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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL CASE NO. 405 OF 2024 {Arising from ruling and drawn order of the District Land and Housing Tribunal for liaia District at Kivukoni in Land Application No. 120 of2023 before Hon. M Nguiambwa- Chairman delivered on 29/09/2023) MSABAHA MGEJA MSABAHA....................................................... APPELLANT VERSUS JENIFA MSABAHA KWEKA @ JENIFA IBENEZA....................RESPONDENT JUDGMENT 27&31/5/2024 WNNE., J This appeal originates from the decision of the District Land and Housing Tribunal for Ilala at Kivukoni (trial tribunal), whereby, the appellant, Msabaha Mgeja Msabaha, sued the respondent claiming for the recovery of the land located at Zavala Street, Buyuni ward, Ilala, Dar es Salaam, which was alleged to be transferred by the respondent to her children. Before the trial tribunal, the appellant sought for the following orders:- "(i) Uhamisho wa umriki wa eneo bishaniwa u/iofanywa na Mjibu maombi kwenda kwa watoto wake ni batik kwa kusosa ridhaa ya Mieta maombi 1 (ii) Mieta maombi na Mjibu maombi ni wamiliki haiaiH wa eneo bishaniwa. (Hi) Gharama za usumbufu kiasi cha shiHngi Miiioni kumi na tano (Tshs.15,000,000/=; (iv) Gharama za kesi (v) Nafuu nyinginezo Baraza hili Htaona zinafaa." The brief facts, which led to the institution of the application before the tribunal are;- That, the appellant and the respondent are living under the umbrella of the so called presumption of marriage since 2019. In the year 2021, both the appellant and respondent bought the landed property in the name of Jenifa Msabaha Kweka (respondent). The said land was involved in a dispute, which resulted to exchange of another land in the same name. It is undisputable that, the parties erected the house in the suit land in which they are currently residing. That, it is the appellants version that, the respondent, without his requisite consent decided to change the ownership to her children who are not the appellant's biological children. The alleged respondent's act prompted the appellant to rush and seek redress at the trial tribunal. 2 At the trial Tribunal, the respondent disputed the claims and raised a preliminary objection on point of law to the effect that, the trial Tribunal lacks jurisdiction to entertain matrimonial proceedings. The Tribunal sustained the respondent's preliminary objection by holding that it lacks jurisdiction because the matter, which was brought before it, involves matrimonial dispute and Sand not dispute. Thus, the appellant's application was dismissed. Aggrieved, the appellant has approached this court armed with the following grounds of appeal 1. Kwamba Mwenyekiti wa Baraza la Ardhi na Nyumba la WUaya alijielekeza vibaya kisheria na kimantik kwa ktozingatia kwamba Mrufani na Mrufaniwa hawana mgogoro wowowte wa ndoa ball mgogoro wa ardhi unaohusu umiiiki ambaop umaamishwa na Mrufaniwa kwenda kwa watoto wake wan je ya ndoa. 2. Kwamba Mwnyekiti wa Baraza ia Ardhi na Nyumba ia Wiiaya alijielekeza vibaya kisheria na kimantik kusema kwamba maombi ya Mrufani yaiikuwa yanahitaji Baraza Ukubaii kwamba Mrufani na Mrufaniwa wana dhana ya ndoa. 3 3. Kwamba Mwenyekiti wa Baraza la Ardhi na Nyumba la WHay alijielekeza vibaya kisheria na kimantiki kwa kuamua kufuta (Dismissed) maombi ya Mrufani. 4. Kwamba Mwenyekiti wa Baraza ba Nyumba la WHaya alijielekza vibaya kisheria na kimantiki kufikia maamuzi kusema kwamba Baraza iiiikuwa haiina mamlaka kwani iiikuwa mni kesi ya ndoa "Matrimonial" na siyo kesi ya ardhi." Hearing of the appeal was by way of written submissions and the appellant had a service of Mr. Zawadi Beatus Lupelo, learned advocate, while the respondent enjoyed the service of Ms. Jaddnes Jasson, learned advocate. Supporting the first ground of appeal, it was submitted that, the trial Chairperson erred in law and in fact by thinking that the instant matter is a matrimonial dispute and forgot that any dispute relating to change of ownership to another person where the owners are husband and wife is land dispute and not matrimonial dispute. Regarding the second ground of appeal, it was stated that, the trial Chairperson misdirected himself by stating that the appellant was required to obtain certificate for the tribunal that the parties have a presumption of marriage while the parties are married couple and they 4 do not have any matrimonial dispute and they are living together. It was stated further that, the appellant did not institute the suit for the purpose of blessing the presumption of marriage between the parties but he was claiming for ownership of land that was transferred to other persons without his consent. On the third ground of appeal, it was submitted that, the act of the trial Chairperson to dismiss the application means he closed the door for the applicant to bring a fresh application after the applicant goes to the matrimonial court and the court has declared that the appellant and the respondent are husband and wife. The case of Davis Jonath Mkoy vs Equity Bank Tanzania Limited & 2 Others, Land Case No. 123/2023 was referred to support the argument. It was submitted further that, the trial Chairperson was supposed to 'strike out' the application and not to 'dismiss it' so that, if the dispute goes to the matrimonial court and the court declare that, the parties herein are the husband and wife, the parties can be able to pursue their right if they see it reasonable. On the fourth ground of appeal, it was submitted that, the trial Chairperson misdirected himself by stating that the trial Tribunal has no 5 jurisdiction while the dispute brought before it was a matrimonial dispute relating to the change of ownership to other people. Replying to the appeal, Ms. Jaddnes consolidated the 1, 2 and 3 grounds of appeal and argued them together by submitting that, ay paragraph (i), (ii), (v) and (viii) of the application, the applicant indicated the relation that exist between them as husband and wife respectively and indicated that the property was acquired jointly and thus the said house is the matrimonial asset. She further stated that, one of the reliefs prayed for is that, the Tribunal should declare them as lawful owners of the matrimonial properts. To her, such declaration cannot take place without considering the extent of contribution and without framing an issue as to whether the house in dispute is the matrimonial property or not. The counsel for the respondent stated further that, since the appellant believes that the parties acquired the property jointly, it should be a matrimonial property and any declaration of ownership cannot be determined without taking into account each one's contribution in the acquisition of the said property, hence making it a matrimonial proceedings. To bolster her argument, she referred to a case of Bi. Hawa Mohamed vs Ally Sefu (1983) TLR 32, Bank of Commerce 6 Ltd vs Nurbano Abdallah Mvulla, Civil Appeal No. 283 of 2017 and Bi. Mtumwa Madari Makam vs Abdalla Omar Said, Land Appeal No. 104 of 2021. Regarding the ground on the dismissal of the suit. The counsel for the respondent submitted that, when the court lacks jurisdiction, the remedy found under the law was to dismiss the case lather than to strike out. She stated that, the term striking out entails that there are minor defects which can be cured and the case can be refilled again in court. She added that, while the time limitation and jurisdiction is fundamental defect under which there cannot be any cure by refilling it again on the same court. Again, she stated that, the decree is the one, which gives right to the parties; the order in the decree is striking the matter out of the court. She concluded by praying for the appeal to be dismissed with costs. In rejoinder submission, the counsel for the appellant submitted that, paragraph 6(a), (vi) and (vii) of the application indicate that, the cause of action before the Tribunal was about unlawful transfer of ownership or unlawful disposition of a matrimonial house by the respondent. He stated that, it is unlawful disposition for want of spousal consent. 7 The counsel for the appellant submitted that, to determine whether the court or Tribunal have jurisdiction on matter before it or not, it is crucial to look at the prayers or reliefs sought and if the court can grant such reliefs or prayers, then the said court will be said to have jurisdiction. He stated that, the reliefs sought by the appellant were within its jurisdiction as they all related to the ownership of land and challenge against disposition of the land by the respondent. Mr. Zawadi further stated that, the appellant is not seeking for a decree of divorce or separation and he is not even seeking for the division of a matrimonial property for him to institute a matrimonial proceedings. He stated that, the parties are still living together, therefore, the matter cannot be termed as a matrimonial proceedings. To support his argument, he referred to the case of Bi. Hawa Mohamed vs Ally Sefu (Supra) and Marcel Kichumisa vs Mary Venant Kabirigi, Civil Appeal No. 52 of 2020. Having dispassionately gone through the grounds of appeal, the submissions by the parties and the entire records of appeal, I have opted to determine the first, second and fourth grounds of appeal of appeal together as they involve the issue on whether the trial tribunal had no jurisdiction to determine the matter because it is a matrimonial 8 dispute. The third ground of appeal will be determined separately, if need arises. Before going to the merits or demerits of this application, I wish to first reproduce the following paragraph, which contains the substance of the appellant's claim:- " Civ) Kwamba mwaka 2021 walibahatika kununua kiwanja ambacho kipo ndani ya Mtaa wa Zvaia, kata ya Buyuni, liaia, Dar es Salaam ambapo mieta maombi aiimtuma mke wake ambaye ni Mjibu maombi kwenda kununua eneo hiio na Mjibu maombi aiifanya manunuzi ambapo katika nyaraka za manunuzi aiiandika jina Hnaiosomeka Jenifa Msabaha Kweka Hkiwa na maana kwamba jina Jenifa iinasimama kama ndiye Mjibu maombi na Msabaha akiwa ndiye ieta maombi. (Hi) Kwamba, iakini eneo hiio walilolinunua Miata maombi na Mjibu maombi Hiiingia mgogoro na ikabidi kubadiiishwa eneo jingine ienye ukubwa wa Kaskazini mita 13, mashariki mika 13 Magharibu mita 14 na Kusini mita 15 ambapo katika zoezi ia kubadiiishiwa eneo hiio Mieta maombi aiimtuma tena Mjubu maombi kushughuiikia suaia hiio na Mjibu maombi aiifanikiwa kufanya hivyo. 9 (iv) Kwamba, tarehe 6/8/2021 Mjibu maombi alifanikishga zoezi hilo na kupewa eneo jingine ambapo pia Mjibu Maombi katika nyaraka ya manunuzzi aiiandika tena jina iinaiosomeka Jenifa Msabaha kweka iikiwa na maana ya kwamba jina ia Jenifa Hnasimama kama ndiye Mjibu maombi na jina Msabaha akiwa ndiye Mieta maombi. (vi) Kwamba, mwaka 2023, Mjibu maombi biia ridhaa ya Mieta maombi aiidiriki kwenda Serikali ya Mtaa na kufanya uhamisho wa umiliki wa eneo hilo na kwenda kwa watot wa Mjibu maombi ambawo amewapata nje ya ndoa na Mwanaume mwingine." Further, the appellant sought the following reliefs:- " 7. Kwamba Mieta Moambi anaHomba Baraza hili tukufu mabo yafuatayo katika maamuzi yake dhidi ya Mjibu MAOMBI, Baraza Htoe amri kwamba; (i) Uhamimsho wa umiliki wa eneo bishaniwa uliofanywa na Mjibu maombi kwenda kwa watoto wake ni batiH kwa kukosa ridhaa ya Mieta maombi (ii) Mieta maombi na Mjibu maombi ni wamiHki halali wa eneo bishaniwa (Hi) Nil io (iv) Nil (v) Nil I am guided by the above paragraphs and the reliefs sought, which vividly disclose the issues relating to land and not matrimonial one. It is a cardinal principal legal principle that, the parties are bound by their pleadings and that as a general rule, reliefs so sought or founded on the pleadings and which are not incidental to the specific main prayers sought in the plaint should not be awarded. (See Masaka Mussa vs. Rodgers Andrew Lumenyela & 2 Others, Civil Appeal No. 497 of 2021, Martin Fredrick Rajab vs. Ilemela Municipal Council and Another, Civil Appeal No. 197 of 20-19, Kombo Hassan vs. Paras Keyoulous Angelo, Civil Appeal No. 14 of 2008 and Dew Drop Co. Ltd vs. Ibrahim Simwanza, Civil Appeal No. 244 of 2020 (All unreported). In determining whether the dispute before the trial Tribunal was matrimonial or land dispute, the Tribunal was to consider the pleadings and the reliefs sought before it. Guided by the appellant's pleadings, I find the Tribunal erroneously held that, it had no requisite jurisdiction to determine the matter while the reliefs sought was on the change of li ownership of the suit land and the declaration that the parties are lawful owners of the suit property. Having determined this 1st ground of appeal as explained above, I would end here but there is an observation by the court that, without joining the ones whose names have been registered in the disputed piece of land, any decision would not be effectual. If the children of the respondent are not joined in the Application, in my considered view, there will be a serious breach of principle of natural justice, right to be heard. The principle of the right to be heard in a judicial proceedings is so fundamental to the extent that if anyone is denied of the same. In VIP Engineering and Marketing Limited and Others vs City Bank Tanzania Limited -(unreported- CAT) Consolidated Civil References No. 6, 7 and 8 of 2006 (unreported) emphasizing the importance of giving a party the right of hearing before making an adverse decision against that party, the Court of Appeal stated "The right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the Courts on numerous decisions. The right is so basic that a decision which is arrived at in violation of it would be nullified...." The intended persons to be deprived of their interests in the piece of land so registered in their names were to be joined and if still incapable, their 12 mother or any other person could be sued as a guardian of the respondent's children. That, said and done, by invoking provisions of section 43 of the Land Disputes Courts' Act, Cap 216, Revised Edition, 2019, I hereby quash and set aside the proceedings, decision and drawn order of the DLHT. Each party shall bear the costs of the appeal. Should the appellant persistently desire to pursue the dispute he may, subject to law of limitation, re-file it joining the necessary party. It is so ordered, DATED at DAR ES SALAAM this 31st day of May 2024. JUDGE 13