same. What I have at hand Is not a land dispute as elaborated above. It Is a contractual dispute. The fact that the said contract was on sale of an Immovable property (land). It's breach thereo,f does not constitute a land dispute. It remains a breach of contract, capable of being enforced In other courts of competentJurisdiction to try cases of this nature. In that case, the trial Tribunal was wrong to discuss and decide the Issue of ownership (see page 12 of the Impugned Judgment) In favour of the respondent Above all It was not among the Issues for determination drawn by the Tribunal. Clearly the trial Tribunal misdirected Itself when It Included other Issues In Its decision, which were not part of the earlier framed Issues. The effect of such action Is that the Tribunal was led to adjudicate on the dispute as If It Is a land matter while It was not Based on the drawn Issues, It was a contractual dispute, rather a contractual dispute (sic)' It is to be noted that in Land Appiication No. 441 of 2016 subject for appeal in Land Appeal No. 183 of 2022, it is the Respondent herein who sued for a claim of breach of contract for sale of the suit premises. Indeed, in her written statement which she filed to defend the suit subject for this appeal at paragraph five she averred. 'The content of paragraph 6.4 is partly noted to the effect that the agreement was concluded orally, however it was not in the agreement that the applicant should pay the purchase price as she wished, the respondent insist that the applicant did not comply with the terms and conditions by failing to effect the complete payments within given times as agreed hence the applicant was clearly in breach of the said contract' Herein, the Appellant in her application before the Tribunal is claiming for reliefs among others for a declaration that she is the lawful owner of the suit property. Therefore, to my respective view, the cause of action in the suit subject for this appeal do not fall within the realm and ambit of a previous suit subject for Land Appeal No. 183 of 2022. Hence, the decision of this Court therein cannot be said it bind the cause of action in this appeal. Therefore, departure to it cannot be said it amount to creating conflicting decisions on the subject and nor uncertainty neither nonuniformity can be traced from that angle. That said the decision of the Tribunal is quashed and its order set aside. The matter is remitted back for the Tribunal to determine on its merit docket. The appeal is allowed. No order foc^costs. E.B. LUVANDA 27/06/2024 ' Judgment delivered in the presence of Ms. Agnes Dominck learned Advocate for the Appellant also holding brief for Mr. Habibu Kassim Habibu learned Advocate for the Respondent. E.B. LUVANQ, JUDGE 27/06/2024 8