mohamed shabani vs zaharani mohammed 2 1999 tzca 12 31 august 1999

IN THE COURT O F APPEAL O F TANZANIA AT PAR ES SALAAM (CORAH: RAMADHANI, Ag. C.J., MFALILA, J.A., And SAMATTA, J.A.) CIVIL APPEAL NO. 53 OF 1996 BETWEEN MOHAMHED S H A B A N I .... ...... APPELLANT AND ZAHARANI MOHAMMED .... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Bahat i , J .) dated the 10th July, 1990 in Civil Appeal No. 5 of 1988 J U D G M E N T RAMADHANI, Ag. C . J . : This is a protracted matter having started in the Primary Court o f Mvomero, Morogoro, some time in 1986. The judgment of the High Court was delivered on 10/7/1990. The respondent, Zaharani, successfully sued the appellant, Mohammed, for trespassing on a piece of land given to him under an offer of a right of occupancy No.26^730 of 11/11/1983* O n appeal to the District Court by Mohammed, that decision was reversed. However, the High Court, on a second appeal, reinstated the judgment of the Primary Court and hence this appeal. The appellant was represented by Mr. Mlcate, learned advocate, while the respondent appeared in person. Mr. Mkate had two grounds o f appeal but we think that the fate of the appeal hinges on the first ground: That the Frimary Court of Mvomero, had no jurisdiction to entertain the case on the grounds that the suit land was held on a right of occupgKiipy granted by the Morogoro - 2 - Land Authorities under the Land Ordinance under Hati No. 26^730 of 11/11/1983. Mr. Mkate cited to us sections 18 and 6 3 of the Magistrates Courts Act, 1984, as his authority for the proposition contained in that ground. The respondent, being a layman, did not advance any legal arguments. Now, section 18 provides: 18.~(1) A primary court shall have and exercise jurisdiction - (a) in all proceedings of a civil nature - (i) where the law applicable is customary law or Islamic law: Provided that no primary court shall hav e jurisdiction in any p roceedings affecting the title to or any j^nterest in land registered under the Land Registration Ordinance; (emphasis is ours). Again section 63(1) of the same Act provides: Subject to the provisions of any law for the time being in force where jurisdiction in respect of the same proceedings is conferred on different courts, each court shall have a concurrent jurisdiction therein. Provided that no civil proceedings in respect of marriage, guardianship or inheritance under customary law, or the incidents thereof, and no civil proceedings in respect of immovable property, other than proceedings - 3 - relslxnf? to land hel d on a Government lease or a rifjht of occupancy granted under the Land Ordinance or proceedings under section 22 or 23 of the Land Ordinance shall be commenced in any court other than a primary court unless the Republic is a party thereto or unless the High Court gives leave for such proceedings to be commenced in some other court. It is palpably clear from the two provisos quoted above that primary courts do not have jurisdiction to conduct proceedings on immovable property registered under the Land Registration Ordinance or held on a Government lease or a right of occupancy under the Land Ordinance. In the present case the respondent has been granted an offer of a right of occupancy under the Land Ordinance since 11/11/1983. No evidence has been adduced to show that the High Court has given leave to commence these proceedings in the Primary Court. Therefore, we agree with Mr. Mkatte that these proceedings were started in a wrong forum and they are thus a nullity. We hereby quash them. Whoever, is desirous of filing fresh proceedings may do so, in a proper venue. Each party is to bear its own costs. DATED in DAR ES SALAAM this 31 st day of A ugust, 1999. A . S 0 L 0 RAMADHANI Ag. CHIEF JUSTICE L. M. MFALILA JUSTICE OF APFEAL B, A. SAMATTA JUSTICE O F APPEAL I certify that this is a true copy of the original. a,'J n ■■, ( A.G. MWARIJA ) DEPUTY REGISTRAR