NMB

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 22684 OF 2024 NMB BANK P L C ............................................... FIRST APPELLANT ADILI AUCTION MART L T D ............................ ... 2nd APPELLANT VERSUS FADHILI JOSIAH KESSY................................ 1st RESPONDENT SAG IA KING M ASABA.................................... 2nd RESPONDENT JUDGMENT 18/11/2024 & 6/12/2024 ROBERT. J:- The appellants, NMB Bank PLC and Adili Auction Mart, challenge the decision of the District Land and Housing Tribunal (DLHT) for Mwanza in Miscellaneous Application No. 128 of 2024. This application arose from Land Application No. 408 of 2020, filed by the 1st respondent, Fadhili Josiah Kessy. The appeal is premised on four grounds, which focus on allegations of illegality, fraud, and jurisdictional defects. Briefly, the 1st respondent alleged at the DLHT in Land Application No. 408 of 2020 that he purchased a house through a public auction conducted by the 2nd appellant on instructions of the 1st appellant. He was issued a i certificate of sale and a title deed for Plot No. 267 Block 7 Nyamhongolo. However, upon follow-up, he discovered that the house he purchased was situated on Plot No. 297 Block 7 Nyamhongolo, not Plot No. 267. Efforts to resolve the discrepancy with the 1st appellant proved futile, prompting the 1st respondent to file Land Application No. 408 of 2020. The DLHT proceeded ex-parte against the appellants for failure to appear, ultimately deciding that the 1st appellant refund the purchase price. Subsequent efforts by the appellants to set aside the ex-parte judgment through Miscellaneous Application No. 128 of 2024 were dismissed, prompting this appeal. The appellants raised four grounds of appeal to the effect that: 1. The District Land and Housing Tribunal failed to grant extension o f time based on illegality in the proceedings o f Land Application No. 408 o f2020. 2. The District Land and Housing Tribunal failed to set aside the ex-parte judgment on the basis o f illegality. 3. The District Land and Housing Tribunal failed to set aside the ex-parte judgment obtained through fraud. 4. The District Land and Housing Tribunal failed to recognize that the DLHT lackedjurisdiction to entertain the matter. The core issue in this appeal, and the one on which the parties have reached consensus, concerns the jurisdiction of the DLHT in entertaining Land Application No. 408 of 2020. The appellants, through their counsel Dr. George Mwaisondola, vigorously argued that the DLHT lacked jurisdiction to entertain Land Application No. 408 of 2020. They submitted that the primary claim in the application was rooted in a contractual dispute arising from the alleged breach of an auction sale agreement, which does not fall within the statutory jurisdiction of the DLHT as provided under Section 167(1) of the Land Act, Cap. 113 R.E. 2019, and Section 3(1) of the Land Disputes Courts Act, Cap. 216 R.E. 2019. Relying on the case of Tanzania-China Friendship Textile Co. Ltd v Our Lady of the Usambara Sisters [2006] TLR 70, the appellants emphasized that DLHT jurisdiction is confined to matters concerning ownership, use, and possession of land or other related proprietary disputes. They contended that since the dispute at hand revolved around a breach of contractual obligations, the appropriate forum was not the DLHT but the ordinary civil courts. 3 The appellants further argued that jurisdiction cannot be assumed, conferred, or waived by the conduct of the parties. They argued that any proceedings conducted without jurisdiction are a nullity. They concluded by submitting that the DLHT's decision, including its ex- parte judgment and subsequent ruling on the application for extension of time, was legally void and liable to be set aside. Mr. Edwin Aaron, counsel for the respondents, conceded the fourth ground of appeal, agreeing that the matter was contractual in nature and not within the jurisdiction of the DLHT. He prayed for the DLHT's decision to be set aside and for each party to bear its own costs. It is settled law that jurisdiction is a fundamental question that goes to the root of the court's competence to adjudicate a matter. Without jurisdiction, any proceedings conducted or decisions made are a nullity, regardless of their merits. Section 167(1) of the Land Act, Cap. 113 R.E. 2019, provides that disputes concerning land are to be dealt with in specialized forums, including the DLHT. However, the term "matters concerning land" has been consistently interpreted to mean disputes involving ownership, use, and possession of land, or other matters directly tied to proprietary rights in land. Furthermore, Section 3(1) of the Land Disputes Courts Act, Cap. 216 R.E. 2019, reiterates that DLHTs are vested with jurisdiction over matters involving land disputes, but not disputes of a purely contractual nature, even where land is tangentially involved. The Court of Appeal in Tanzania-China Friendship Textile Co. Ltd v Our Lady of the Usambara Sisters [2006] TLR 70 clarified that courts must carefully examine whether the nature of a dispute falls within the statutory jurisdiction of the forum. A perusal of the pleadings in Land Application No. 408 of 2020 reveals that the first respondent's claim primarily revolved around allegations of breach of contract, specifically the failure of the first appellant to deliver a valid title deed for the property purchased at the auction and payment of the purchase price. The cause of action was thus rooted in a contractual dispute between the parties, as highlighted in Msimbazi Creek Housing Estates Limited & Others v Diamond Trust Bank Tanzania PLC, Land proceedings and decisions arising from that matter, including the ex-parte judgment and the ruling in Miscellaneous Application No. 128 of 2024, are hereby declared null and void. That said, I find no pressing need to address the remaining grounds of appeal. Consequently, the appeal is allowed. The ex-parte judgment and decree in Land Application No. 408 of 2020, as well as the ruling in Miscellaneous Application No. 128 of 2024, are set aside. The respondents are at liberty to pursue their claims in a competent forum with proper jurisdiction. In view of the first respondent's concession on the fourth ground of appeal, which narrowed the scope of litigation and expedited the resolution of this appeal, it is hereby ordered that each party shall bear their own costs. 7