20181221 TZHC Dar es Salaam

__) - \ I : ';\ r , I ',/'"' -~--1"";"'. IN THE HIGH COURT Of-THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 109 OF 2017 (Arising from Civil Case No. 86 of 2016 in the District Court of Kinondoni, at Kinondoni, the Ruling delivered by Hon. Kasailo - RM) · MWANAISHA OMARI LIWA WILE ..................... APPELLANT VERSUS SAID KIBWANA ........................................... RESPONDENT JUDGMENT Dates; 31/10/2018 & 21/12/2018 I.C. MUGETA, J. The appellant filed a suit for recovery of money he paid to buy piece of land from the respondent who upon receipt of payment failed to give vacant possession of the land which he seems not to have. Therefore, the appellant claims a refund of. her Tshs 3,700,000/=. At the trial court, an objection was raised that the court has no jurisdiction as the dispute is a land matter. The objection was sustained hence this appeal. 1 The appellant appeared in person to prosecute his one ground of appeal which states that the learned trial magistrate erred both in law and in fact to hold that the trial court had no jurisdiction to entertain the matter. The respondent has never entered appearance despite service. The appellant had nothing useful to tell the court on the hearing date. She simply said she bought the land from the respondent. I have gone through the plaint to determine the nature of the claim, it is my view that the appellant does not claim either for ownership or occupation of land for tenancy. The trial court held that it has no jurisdiction because the suit involves matters relating to land. With respect, not all matters involving land are land dispute justiceable by land tribunals. Issues of mortgages or contracts involving land are not necessarily land disputes. A dispute is a land dispute where the claim is about ownership of land or occupation of land which includes issues of tenancy. (See Mariam Ghahae V. Fatuma Ghahae, Civil Appeal No. 43/2009, Court of Appeal (unreported). Trial to proceed before another · magistrate of competent jurisdiction. 2 This case involves a contract of sale of land where the appellant needs a refund of the purchase price not vacant possession. It is, therefore, a question of contract which does not qualify to be termed as land dispute. Therefore, the trial court erred to uphold the objection. The appeal has merits. I allow it. The ruling of the lower court is accordingly quashed. Orders emating therefrom are set aside. I order the trial court to hear and determined the dispute between the parties because it has jurisdiction. \b~ I. C. Mugeta JUDGE 21/12/2018 Court: Judgement delivered in the presence of the appellant and in the absence of respondent. Sgd: I. C. Mugeta JUDGE 21/12/2018 3