Laura

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 4886 OF 2024 (Arising from Land Appiication No.507 of 2018, of the District Land and Housing Tribunal for Kinondoni) LAURA DICKSON NYANGE T/A NAPENDA INVESTMENT APPELLANT COASTER ALEX MBOYA 2ND appellant MARIAM ABDALLAH KALLI 3RD appellant VERSUS AZANIA BANK LIMITED RESPONDENT RULING Pate of Last 0rder:23.05.2024 Date of Ruling:31.05.2024 T-N. MWENEGOHA, J: The following are the grounds, forming the basis of this Appeal; - 1. That, the Hon Trial Chairperson erred in law and fact to decide on facts not pleaded in any of pleadings by parties and proved; 2. That, the Hon Trial Chairperson erred in law and fact for failure to read out the Application to the respondent on the first day of hearing and thus there were no response from the respondent on the contended Application thus vitiates the proceedings; 1 3. That, the Hon Trial Chairperson erred in law and fact to consider Exhibit P2 which was letter from the Police Department confirming the theft event and in opposite considered it as RB which was not, hence giving lesser weight to the evidence adduced; 4- That, the Honourable Chairperson erred in law and on fact for disregarding the Principle of Force Majure in contract, by holding that there is no clause in the loan agreement that entails the applicant (currently appellant) will stop making payments on loan upon theft. However, when I was composing Judgment, I noted an issue that attracted my attention. That, whether the dispute in the Land Tribunal was a land dispute or not. The parties were ordered to address the Court on the issue. Only the appellants addressed the Court on the issue raised. Their learned Counsel, Bwire Benson Kuboja, insisted in his written submissions that, the matter before the trial Tribunal was a contractual matter as seen at paragraph 6(ii), (iv), (vi) and (vil) of the appellant's Application. That, also, the prayers as stated at paragraph 8(b) among others, was for the Tribunal to the effect that, the appellant and the respondent to restructure the payment schedule. Therefore, this was not a land dispute as stated in Baddi Twaha Ally versus CRDB Bank & Another, Land Case No. 175 of 2023, High Court Land Division at Dar es Salaam(unreported). Having gone through the record, I agree with the appellants' counsel that, the dispute before the trial Tribunal was not a land dispute, rather a contractual matter. So, what the trial Tribunal did as far as this case is concerned was outside and beyond its jurisdiction, thus null and void. I say so, because the pleadings (Application) at paragraphs 6 (i)-(viii), show that, the claims by the applicants, arose out of the loan agreement, entered between the respondent and the appellant and guaranteed by the 2^^ and 3''^ appellant. At paragraph 6(viii) of the Application, the applicants stated clearly that, their move to file the case was in response to the respondent's intention of attaching and selling the mortgaged property. That Is to say, there was no dispute as to the land in question at the time of filling the case before the trial Tribunal. Further, on the reliefs as stated at paragraph 8, the Tribunal was invited to make among other things, a declaration that the applicant now respondent has not defaulted In paying the loan. Also to make an Order of restructuring of the payment schedules. These prayers cannot be granted by a land Court as they are beyond its powers. Not only that, but also, I looked on the issues for determination as agreed by the parties at the trial Tribunal. These were listed as follows;- 1. Whether the 1^ applicant was paying the loan as agreed. 2. Whether the respondent is duty bound to restructure the payment schedule. 3. To what reliefs the parties are entitled to. If we examine carefully these issues, especially the and 2"^^ issues, we will find that, none of them touched an issue of land. As I have noted herein above, it is apparent on the face of it, the trial Chairperson did act beyond his powers, hence his decision are null and void, see Charles Rick Mulaki versus William Jackson Magero, HC Civil Appeal No. % 69 of 2017, High Court of Tanzania at Mwanza (unreported). In the case of Exim Bank (T) Limited versus Agro Impex (T) Limited and Two Others, Land Appeal No. 29 of 2008, the Court had this to say as far as jurisdiction on land matters is concerned; - Two matters have to be looked upon before deciding II whether the Court is clothed with jurisdiction. One you look at the pleaded facts that may constitute a cause of action. Two, you look at the reliefs claimed and see as to whether the Court has power to grant them and // whether they correlate with the cause of action. In present case, both the pleaded facts and the reliefs do show that this case is a purely contractual case, falling within the jurisdiction of normal Courts to determine. In the end, I use my powers given under Section 43 of the Land Disputes Courts Act, Cap 216, R. E. 2019 and revise and nullify the whole proceedings of the trial Tribunal, quash its Decision in respect of this case and set aside its Orders. No order as to costs. Ordered accordingly. : MWENEGOHA As! 1 JUDGE ■ N. \ \ . o A \‘ 4- tj / \ \ I 31/05/2024 lA. \o\ 'w c-- V i • 4