omary salum mandary as administrator of the estate of salum omary mandari vs alisaar industry company limited 2023 tzhclandd 16895 19 september 2023

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 145 OF 2022 OMARY SALIMU MANDARI(As administrator of the Estate of the Late \ SALIMU OMARI MANDARI) PLAINTIFF t^ERSUS ALISAAR INDUSTRY COMPANY LIMITED DEFENDANT NUTRIUX INTERNATIONAL COMPANY LIMITED 2"° DEFENDANT RULING 15/09/2023 to 19/09/2023 E.B. LUVANDA,3 The First Defendant raised a preliminary objection on point of law that this Court has no pecuniary jurisdiction to entertain this matter. Mr. Jerome Joseph Msemwa learned Counsel for First Defendant submitted that the substantive claim in the Plaintiff prayers is Tshs 63,000,000/= being accumulative arrears of rent up to 2022, citing paragraph four of the amended plaint. He submitted that it is substantive claim which determines pecuniary jurisdiction of the court, citing the case of Ms. Tanzania China Friendship Textiie Co. Ltd vs. Our Lady of the Usambara Sisters, Civil Appeal No. 84/2022, CAT at page 11. 1 He submitted that the law limits the High Court on pecuniary jurisdiction on amounts not exceeding the amount prescribed by law. The learned Counsel submitted that the amount of Tshs 63,000,000/= does not fall within the competency of this Court to try the case, arguing that the case is triable at the Ward Tribunal for mediation and District and Housing Tribunal, respectively. He submitted that recovery of rent at the District and Housing Tribunal is provided under section 33(2)(b) of the Land Disputes Courts Act, Cap 216 R.E. 2019, the maximum amount being 200 million. In reply, Mr. Daniel Haule Ngudungi, learned Counsel for the Plaintiff, submitted that the dispute is two fold; plaintiff recovery of the premises by eviction arising out of breach of the construction and lease agreement annexure NCA-1 to the plaint and payment of accrued rent from the date of default to the date when the case will be adjudicated. The learned Counsel submitted that once the value of the premise in dispute is above Tshs 300,000,000/= in accordance with section 33(2)(a) of Cap 216 (supra) it is the High Court, arguing that the Tribunal is vested jurisdiction with matters of which the value does not exceed 300,000,000/=. He submitted that reading section 37(l)(a) of Cap 216 (supra) the High Court is vested jurisdiction to determine all proceedings for the recovery of immovable property which the value of property exceeds 300,000,000/=. He submitted that the determinant issue is what is the value of the immovable property in this case which the Plaintiff wants to recover by way of eviction order and yield vacant possession. He submitted that paragraphs four, six, and nine of the plaint, the value of the disputed premises is stated to be 500,000,000/= and in paragraph four of defence vividly state the value of the constructed warehouse to be Tshs 500,000,000/=, the subject of eviction and vacant possession to be yielded by the plaintiff. He cited the case of Benitho Thadei Chengula vs. Abdullah Mohamed Ismail (Father of the Administrator of the Estate of the Late Mariam Mohamed Ismail), Civil Application No. 183/2020, CAT Pages 8 to 10, for a proposition that section 13 of the Civil Procedure Code, Cap 33 as amended by Act No. 4/2016 does not affect the general jurisdiction of the High Court. On rejoinder, the learned Counsel for First Defendant submitted that in annexure NCA-1 there Is nowhere the amount of Tshs. 500,000,000 is stated, arguing that we remain with the alleged outstanding rent arrears Tshs 63,000,000/= which this Court is not vested with jurisdiction to try. He submitted that the Plaintiff does not claim for breach of construction agreement rather claim for payment of rent and eviction orders for alleged non payment of rent. He submitted that in the case of Benito Thadei Chengula,(supra), the Court of Appeal was dealing with general jurisdiction of the court under the provisions of CPC, while in the instant case, the provision applicable are Cap 216. He submitted that the Court of Appeal was dealing with general jurisdiction of the High Court based on the amendment of the MCA from 1991 to 2016 vide Act No. 250/2002, Act No. 4 of 2016 which amended section 13 of Cap 33 (supra). According to paragraph four of the amended plaint, the Plaintiff substantive claim is payment of accumulated rent arrears from 01/07/2015 up to 01/07/2022, a total sum of 63,000,000/= eviction orders and damages. Even at reliefs number one It is pleaded that the Defendant have breached the terms and conditions of the lease agreement for failure to pay rent and vacate from the rented premises. To my view, vacate and an order of eviction does not connote recovery of possession of immovable property as provided for under section 37(l)(a) of Cap 216. To my view, a mere fact that a suit premises where an order of eviction is sought, is valued Tshs 500,000,000/= on its self cannot be taken as a ground to say this this court is clothed with jurisdiction. This is because herein the dominant claim Is payment of arrears of rent. Therefore to my view orders of eviction are consequential and not predominant in the circumstance. The original jurisdiction of the High Court to adjudicate on dispute or complaint concerning land where the subject matter is capable of being quantified, is provided for under section 37(l)(b) of Cap 216 (supra) which provide, I quote "(1)Subject to the provision ofthis Act, the High Courtshall have and exercise originaljurisdiction. (a)...NA... (b)In otherproceedings where thesubjectmattercapable ofbeing estimated at a money value In which the value of the subject matter exceeds two hundred million shillings" Herein, at paragraph ten of the amended plaint, the Piaintiff avoided to plead a precise statement depicting the value of the subject matter of his suit for the purpose of jurisdiction and assessment of court fees, see order VII rule (l)(l) of Cap 33 (supra). Instead the alleged value of 500,000,000/= is pleaded by the way in the body of the plaint. Even at paragraph four on which the Plaintiff prefaced his daim, the alleged value of the warehouse Tshs 500,000,000/= is missing. Therefore it is taken that a sum of 500,000,000 value of the alleged warehouse was merely pleaded by the way and therefore cannot be taken to cover a substantive claim. In Our Lady of Usambara Sisters(supra), at page 11, it was held, I quote, "7/7 our view, it is the substantive ciaim and not the generai damages which determines the pecuniary jurisdiction of the court. In the instant case, the substantive amount is Shs. 8,136,720/= It is this amount which determines the pecuniaryjurisdiction of the court Herein, the substantive claim pleaded by the Plaintiff is Tshs 63,000,000/= which is below the pecuniary jurisdiction of this Court. Again an order for eviction, to my view, I repeat is a sequential, not substantive claim for purpose of this suit. The case of Benitho Chengula (supra) is distinguishable to the facts of this case, therein the apex Court was dealing with the interpretation regarding pecuniary jurisdiction of a court of resident magistrate and a district court vis a vis the High Court, in reference to the Magistrates Courts Act, Cap 11 R.E. 2109 and Cap 33 (supra). It is to be noted that both under Cap 11 (supra) or Cap 33 (supra), does not provide a threshold of a minimum pecuniary amount triable by the High Court. The MCA, merely provide for a ceiling of pecuniary jurisdiction of the subordinate courts mentioned under • Cap 33. However, the situation under Cap 216 (supra) is different, where the law set the minimum for which the High Court have original jurisdiction. That said, I uphold the preliminary objection, that this Court is not vested with pecuniary jurisdiction to adjudicate over a claim of 63,000,00/= which is below the pecuniary value of this Court. The suit is struck out. However I rjiake no order for costs. '2:/ E.B./LyVANDA IDGE ^ 1/09/2023 0V1S^ Ruling delivered through vid^ conferencing attended by Ms. Benedeta Fabian learned Counsel for Plaintiff and Ms. Saiha Mlilima learned Counsel for the First Defendant. 5: N E.B/LUyANDA iGE y09l2023 4^. P/visiQ^