Makazi

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL N0.27394 OF 2023 District Land and (Arising from LandApplication No.299 of2020, of the Housing Tribunal for liaia) appellant MAKAZI SOLUTIONS (T) LTD VERSUS the iate RAMADHAN RASHID MALELA (The Administrator of. the Estate of RESPONDENT SELEMAN RASHID MLELA) JUDGMENT Date of Last Order: 17. 04.2024 Date ofJudgment: 29.04.2024 T. N. MWENEGOHA, 3. This Appeal emanates from the District Land and Housing Tribunal for 176 Ilala, herein after called the Trial Tribunal, vide Land Application No. of 2022. The centre of the dispute between the parties herein above was __ on a contract, which the late Seleman Rashid Mleia entered with the and divide into various appellant that, the appellant's company will survey and then the same plots, the land owned by the late Seleman Rashid Mleia to be sold to interested parties. That, after the said survey, the appeilant Will take 22% and the late Seleman Rashid MIela will take 78%. That, the appellant had failed to honor the agreement though the land has already ' been surveyed and divided into various plots and the same are being soid to the Interested persons. Owing to the actions of the appellant, the 1 respondent moved the Trial Tribunal to nullify the agreement and restore the parties to their original position by restraining the appellant from conducting any activity on the land in question. The Decision of the Trial Tribunal was in favour of the respondent, hence this Appeal, which was preferred with five grounds listed on the petition, including a ground touching the jurisdiction of the Trial Tribunal in entertaining the matter before it. Parties were ordered to address the Court on the issue of jurisdiction, as the same is a matter of law, before proceeding with the appeal at hand. submissions, Only the respondent addressed the Court through written His learned counsel, Mr. Alexander Kyaruzi was of the view that, the Trial Tribunal had a jurisdiction to try the suit before it. The dispute was not only on the contract of survey but also, there were prayers for the of the estate. recovery and possession of the suit land as an Administrator Since the relief of recovery of land was included in the application then William land dispute as stated in Charles Rick Mulaki versus that is a Jackson Magero, HC Civil Appeal No. 69 of 2017, High Court of Tanzania at Mwanza (unreported). I have gone through the submissions of the counsel for the respondent. He has insisted that, the Trial Tribunal had the required jurisdiction to entertain the suit before it, owing to the reasons that, there was a relief of recovery and possession of the disputed land, apart from the contract issue. Trial Tribunal, I have After going through the pleadings filed before the noted that, this issue was brought to the attention of the Tribunal by the appellant, now respondent inin her Written Statement of Defence, at paragraph 7, where she insisted that, the matter is a contractual dispute, which the Trial Tribunal lacks jurisdiction over it. Now, in looking whether a dispute is a land dispute or not, we have been guided by the case of Exim Bank O’) Limited versus Agro Impex (T) Limited and Two Others, Land Appeal No. 29 of 2008 where it was observed: - "Two matters have to be looked upon before deciding whether the court is clothed with Jurisdiction. One you of look at the pleaded facts that may constitute a cause 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 ofaction." Applying this principle in the case at hand, I have come to the conclusion that, this is not a land dispute. It is a contractual issue as evidenced by what has been stated at paragraph 6(a)(i)-(ix) of the Application. The basis of this dispute is not land, rather a contract that is said to have been entered between the appellant and the late Seleman Rashid Malela over of the land belonging to the deceased. The survey was the survey the some have conducted as agreed, several plots were produced and now respondent already been sold to various person. Tne applicant, terms of the agreement, claims that, the appellant had failed to honor the that after selling, the appellant was to take 22% while the remaining 78% of claim or cause of action goes to the late Malela. That is to say, the basis of contract. A land of the applicant at the Trial Tribunal, was breach Tribunal cannot deal with that, rather a normal civil court. Further, when I look at the reliefs, as stated in Exim Bank Limited (supra), the Tribunal was required to nullify the contract between the late Malela and the appellant. I have noted herein above, the District Land and Housing Tribunal has no such powers. It's powers are within iand disputes only. Secondly, the applicant wanted the Tribunai to order the whole premises, the subject matter of the said contract be returned. Again, such an order cannot be given unless the contract is terminated. Since the land then all other orders Tribunal cannot terminate the contract in question, Tribunal. following the event of termination, cannot be given by the said For these reasons, I agree with the appellant as stated in his ground and paragraph 7 of his Written Statement of Defence that, the Tribunal had no jurisdiction to entertain this dispute. Therefore, what transpired before it as far as this case is concerned was illegal, null and void. In the end, the Court nullifies the whole proceedings of the Tribunal vide the Judgment Land Application No. 176 of 2022 and proceeds to quash and set aside the Orders that followed it. Tfie parties are hereby restored to their original position . Whoever is still interested in the case, should institute the same at a proper Court, competent to try it. No order as to costs. It is so ordered. T. N. M A JUDGE 29/04/2024