20160531 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA {LAND DIVISION) AT DODOMA LAND APPEAL NO. 07 OF 2015 LUCAS MNYAMAGOLA & OTHERS ......... ....................... PLAINTIFF VERSUS CAPITAL DEVELOPMENT AUTHORITY ............................ DEFENDANT RULING 4/4/2016 & 31/5/2016 H. H. KALOMBOLA,J.: This is a ruling 1n respect of objection raised by the defendant against the plaint. The objection raised are:- 1. That this suit 1s ,incompetent and bad at law for contravening Section 13 (a) of the Capital 1 Development Authority Establishment Order ( GN No. 230 of 1973) as amended from time to time. 2. That this suit 1s misconceived speculative and resjudicata. The objection was ordered disposed by written submissions. Briefly the defendant on the first point of objection submitted the plaintiffs contravened Section 13 (a) of the Capital Development Authority Establishment Order ( GN 230 of 1973) for instituting this suit without issuing a 90 days notice .. On the second point of objection it is their submission the present suit was dismissed for non - appearance by the District Land and Housing Tribunal at Dodoma, in Application No. 83/2013. In the circumstance under Regulation 11 ( l) (b) of the Land Disputes Courts ( The District Land and Housing Tribunal) Regulations, 2002, the plaintiffs were supposed to apply to the Tribunal to set aside the dismissal order, instead of instituting a fresh suit like the present one. They pray for dismissal of the present suit with costs. The plaintiffs jointly replied the preliminary objections raised are devoid of merits; that they are not in the light with the 2 case of Mukisa Biscuits Manufacturing Co. Ltd Vrs Westend Distributors Ltd ( 1969) EA 696. The preliminary objections raised are not on point of Law as they need evidence to prove. They deny to have contravened Section 13 (a) of the Capital Development Authority Establishment Order as the same never existed. There is nothing in GN No. 230/ 1973 that established the so called Capital Development Authority rather the Capital Development Authority was established as a body corporate under the Public Co-operation Act 1969. That under Section 37 of Cap 216, the High Court has an original jurisdiction to entertain land disputes the value of which exceeds 50 million. This case is not speculative, it is a fresh suit therefore Section 11 ( 1) (b) and 11 (2) of the Land Disputes Courts {The District Land and Housing Tribunal) Regulations, 2002 are irrelevant. They pray for dismissal of the preliminary objection with costs. Despite the objections that have been raised against the present suit, this court found it necessary to visit the claim disclosed in the plaint, in paragraph 11, it is disclosed:- 3 11 "THAT, in consequence of the defendant's acts, the plaintiffs had suffered general damages for trespass of Tshs. 120,000,000/=". Moreover on the prayers, the plaintiffs prayed for judgment and decree against the defendant:- (a) A declaration that the plaintiffs are the legal owners of the 8 acres located at Nzuguni village, Mapinduzi Kitongoji. (b) A declaration that the defendant is a tress passer and the survey conducted by the defendant without notice to the owners is void. (c) Payment of 120,000,000/= being general damages for tress- pass. (d) Costs of the suit to be paid. (e) Any other relief as this honourable court may deem fit just and equitable to grant. Looking at the above although under paragraph 13 · the plaintiffs stated, the value of the subject matter is 200,000,000/= this court found no evidence to the value of the property from the annextures to the plaint. It means therefore that the pecuniary jurisdiction of this court is not indicated. 4 Further the pecuniary jurisdiction has not been determined because the plaintiffs in their prayer ( c), claimed for payment of 120,000,000/= being general damages for trespass while under the decision in M/S TANZANIA- CHINA FRIENDSHIP TEXTILE CO. LTD VRS OUR LADY OF THE USAMBARA SISTERS, ( 2006) TLR 70, it was held general damages _could not be used to determine the pecuniary jurisdiction of the Courts since Section 13 of the Civil Procedure Code requires that every suit be instituted in the Court of the lowest grade competent to try it. In the . present case, the plaintiffs claim for general damages as among the reliefs since that the general damages cannot determine the pecuniary jurisdiction of the court, this court has no jurisdiction to entertain this suit. Therefore this suit is struck out with costs. It is ordered. UJl ( H. H. KALOMBOLA) JUDGE 31/05/2016 5