LAND CASE NO 21 OF 2023 MUSA JUMA RUGANDA VS YUSUPH SHABANI RUGANDA AND 2 OTHERS

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND CASE NO. 21 OF 2023 MUSA JUMA RUGANDA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS YUSUPH SHABAN RUGANDA .............................. RESPONDENT / DEFENDANT RULING J. NKWABI, J, Date: 22/08 & 31/10/2024 The plaintiff is suing the defendant specifically praying for reliefs I list below: 1. A declaration order that the plaintiff is the rightful owner of the suit plot located 217 Block “T” Mwanga Vamia, within Kigoma Ujiji Municipality. 2. That, if the above prayer is in affirmative this Court be pleased to compel and order the defendant to vacate from the suit property. 3. Costs of the case. 4. Any other relief the honourable Court deems just and fit to grant. The counsel for the defendant, on 12/06/2024, raised and filed in this Court, a preliminary objection on point of law that: The plaintiff’s plaint is incurably defective and bad in law for contravening the mandatory provisions of Order VII Rule 1 (ii) of the Civil Procedure Code, Cap. 33 R.E. 2019. I ordered the preliminary objection be argued by way of written submissions. Mr. Sadiki Aliki, learned counsel, drew and filed the written submissions in support of the preliminary objection for the defendant. Mr. Michael Mwangati, learned counsel, also drew and filed written submission in reply, opposing the preliminary objection. I wholeheartedly appreciate their submissions. Page. 1 Truly, it was a strong view of Mr. Aliki, in submission in chief, that the plaint is incurably defective and bad in law for contravening the mandatory provisions of Order VII Rule 1 (i) of the Civil Procedure Code Cap. 33 R.E. 2019. For that provision, Mr. Aliki went on to state, it is mandatory for the plaintiff to state the value of the subject matter of the suit for purpose of determining whether the Court is vested with jurisdiction to determine the matter. He further contended that under paragraph 13 of the plaint, there is no mention of the value of the subject matter. He backed his argument by the decision of this Court in Ian Ishengoma (Administrator of the estate of the late Gaudicious Evarister Ishengoma v. The Registered Trustees of Baraza la Waislam Tanzaia, Land Case No. 6 of 2023 HC where it was ruled that: “In absence of a clearly stated amount to facilitate determination of this Court’s jurisdiction means nothing than the conclusion that this Court lacks pecuniary jurisdiction to entertain this suit.” Mr. Aliki prayed that the preliminary objection be sustained and suit be struck out for want of pecuniary jurisdiction. In reply submission, Mr. Mwangati argued that the plaintiff had previously joined the Commissioner for Lands but this Court ruled that the Commissioner for Lands is not necessary party, so the Commissioner was removed. He pressed that since the piece of land is surveyed then, it is this Court which has jurisdiction the dispute, because issue of the fees does not go to the root of the matter. He invited this Court to dispense justice without technicalities by adopting the overriding objective. For the same, he cited Ramadhani Sembejo Mongu v. Musoma Municipal Council & 2 Others, Miscellaneous Civil Application No. 19 of 2022, HC. He prayed the preliminary objection be dismissed for having no merit. In a brief rejoinder submission, Mr. Aliki lamented that his learned friend did not cite any authority be it statutory law for his suggestion that once the piece of land is registered, then only the High Court has jurisdiction to entertain a dispute over such registered piece of land. He argued that the value of the subject matter is necessary for ascertaining court fees and goes to the root of the matter and affects the rights of parties. He distinguished the cased of Mongu (supra) cited by his learned friend. He pressed that jurisdiction cannot be served by the overriding objective. I have dispassionately considered the submissions of both parties in respect of the preliminary objection. It is clear that the counsel for the plaintiff admits that the plaint violates the provisions of Order VII Rule 1 (ii) of the Civil Procedure Code, Cap. 33 R.E. 2019. On my side, I think that this situation is not new in our jurisdiction, so it would not detain me much. In Mwananchi Communications Ltd & 2 Others v. Josua K. Kajula & 2 Others, Page. 2 Civil Appeal No. 126/01 of 2016 CAT (unreported) it was held that: “…, if the amount claimed was known, then for the plaint to clearly state the said amount as such and plead it as special damages as was held in Tanzania Saruji Corporation vs African Marble Company Limited [2004] TLR 155. This would also be in line with Order VII Rule 1 of the CPC, that every plaint has to state the value of the subject matter for two purposes, jurisdiction and court fees. At the same time ensure compliance with section 13 of the CPC that requires a suit to be filed in a Court with the lowest grade. … thus means that there was no specific amount shown to facilitate determination of the pecuniary jurisdiction on the High Court where the suit was filed. The absence of such specification meant the suit should have been tried in the lower courts, that is the District or Resident Magistrate’s courts under section 40(2)(b) of the MCA. For the foregoing reasons, it is clear that he High Court erroneously crowned itself with jurisdiction in entertaining and determining the suit that id did not possess. Accordingly, we allow the appeal and are constrained to declare the trial court’s proceedings a nullity, and to meet the justice of the case, thus proceed to quash and set aside the entire proceedings, judgment, decree and orders of the High Court.” I am sure as eggs is eggs that both counsel are equally aware that what determines jurisdiction of the court is specific damages and not general damages as stated in Ms. Tanzania-China Friendship Textile Co. Ltd v. Our Lady of the Usambara Sisters, [2006] T.L.R. 70 where the Court of Appeal of Tanzania interpreted section 13 of the Code: “(1) It is the substantive claim and not the general damages which determine the pecuniary jurisdiction of the court. (2) Although there is no specific provision of law stating expressly that the High Court had no pecuniary jurisdiction to entertain claims not exceeding 10,000,000/= according to the principle contained in section 13 of the Civil Procedure Code that every suit must be instituted in the court of the lowest grade competent to try it.” See also Manjit Singh Sandhu & 2 Others v. Robiri R. Robiri, Civil Appeal No. 121 of 2014, CAT (unreported) where it was underscored that: “In the light of the foregoing, we are of the firm view that since general damages could not be used to determine the pecuniary jurisdiction of the courts, and since section 13 of the CPC requires that every suit be instituted in the court of lowest grade competent to try it, and in view of the fact that the High Court, in this case, was not a court fitting that description, the High Court had no jurisdiction to try the respondent’s suit. Accordingly, we allow the appeal on the jurisdictional ground. We quash and set aside the entire proceedings, judgment and decree of the trial High Court, with costs to the appellants” That being the position, no one will entertain doubt of the way that has to be adopted by this Court in this suit. Further no one would doubt that if this Court proceeds with this suit the way it is, then this Court’s proceedings would be quashed on appeal like what happened in the above authority. That will cause unnecessary delay of the Page. 3 determination of the dispute on merit. I would not follow that course. Too, the learned counsel and their parties would appreciate that where a court finds that it lacks pecuniary jurisdiction, then it has to order for returning the plaint to a court or tribunal competent to try it. That is the stance held in Qamara Kwaslema Gwaresh v. Anwary Hassan & 2 Others, Civil Appeal No. 92 of 2015, CAT (unreported) where it was stated that: Before we pen off, we wish to make one observation by way of postscript and for future guidance. To say the least, it was wrong for the trial Judge to hand down an order dismissing the suit in the wake of her finding that the High Court lacked pecuniary jurisdiction. The proper order, under the circumstances, should have been to deal with the suit in accordance with Order VII Rule 10(1) and (2) of the Code which stipulates:- “1. The plaint shall, at any stage of the suit, be returned to be presented to the court in which the suit should have been instituted. 2. On returning the plaint the judge or magistrate, shall endorse thereon the date of its presentation and return, the name of the party presenting it and a brief statement of the reasons for returning it.” The counsel for the defendant had demanded his learned friend to back with a law his claim that it is only the High Court which has the jurisdiction to entertain a land matter over a registered land. Conversely, the counsel for the defendant appears to be naturing the sentiments which were held in Mohamed Yusufu v. Tunda [1968] H.C.D. No. 447 where it was held inter alia that: 1. The Magistrates’ Courts Act Cap 537 s. 14(1) inter alia provides that: “No primary court shall have jurisdiction in any proceedings affecting the title to or any interest in land registered under the Land Regulation Ordinance.” Once the land is registered, the primary court has no jurisdiction and advise her to pursue her remedy in the District Court or High Court depending on the value of the property involved in this case the District Court. On my part, I do not know any law that precludes the District Land and Housing Tribunal from hearing and entertaining land matters which are registered, the view which is held by the counsel for the plaintiff. In absence of impleading the government, on the basis of the decision in Tunda’s case (supra) there is no justification of the view held by Mr. Mwangati. I reject it. To conclude, I rule that this Court has no jurisdiction to entertain this suit because the value of the subject matter is not indicated in the plaint thus, unknown. In the premises it is the District Land and Housing Tribunal which has the jurisdiction to entertain the matter. I order that the plaint be returned for institution in the District Land and Housing Tribunal for Kigoma in accordance with the procedure pertaining to such tribunals. The defendant has to be reimbursed the costs he incurred in this Court. It is so ordered. Page. 4 Dated at KIGOMA ZONE this 31st of October 2024. J. . NKWABI, J JUDGE OF THE HIGH COURT Page. 5