20100204 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL REVISION N0.18 OF 2009 MTWAZI HAMZA MTWAZI ........................................... APPLICANT vs. RAMADHANI AMIR ...................................................... RES PON DENT Date of last Order:-01/11/2010 Date of Ruling:-04/02/2010 RULING Aboud, J The application is made under Order XXI Rule 24, XLIII Rule 2 and Section 95 of the Civil Procedure Code (R.E 2002) as well as Section 30 (1) (a), 31(1) (ii) of the Magistrate Court Act (Cap 11 R.E 2002), and any other enabling provision of the law. The applicant is praying for the following orders that; 1. An order for stay of execution of the ruling and orders of Temeke District Court at Temeke (Hon. H. Riwa) in Civil Revision No. 7 of 2009 dated at 09/04/2009 pending the determination of an application for revision. 1 /' 2. An order that the Honorable court be pleased to revise and quash the ruling and orders of Temeke District Court at Temeke (Hon. H. Riwa) in Civil Revision No. 7 of 2009 dated 09/04/2009. 3. Any other orders the Court may deem fit and just to grant. 4. Costs be provided for. On 19th day of April 2010 the respondent filed a preliminary objection on point of law that, this application is not properly before the court in as much as is grounded on proceedings and judgments which are null and void ab-initio for want of jurisdiction by the trial court to determine ownership of a disputed land /house. This court ordered parties to argue the application by way of written submission of which the parties complied with. The applicant is represented by Mr. Shirima while the respondent is represented by Mr. Kobas. Upon arguing the application the respondent through his representative Mr. Kobas, learned Advocate, submitted that the proceedings, ruling and judgment of the Primary Court and District Court are null and void ab-initio for want of jurisdiction and for being time barred which this court is invited to quash both proceedings of the Primary and District Courts. He further submitted that, the applicant who was the 2 petitioner in the Primary Court was appointed as administrator of the estate of the deceased, therefore having failed to gain the house in question, that is Plot No. 27 Block "O" Chihota Street, he should have instituted separate proceeding in a court of competent jurisdiction to determine ownership of a disputed house rather than referring the dispute in the very probate proceedings for determination by the Primary Court. In so doing the Primary Court entertained and determined issues of disputed ownership of land of which it has no jurisdiction. The counsel supported his argument with several provisions of the law among them is Section 3 of the Courts (Land Dispute Settlement) Act, 2002 which establishes land courts and their jurisdiction of which Primary Court is not among them. He also cited Section 4(1) of the same Act which provides inter alia that no magistrate court established by the Magistrate Courts Act, 1984 shall have civil jurisdiction in any matter under, the Land Act, 1999 and the Village Land Act 1999. He submitted that such position of the law was clearly reflected in the case of IBRAHIM KUSAGA vs. EMMANUEL MWETA 186 TLR at paragraph D and E. Therefore proceedings culminating this application for revision emanated in a court without jurisdiction. Secondly, the respondent submitted that the Primary court entertained and determined disputed land which was time barred. That the applicant referred the matter to the Primary court in the year 2007 almost 3 fourty (40) years claiming a declaration order of ownership and eviction order against the respondent while the respondent has been in a peaceful occupation and ownership since 1967, therefore the case against the ownership of that house instituted in 2007 was time barred. He supported his argument with the Law of Limitation Act (Cap 89 R.E 2002) under item No. 22 of Part I which requires suits for recovery of land to be instituted within 12 years. Therefore the respondent pray that the application is grounded and emanated from a court without jurisdiction and were time barred so they are nullity and should be quashed with costs and whoever is aggrieved should refer the matter in a competent court for relief. Responding to the respondent submission the applicant submitted that the preliminary objection raised by the respondent has no legs to stand on as it does not qualify to be a preliminary objection because in order to determine the objection one needs to bring extraneous evidence - ----- which amounts to hearing the revision itself before the same is due. He supported his argument with the case of Mukisa Biscuits Manufacturing Co. LTD VS. West End Distributors LTD {1969} 1.EA 696 where it was held that; •~ .. a preliminary objection is in the nature of what used to be a . demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct It can not be raised if any fact has to be ascertained or if what is sought is the exercise ofjudicial discretion. The improper raising of a preliminary objection does nothing bu( unnecessarily increase costs and on occasion confuse the issues. This improper practice should stop.,,,, The applicant continued to state that the respondent never raised the issue of jurisdiction in the trial court and he never raised the same in the District court where he made an application for revision of the Primary court decision which ruled in his favour as being the lawful owner of the house in dispute. Therefore the applicant contended that objection to the jurisdiction of the court has to be taken at first instance. The applicant submitted on the second part of objection that it is wrong and unacceptable to bring the issue of limitation of time in the Primary court by way of a preliminary objection while the matter is for revision in the high court. He contended that, the issue of limitation of time is subject to a full hearing of the revision and not to be disposed off by way of preliminary objection. Having gone through both party's submissions and court records I find that before determining the objection raised by the respondent I first 5 cm~)~ \.:j \c/f 'L--{."ryj have to determine two issues, that is whether the objection raised by the respondent amount to preliminary objection, second is whether the preliminary objection is proper before this court. What is preliminary objection was defined in the case of Mukisa Biscuit Manufacturing Co. LTD, where the court said, I quote; '~ ... a preliminary objection consists of a point of law which has been pleade~ or which arises by clear implication out of pleading~ and which if argued as a preliminary point may dispose off the suit Examples are on objection to the Jurisdiction of the Court or a plea of limitation....... // The court went further to say that a preliminary objection is in a nature of what is used to be a demurer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It can not be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. According to the definition above, this court find that the respondent raised an objection on pure point of law on jurisdiction of court, of which if determined may dispose off the application for revision. Therefore I do not agree with the applicant's submission that the preliminary objection does not qualify to be a preliminary objection because in order to determine the same one need to bring extraneous evidence which amounts to hearing the revision itself before the same is due. With regarding to the second issue, this court finds that the preliminary objection raised by the respondent on jurisdiction is proper before this court. It is the well established principle that the question of jurisdiction is not merely one of form but fundamental, any trial or proceedings conducted by a court with no jurisdiction to try the same will be declared a nullity on appeal or revision. This is the position in the case of Melisho Sindiko VS. Julius Kaaya/ {1977} LRT. NO. 18. It is also a settled position of law that a preliminary objection based on jurisdiction or/and limitation can be raised at any stage of the proceedings. Since the preliminary objection raised by the applicant is on that basis, I am of the view that has been raised properly and even the court would have risen on its own motion. Now it is time to determine the preliminary objection as raised by the respondent. After perusal of Primary court and District Court records and parties submissions there is no dispute that the Primary court and the District Court entertained and determined the matter of ownership of land the matter which both courts are excluded from entertaining by the law. 7 --- ~~~·-· - ---· · - - - - · - · - -------- The Administrator did not follow proper procedure in determining the ownership of the house in dispute, this court held in the case of IBRAHIM KUSAGA that; ''I appreciate that there may be cases where the property of a deceased person may be in dispute. In such cases all those interested in determination of the dispute or establishing ownership may institute proceedings against the Administrator or the Administrator may sue to establish claim of deceased's property. The law regarding institution of civil claims has not been changed by the Administration of estate enactments. It only provides machinery whereby a legally recognized person is placed in the place of a deceased person in all matter relating to the deceased's estate'~ According to the case above the administrator was supposed to file the case at the Land Tribunal in order to determine who is the rightfully owner of the house in dispute. That being the position, I agree with the respondent's submission ..,..., that the proceedings culminating to this application for revision emanated in court without jurisdiction therefore are null and void. This is the position of this court in the case of Sa/min Mohamed VS. Abdu Mohamed, 1986. TLR 251 where the court held that; ''In view of the provision of section 18(1) {i) of the Magistrates Courts Act 198i no Primary Court shall have Jurisdiction in any proceedings 8 ---- . " ,...--.., _.& /\ '- j ..J 'C.-{ \·L.-h.,o-(A affecting the title to or any interest in land registered under the Land Registration Ordinance'~ This is also the position in the Magistrate Courts Act (Cap 11 R.E 2002) under Section 18 (1) (a) (i) which provides that; •~ 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 have jurisdiction in any proceedings affecting the title to or any interest in land registered under the Land Registration Act. ,, Therefore there is no doubt that Temeke Primary court had no jurisdiction to hear the case. That is also the position in the case of Mohamed Yusufu v Tunda Kassim [1968] ff.CD. 487 where the court held, inter alia, that once the land is registered, the Primary court has no jurisdiction. Under these circumstances, I can not hesitate to say that the hearing of the case by the Primary court which was not clothed with jurisdiction was a nullity ab initio for and consequently the decision of the District 9 ~Q~-~j j \__(: b--P-2..,c,'-(A Court is of no consequence as it had no leg to stand on. Thus I agree with the respond that the application is not properly before the Court. Therefore the preliminary objection is upheld. I make no order as to costs. It Is accordingly ordered. 10