PASCHAL MITAGATO JD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF SHINYANGA AT SHINYANGA CIVIL APPEAL NO. 11 OF 2022 PASCALI LAZARO MITAGATO ••••••••••••••••••••••••••••••APPELLANT VERSUS GABRIEL LYATUU NYUKI ••••••••••••••••••••••..••...•••••••RESPONDENT [Appeal from the decision of the Resident Magistrate's Court of Shinyanga at Shinyanga] CHon. M.P. MRIO PRM.l dated the 23rd day of February, 2022 in Civil Case No. 27 of 2021 JUDGMENT l?h October, 2023 & 3(JhJanuary, 2024. S.M. KULITA, l. This is an appeal from the Resident Magistrates Court of Shinyanga. The story behind this appeal in a nut shell is that, the respondent had instituted a civil case against the respondent herein, before that said court, claiming for compensation at the tune of Tshs 50 million arising from loss of business, after the respondent had closed the appellant's 1 business since 10th September, 2021. The appellant's plaint provides that, the respondent had closed the appellant's business for the reason that there is an outstanding rent that the appellant had not paid. In the reply thereto, the respondent raised the Preliminary Objections, among others, that the trial court had no jurisdiction to entertain the matter due to the fact that, the suit relates to landlord- tenant relationship. Upon hearing of the same, the trial court found the Preliminary Objection meritorious, hence, dismissed the suit. Aggrieved with the said decision, the appellant approached this court with one ground of appeal, that, the trial Magistrate erred in law and fact to dismiss the suit for the reason that it was a land matter, while it purely based on tort. On 29th August, 2023 the matter came for hearing. Mr. Paul Kaunda, Advocate, represented the appellant whereas Mr. Emmanuel Rugamila, Advocate, represented the respondent. Submitting in support of the appeal, Mr. Kaunda stated that, the appellant's case is from the cause of action of tort, not land. He cemented his point by referring paragraphs 3, 6 and 8, also the reliefs found in the appellant's plaint. He added that, the appellant claimed for compensation after the respondent had closed the appellant's business. This is denial of access 2 over business. To him, this amounts to tort of conversion by detention. He contended further that, though the plaint also shows in para 4 and 5 that parties had a lease agreement, it was wrong for the trial court to conclude that, it is a land matter, because in reliefs, the appellant never claimed for vacant possession, but compensation. To make it clear, Mr. Kaunda urged this court refer to the case of Saving and Finance Commercial Bank vs. Bidco Oil and Soap Ltd, Civil Appeal No. 48 of 2012, CAT at DSM. Mr. Kaunda went further stating that, in this tort of conversion, one is required to show that he demanded his right back, yet he was denied. As for this case, he said that, the Appellant herein fulfilled it. Again, Mr. Kaunda urged us to refer to the case of Anderson Chale vs. Abubakari Sakapara, Civil Appeal No. 121 of 2004, HC DSM which differentiated between land disputes and tort arising out of land matters. With this cited authority, he stated that, the normal courts are not precluded to deal with torts on trespass to land. He again insisted that, to the appellant's case, the cause of action is not tenancy but tortious liability. In reply Mr. Emmanuel Rugamila, Advocate, stated that, according to paragraphs 4 and 5 of the appellant's plaint, the dispute is seen to have rested on an outstanding rent. To him, he said this is a landlord-tenant 3 relationship. He also urged us to make reference to part 9 of the Land Act [Cap 113 RE 2019]. Mr. Rugamila went on stating that, the case of Savings Saving and Finance Commercial Bank is distinguishable to the case at hand. Yet he pointed out that, it also supports the respondent's case that it is a land dispute. Mr. Rugamila further submitted that, closure of the appellant's business for not paying the outstanding rent, is not a question of land trespass. He added that, had the appellant paid for the lease agreement he had entered with the respondent, there would not be conflict between the parties. In rejoinder, apart from reiterating his submissions in chief, Mr. Kaunda added that, as the respondent never stated in his pleadings, the amount of an outstanding rent that he claims from the Appellant, it means the pecuniary jurisdiction of the trial court was not certain. Mr. Kaunda concluded that, the available facts do not prove that the matter is land. I have earnestly gone through both parties' submissions, authorities supplied and the available records. The issue is whether the appellant's appeal is meritorious. I firstly agree with the submissions of both parties to the case that, in our jurisprudence, there existing a cause of action on tort of trespass 4 to land, which Mr. Kaunda has been also referring to this case as, tort of conversion. Of course, ordinary courts are not precluded from handling this cause of action. I also agree with the submissions of the appellant's counsel as per the case of Anderson Chale (supra) that the ordinary courts are not precluded to deal with torts on trespass to land. But, as correctly submitted by both counsels, that, in proving existence of tort of conversion, there must be a willful interference, with no justification, to the property in question. See also the case of CROB (1996) Limited vs. Bonifase Chimya [2003] TLR 413 in which it was stated; "Thetort of conversionis constitutedby an act or series of acts of willful interference without lawful justification with any property; in a manner inconsistence with the right of another person, whereby that other person is deprived of use and possessionof the property, " When I went through the respondent's Written Statement of Defense, particularly on paragraph 5, I noticed it showing that, the Plaintiff did not close the business unlawfully, but after the appellant had occupied the same unlawfully and that he refused to vacate or pay rent. 5 That defense by the respondent in justifying the closure of the appellant's business, actually calls for the court to determine two issues. One, the court should determine as to whether there is existence of a lawful and valid tenant-landlord relationship between the parties to the case, and the appellant had unlawfully entered into the respondent's premises; and two, the court should determine as to whether the appellant is indebted an outstanding amount of rent by the respondent. It is upon these issues being answered in affirmative as against the respondent, the appellant will be declared a winner in the tort of conversion. Now, the question is, are these ordinary courts like the Resident Magistrate's Courts allowed to determine the questions on whether the appellant has a lawful lease agreement with the respondent and whether the appellant has breached or not, the lease agreement by not paying an outstanding rent amount? This is certainly not, the normal courts like the Resident Magistrate's Courts, are not allowed to determine such issues which are entirely found in part 9 to the Land Act [Cap 113 RE 2019]. Those issues are entirely vested to be determined by the land courts. From that angle, it is when this appellant's dispute seen as land matter and not, tort of conversion. 6 The above endeavors, makes my mind firm that, there is no point to fault the trial court decision. On that account, I proceed to dismiss the appeal for being unmeritorious. Appellant to bear the costs. S.M. KULITA JUDGE 30/01/2024 DATED at SHINYANGA this 30th day of January, 2024. 4ou~~, ~~?. I( ~ O'~ :A:< .' ""'" tI ...., ~ .'~ • S.M. KULITA ~b ~ JUDGE 30/01/2024 7