LAND APPEAL NO 10210 OF 2024 scanned

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 10210 OF 2024 (Arising from Application number 40 of 2022, before Hon. J. M. Bigambo at the District land and Housing Tribunal Ubungo District) MARY ALPHONCE MASKINI (Being Administrator of the Late SOSTEEN SHIRIMA'S Estate)....................... APPELLANT VERSUS PAULINE ABDI HOZA (Being Administrator of the Late ABDI MOHAMED HOZA'S Estate)............ 1st RESPONDENT ANNA ABDI HOZA (Being Administrator of the Late ABDI MOHAMED HOZA'S Estate)........... 2nd RESPONDENT RULING Date of Last Order:28.08.2024 Date ofJudgment:30.08.2024 T.N. MWENEGOHA, J: The appellant was aggrieved by the Judgment of the District Land and Housing Tribunal of Ubungo delivered by Hon. J. M. Bigambo on August 7th, 2024. However, being out of time, she instituted Miscellaneous Application number 722 of 2023 before Hon. Luvanda J. to pray for extension of time to lodge and Appeal before this Court. Upon being granted such extension, she i lodged an Appeal against the entire Decision of the District Land and Housing Tribunal at Ubungo on the following grounds: 1. The Honorable Trial Chairperson erred in law and fact deciding to admit Annexure B (search), stating that it constituted electronic evidence and was not an original document. 2. The Trial Chairperson erred in law and fact by deciding that, there was no agreement between the appellant and the respondent, despite there being evidence pointing to such express agreement between them, more so, even if the express agreement was unenforceable, the money deposited into the respondent's account was supposed to be themselves, as to the use of the funds and provide evidence of such, however they abandoned the case altogether. 3. The Honorable Chairperson erred in law fact by deciding that there was insufficient evidence to ascertain that the transferred money was intended for the purchase of land further that, since transfer of money was provided a resulting trust was formed. It was her prayer among other, that the Appeal be allowed. The Appeal was Ordered to proceed by way of written submissions. However, as I was going through the case, I came across a matter that raises an issue of competence of Appeal at the Trial Tribunal level. That, the issue was not a land matter but rather a contractual matter. The parties were notified of the said issue and were Ordered to address the Court on the same, as it touches the competence of the Appeal at hand and the Application at the Tribunal. Both 2 parties complied and I have taken their argument into consideration even though the same will not be reproduced herein. In determining the issue raised by this Court, I go back to the Application of the appellant herein at the Trial Tribunal where the appellant herein in her Application stated that while exercising her duties as an administratix of Sosteen Leon Shirima she came across a contract of sale of land between the deceased and the respondent which was not concluded. In that Application she advanced the following prayers; a) Order for refund or completion of the contract b) Cost for loss ofprofit of Tshs 20,000,000/= c) Cost of the case d) Any other relief the tribunal deemed fit to grant. Further to that, when the appellant was aggrieved by the Decision of the Trial Tribunal she instituted this Appeal claiming among other that "The Trial Chairperson erred in law and fact by deciding that, there was no agreement between Appellant and Respondent, despite there being evidence pointing to search express agreement between them, more so, even if the agreement was enforceable, the money deposited into the respondent account was supposed to be refunded to the appellant..." Looking at all the above, it is with no doubt that the matter is of contractual nature and not on ownership of land. Indeed, it is an agreement to buy land however, the same has not been concluded hence several contractual principles need to be determined as to whether there was a valid agreement. Also, determination of appropriate remedies in such circumstances of that of 3 the case described. It is therefore not a land matter to be tried at the Land Tribunal. For these reasons, Decision of the District Land and Housing Tribunal in respect of Land Application No. 40 of 2022, is illegal as the Tribunal did not have jurisdiction to adjudicate the matter. The same cannot stand. In the event and basing on the reasons and findings above, I use my powers given under section 43 of the Land Disputes Courts Act, Cap 216, R.E 2019 and proceed to revise and nullify the whole proceedings of the Trial Tribunal, vide Land Application No. 40 of 2022, quash its Decision and aside its Orders. Parties are restored to their original position. No Order as costs. TJMTMWENEGOHA JUDGE 30/08/2024 4