KABAJEMI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND CASE NO. 21004 OF 2024 BETWEEN MOHAMED JUMAAN HADI................................................... PLAINTIFF VERSUS TWAHA ALI KABAJEMI......................................................... DEFENDANT RULING 24/09/2024 & 6/11/2024 N.E. MAN DI A, J This is a ruling on a preliminary objection taken at the instance of the the Defendant, attacking the competence of the suit which is pending in this Court. On 27th August, 2024 the Plaintiff instituted a suit against the Defendant, claiming inter alia that the Defendant has breached an agreement concerning the construction and occupation of eight (8) floors building on a property known as Plot No. 21, at Kariakoo Area in Ilala Municipality. The suit has encountered impediment, coming by way of preliminary objection raised by the Defendant. The objection is to the effect that: - i i. This Honorable Court lacks jurisdiction as the cause of action emanates from a contractual dispute between the parties and not a land matter; ii. The suit is time barred. Hearing of the preliminary objection was done through written submission as scheduled by the court and adhered by the parties. The Plaintiff enjoyed the legal service of Capt. Ibrahim Mbiu Bendera, learned counsel whereas, the Defendant had the legal service of Mr. Deogratius Kiritta, learned counsel. As the practice of the Court, I had to determine the preliminary objections first before going into the merits or demerits of the suit. In support of the 1st point of the preliminary objection, Mr. Kiritta submitted with reference to s. 3 (1) and (2) of the Land Disputes Courts Act [Cap. 216 R.E 2019] that, this court shall only entertain and determine dispute on land matters. The counsel also referred to Rule 5E of the High Court Registries Rules, GN. No. 96 of 2005. Mr. Kiritta contended that nothing other than proceedings concerning land may be instituted in the Land Division of the High Court. He referred to the case of BADDI TWAHA ALLY v. CRDB BANK PLC & ANOTHER, Land Case No. 175 of 2023, [2023] TZHCLandD 16922 where it was held that; vCTr 2 "In order to properly determine whether or not this court has jurisdiction over the matter at hand, first, we must resolve the question as to what constitute a land dispute. A "land dispute" involves conflicting claims to rights in land by two or more parties, focused on a particular piece of land, which can be addressed within the existing legal framework. The parties to a land dispute must have conflicting interests/daims on either ownership, usage or possession of land." Mr. Kiritta also referred to the case of MSIMBAZI CREEK HOUSING ESTATES LTD & 3 OTHERS v. DIAMOND TRUST BANK TANZANIA PLC, Land Case No. 79 of 2023, [2023] TZHC which cited the CAT decision in FANUEL MANTIRI NG'UNDA K. HERMAN M. NG'UNDA, Civil Appeal No. 8 of 1995 (unreported), that: "The jurisdiction of any court is basic, it goes to the very root of the authority of the Court to adjudicate upon cases of different nature... the question ofjurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. It is risky and unsafe for the court to proceed on the assumption that the court has jurisdiction to adjudicate upon the case." Mr. Kiritta contended that in making an assessment as to whether the matter at hand falls within the category of land disputes or not, one has to go through the contents of the Plaint together with the reliefs claimed. He 3 referred to the case of MSIMBAZI CREEK HOUSING ESTATES LTD (supra) where it was stated that: - "Two matters have to be looked upon before deciding whether the Court is clothed with jurisdiction. One, you took 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 the power to grant them and whether they correlate with the cause of action... The claim therefore against the first defendant is found on a credit facility. On the part of the second and third Defendant the cause of action in founded on a contract ofguarantee." Mr. Kiritta contended further that in the instant case, the cause of action is founded on the breach of the agreement between the Plaintiff and the Defendant for construction of the 8-storey building and that the reliefs sought are clearly based on the breach of the said agreement which cannot be granted by this Court. He cited the case of ALI SHAIBU KHAMIS v. SHER-MOHAMED BAHDOUR (Legal Representative of HAJRA BIBI MOHAMED HUSSEIN), Land Case No. 117 of 2021, [2022] TZHCLandD 87 where it was held that: - "It is not in dispute that the High Court is creature of the Constitution and ait High court judges when entertaining matters before them in courts, have equal jurisdiction. Although Sections 3(1) and (2) of the Land Disputes Courts Act, (supra), 167 of Land Act(supra) and 62 of the Village Land Act (supra) provides for ranks of courts with the jurisdiction to entertain land matters, 4 but then again section 4 of the Judicature and Application of Laws Act (supra) and the High Court Registries rules of 1984 empowered the Hon. Chief Justice of Tanzania to make Rules for as sub-registries of the Land Court. The High Court Land Division deals with matters relating to land only. Although all High Court judges have equal jurisdiction, but those sitting in the High Court Land Division are mandated to hear and determine matters related to land only. Other matters unrelated to land are not permitted to be instituted into the land registry." Mr. Kiritta submitted that, from the pleaded facts that constitute the cause of action and the reliefs claimed, it is obvious that, the Plaintiff does not claim ownership, or the right to use or possess the house as against the Defendant. The Plaintiff's interest is only for a declaration that the Defendant had breached the agreement dated 26th May, 2010 between the parties herein and a further declaration that the additional agreement dated 04th February, 2014 is null and void. He was of the view that this Court lacks jurisdiction as the cause of action emanates from a contractual dispute and not a land matter hence, this Court cannot grant the prayers sought by the Plaintiff. On the 2nd point of the preliminary objection, Mr. Kiritta referred to section 14 of the Law of Limitation Act, [Cap. 89 R.E. 2019]. He contended that the period of limitation of the right of action in relation to any 5 proceeding commences from the date on which the right of action for such proceedings accrues. He referred to the case of CRDB (1996) LTD v. BONIFACE CHIMYA [2003] T.L.R 413. Mr. Kiritta also referred in the case of LINDI EXPRESS LTD v. INFINITE ESTATE LIMITED, Commercial Case 17 of 2021, [2021] TZHCComD 3313 where it was held that: - "In this matter at hand, the alleged cause of action as per the Plaint is breach of contract. According to Haisbury's Laws of England, 4th Edn., Vol. 28 it is stated, in paragraph 662, that: "In an action for a breach of contract the cause of action is the breach. Accordingly, such an action must be brought within six years of the breach; after the expiration of that period the action will be barred, although damage may have accrued to the plaintiff within the six years of action brought." Mr. Kiritta contended that item 7 of the Schedule to the Law of Limitation Act (supra) prescribes that, claims relating to breach of contract be brought within six years of the breach. That according to section 5 of the said Act, the accrual date is the date when the cause of action arises, which in this case was 22nd November, 2011 when the Defendant obtained the Building Permit for the construction of the 5-storey building on the suit property instead of the 8 storey as agreed in the original agreement. That from the accrual date 22nd November, 2011 to 27th August, 2024 when this suit was 6 filed, more than 13 years have passed. The counsel referred to section 3(1) and (2) (a) of the Law of Limitation Act (supra) to substantiate his argument that every proceeding which is instituted after the period of limitation prescribed shall be dismissed whether or not limitation has been set up as a defence. Mr. Kiritta submitted that the suit is hopelessly time barred and prayed for the second point of the preliminary objection to be upheld and the Plaintiff's suit be dismissed with costs. In rebuttal, on the 1st point of preliminary objection, Capt. Bendera admitted that matters to be determined by this Court are stipulated in the provisions cited by Mr. Kiritta. Capt. Bendera was of the view that the fallacy of understanding the meaning of the word "land" has made the Defendant to come up with the untenable objection. He contended that s. 2 of the Land Disputes Act(supra) which is a replica of s. 2 of the Lands Act, [Cap 113 R.E. 2019] defines land as follows: "land" includes the surface of the earth and the earth below the surface and all substances other than minerals and petroleum forming part of, or below the surface, things naturally growing on the land, buildings and other structures permanently affixed to or under land and land covered by water." Capt. Bendera contended further that the definition of land is found under the maxim Quicquid Plantatur Solo, Solo Cedit, which means whatever is 7 affixed to the land belongs to the land. Therefore, title to the fixture is a part of the land and passes with title to the land. Consequently, whosoever owns that piece of land will also own the things attached. He referred in the case of REGISTERED TRUSTEES OF DODOMA GENERAL MUSLIMS ASSOCIATION v. REGISTERED TRUSTEES OF BAKWATA [2009] TZHC 232 where it was stated that: - "The stance of the law is dear, that anything permanently attached to the land is part of that piece of land". Section 2 of the Land Disputes Court Act, Cap 216 R.E 2002 defines land as "The surface of the earth and the earth below the surface and all substance other that minerals and the petroleum forming part of the or below the surface, things naturally growing on the land, building and other structures permanently affixed to land' [Emphasize added] Capt. Bendera submitted that when you look at paragraphs 3, 4, 5, 6, 7, 8, 9 of the Plaint and the prayers sought are all concerned with a breach of an agreement for the construction and the occupation (usage) of a building, situated on Plot No. 9 Block 21, Kariakoo. He was of the view that, since it is concerned with the breach of an agreement for construction and usage of the building, then it is a land matter. The counsel conceded to the holding in BADDI TWAHA ALLY'S case (supra) that parties to a land dispute must have conflicting interests/ claims on either ownership, 8 usage or possession of land. However, he was of the view that BADDI TWAHA ALLY'S case is distinguishable to the instant case. Capt. Bendera submitted further that the counsel for the Defendant mistakenly and with oblivious lack of understanding, alleged that this Court lacks jurisdiction as the cause of action emanates from contractual dispute that, he ignored the fact that a contract, under s.2(l)(g) of the Law of Contract [Cap 345 R.E. 2002], is defined as an agreement which must be enforceable by law. That Mr. Kiritta's position is contrary to s.2 of both the Land Disputes Courts Act(supra), and the Lands Act(supra). Capt. Bendara was of the view that if a matter concerning building is a land matter there is no wrong with a contract for constructing and the usage of a building. Rebutting on the second point of preliminary objection, Capt. Bendera submitted that the parties entered into an agreement on 26th May 2010 and agreed that the Defendant would construct 8 storeys building and, nearly four (4) years later, on 6th February, 2014 the cause of action accrued when the alleged amended agreement for construction of five (5) storeys instead of 8 storeys was entered. That from that time when the amendment was done until today, it is a period of 10 years and 8 months, a period which is well within the time limit for land disputes. He argued 9 that Mr. Kiritta wrongly pointed item 7 of the Schedule to the Law of Limitation Act (supra) as applicable in the instant case. Capt. Bendera prayed that this Court reject the second preliminary objections by dismissing it with costs. Rejoining to the rebuttal submission, Mr. Kiritta reiterated his submission in chief. He submitted that the Plaintiff's reply submission is misguided and is full of confession that the pleaded facts in the Plaint and the reliefs sought do actually talk about and or covers the breach of contract and not possession, ownership, claim of right and or the right to use the land. That, it is not in dispute that the Plaintiff and his wife were the rightful owner of the suit property before the agreement for redevelopment of the suit property by the Defendant. That it is on the basis of the said agreement that all the facts pleaded points to the Defendant's failure to timely fulfil his obligations under the contract. Mr. Kiritta was of the view that the allegation for breach of the contract clearly makes the cause of action to arise from the Defendant's breach of the said contract and makes the Plaintiff's suit against the Defendant untenable before this Court for want of jurisdiction. He went on to reproduce the 10 Plaintiff's prayers and reliefs sought in the Plaint to illustrate his objection that the cause of action is the breach of contract. Mr. Kiritta contended that there is nothing from the relief sought and or prayers in the Plaint touching the ownership or claim of right over the suit property and, that the reliefs sought cannot be granted by the High Court, Land Division. That the Plaintiff's submission at page 3 clearly admits that the facts pleaded in the Plaint and the reliefs sought therein are all about breach of the contract. On the 2nd point, Mr. Kiritta submitted that, since this matter is not a land dispute, the Plaintiff is again misguided. That the Plaintiff in his reply submission admitted that the cause of action arose on 6th February, 2014 which makes it 10 years and 8 months to the time of filing of this case. That a claims relating to breach of contract must be brought within six years of the breach as provided for under Item 7 of the Schedule to the Law of Limitation Act(supra). Mr. Kiritta was of the view that according to the facts pleaded and reliefs sought by the Plaintiff, this is not a suit for recovery of land and therefore Item 22 of the Schedule to the Law of Limitation Act (supra) cannot apply. That the Plaintiff is not trying to recover land from the Defendant, but he is seeking for the Court's li declaration that the Defendant has breached the agreement for the construction of the eight-storey building. That in his reply submission at page 5, the Plaintiff admitted that the cause of action arose on 6th February, 2014 when the additional agreement was signed. Despite that fact, the Plaintiff is praying for the Court to declare the additional agreement null and void. Mr. Kiritta was of the view that the relief sought by the Plaintiff implies that the cause of action arose from 26th May, 2010 when the initial agreement was executed hence, according to Item 22 of the Schedule to the Law of Limitation Act(supra) the suit is time barred. After going carefully from the submissions made by learned counsels, the issue for determination is whether or not the preliminary objections raised by the Defendant have merits. However, before embarking on the rival submissions, i feel obliged at the outset to state, though in brief, that the court is duty bound to ensure that before a suit is instituted, it's jurisdiction as expressly conferred upon it by the law is established. This trite position has been underscored in several decisions, both by this Court and in the Court of Appeal of Tanzania, (see Consolidated Holding Corporation Ltd. v. Rajani Industries Ltd & Bank of Tanzania, Civil Appeal No. 2 of 2003 CAT (unreported), Shyam Thanki and Others v 12 New Palace Hotel HCD No 97 and Fanuel Mantiri Ng'unda v. Herman M. Ng’unda, Civil Appeal No. 8 of 1995 CAT (unreported). In Fanuel Mantiri Ng’unda case (supra) the CAT underscored the importance of jurisdiction as follows: "The jurisdiction of any court is basic, it goes to the very root of the authority of the Court to adjudicate upon cases of different nature... the question ofjurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. It is risky and unsafe for the court to proceed on the assumption that the court has jurisdiction to adjudicate upon the case". Therefore, in order to properly determine the question of jurisdiction, it is pertinent to find out whether the suit at hand is a land or commercial dispute. To determine the 1st point of objection, I found it necessary to peruse the Plaint to look at the nature of the cause of action, the facts are very clear in paragraph 3 of the Plaint, the cause of action arose after the Defendant breached an agreement for construction of the 8-storey building. Paragraph 3 of the Plaint is coached in the following words: - "THA T, the Plaintiff claims against the Defendant for breach of the agreement reached between the parties concerning the construction and occupation of Eight (08) floors building of a property known as Plot No. 9, Block 21, at Kariakoo Area in Ilala Municipality, (herein referred to as the "Property"); furthermore 13 the Plaintiff claims against the Defendant loss of revenue for not giving him the 6th Floor of the Property since 2&h day of May, 2010 tol/h August, 2024 amounting to Two Hundred and Thirty Five Million and Two Hundred Thousand (Tshs. 235,200,000/) and as it increases until it is provided". From the foregoing paragraph, it is my considered view and, as rightly submitted by Mr. Kiritta, which I fully subscribe that the matter at hand is purely related to the contract and not land matter. It is an outcome of an unperformed agreement that is far away from the jurisdiction of the High Court Land Division. The counsel for the Plaintiff has also admitted that paragraphs 3, 4, 5, 6, 7, 8 and 9 of the Plaint and the prayers sought are all concerned with a breach of an agreement for the construction and the occupation of a building, situated at Plot No. 9 Block 21, Kariakoo. He was of the view that, since it is concerned with the breach of an agreement for construction and usage of the building, then it is a land matter. I partly agree with Capt. Bendera that the said paragraphs and prayers sought are concerned with breach of an agreement. I strongly disagree with the counsel that since the present suit is concerned with breach of an agreement for construction and usage hence, it is a land matter. At this point i am persuaded by the holding of my brother Hemed, J in BADDI TWAHA ALLY' case (supra) that a "land dispute" involves 14 conflicting claims to rights in land by two or more parties, focused on a particular piece of land and that the parties to such a dispute must have conflicting interests/claims on either ownership, usage or possession of land. Mr. Kiritta submitted and I concede that it is not in dispute that the Plaintiff and his wife were the rightful owner of the suit property before the agreement for redevelopment by the Defendant. This contention is substantiated by annexure MJH-1 to the Plaint titled MKATABA WA KUJENGA NYUMBA. Part of the preamble of the said annexures read as follows: "KWA KUWA MOHAMED JUMAAN HADI na BI RAHMA SAID JAMIL ni wamiliki halali wa Kiwanja No.9 Kitalu No. 21 Gerezani Kariakoo" this implies that the Plaintiff was the rightful owner of the said property hence, cannot claim ownership, usage or possession of it instead he claims that the Defendant has failed to construct the eight (8) storrey building hence, breached the agreement. It is my considered view that the pleaded facts show that the cause of action in the present suit is founded on the breach of an agreement. Again, looking at the reliefs claimed by the Plaintiff which includes inter alia the declaration that the Defendant had breached the agreement dated 26th May, 2010 and that the additional agreement between the 15 parties dated 6th February 2014 is null and void for covering the construction of eight floors building based on a foundation constructed to fulfil a building permit for construction of five storey building. It is clear also from the foregoing that the relief sought emanates from the alleged breach of the said agreement. In the same vein I do not see the power of this Court to grant the sought relief as they are found on a breach of an agreement which is not a land dispute. Having looked careful at the fact pleaded in the Plaint and the relief sought by the Plaintiff, I do not see a cause of action involving land dispute. In the end result, I see nothing which would give jurisdiction to this Court to entertain this suit. Thus, in my considered view, this suit has been preferred in the wrong forum that renders it entirely untenable. As rightly stated in the case of MSIMBAZI CREEK HOUSING ESTATES LTD (supra) quoting the case of Fanuel Mantiri Ng'unda that: "The jurisdiction of any court is basic, it goes to the very root of the authority of the Court to adjudicate upon cases of different nature ... the question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. It is risky and unsafe for the court to proceed on the assumption that the court has jurisdiction to adjudicate upon the case". [Emphasis added] .^■X^O 16 It is trite that jurisdiction of court goes to the root of the authority of the Court to adjudicate upon cases of different nature and in the instant case this courts lacks the jurisdiction to entertain the suit. I find it risky and unsafe to proceed with the 2nd point of the preliminary objection as it will serve nothing. I, therefore, proceed to uphold the 1st preliminary objection on points of law raised by the Defendant's Advocate. In the end result, I strike out this suit with costs. Order accordingly. DATED at Dar es Salaam this 6th day of November, 2024 17