REV PADRE JOSHUA SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 25089 OF 2024 REV. PADRE JOSHUA DAUDI MWIGUTI........................ PLAINTIFF VERSUS PREMIUM PARTS AND SERVICES LIMITED.................DEFENDANT RULING & lffh January 2025 L.HEMEDJ The suit landed property is a Farm No 2689, Buza Area in Dar es Salaam alleged to have the value of TZS 500,000,000/. On the 4th day of October, 2024, the Plaintiff herein through the legal service of Mr. Baraka Mbwilo, learned advocate presented the instantaneous suit suing the Defendant for breach of lease agreement and for trespass into the suit landed property. The Plaintiff is thus seeking for judgment and decree against the defendant as follows: - "1) The court declares that the defendant breached the contract of lease entered between her and the plaintiff i n 2) The court declares that the defendant is a trespasser to the land in dispute 3) The defendant be ordered to give vacant possession of the suit land with immediate effect 4) Defendant be ordered to pay Plaintiff the rental fees from 15h February2024 to the date ofjudgment 5) Defendant pays bank rate interest of 5% per month of the rental fee from 15th February 2024 to the date ofjudgment. 6) The Defendant pays interest on the decretal amount at the Court rate of 7% per annum from the date of delivery ofjudgment till when the decree is fully satisfied; 7) The defendant pays to the plaintiff TZS 1,000,000,000/= as general damages 8) The defendant pays the Plaintiff costs of and incidental to this suit; and 9) Any other relief(s) that the Honorable Court may deem fit andjust." The Defendant who has been under the legal service of Mr. Adrian Mhina, learned advocate, promptly filed the written statement of defence 2 disputing all the claims. The learned counsel also raised the preliminary objection in /imine //Zzsthus: - '7, That this Honourable court has no jurisdiction to entertain this suit. 2. The plaint is defective for contravening Order VII Rule l(i) of the Civil Procedure Code CAP 33 R.E 2019." Hearing of the preliminary objection was by way of written submissions which were filed timely in accordance to the filing schedule directed by the court. Mr. Mhina, acted for the Defendant while the Plaintiff enjoyed the legal service of Mr. Mbwilo. The learned counsel for the Defendant dropped the 2nd limb of preliminary objection and argued the 1st limb of objection on the jurisdiction of the court to entertain the matter at hand. The only issue for determination is whether the court is clothed with the requisite pecuniary jurisdiction to determine the matter at hand. In his submissions in chief, the learned counsel for the Defendant has asserted that the plaintiff has claimed the amount of TZS 1,000,000,000/= 3 as general damages for breach of lease agreement. In his view, general damages cannot be the determinant factor of the jurisdiction of the court. He insisted for the matter to be struck out for want of pecuniary jurisdiction because the Plaintiff could not state the number of specific damages which would have been the basis for determining the pecuniary jurisdiction of the court. Reliance was put on section 13 of the Civil Procedure Code [Cap 33 R.E 2019] arguing that the matter should have been filed in the District Land and Housing Tribunal which is the lowest court in the hierarchy competent to try it. In response thereto, the learned counsel for the Plaintiff argued to have stated the value of the suit landed property in paragraph 25 of the Plaint to beTZS 500,000,000/=. According to the learned counsel, the claims against the Defendant is for breach of lease agreement and trespass into the suit landed property. He wants the Defendant be evicted from the suit landed property. Let me begin by pointing out that, it has become an elementary law that in determining preliminary objection the court is bound to make reference only to what is pleaded. This has been stated in plethora of 4 decisions including in the well-known case of Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 where the court had this to say in respect of the preliminary objections: - "... a preliminary objection consists ofa point oflaw which has been pleaded, or which arises by dear implication out of pleadings, and which if argued as a preliminarypoint may dispose ofthe suit. Examples are an objection to the jurisdiction of the court or piea of limitation... "[Emphasis added] I have keenly read the Plaint as was filed by the Plaintiff herein and found that he is suing the Defendant for having breached the lease agreement. According to the Plaintiff, the Defendant became the trespasser upon breach of the said lease agreement. Among the reliefs sought are for declaration that the Defendant has breached the said lease agreement; payment of rent arrears; payment of general damages; and eviction of the defendant from the landed property. It is obvious from the pleadings, the Plaint in particular that the matter at hand emanates from breach of lease agreement. Leases are governed by the Land Act [Cap.113 R.E 2019], specifically, under PART IX which covers 5 sections 77 up to 110. Section 109 of the Act provides for various remedies available to the lessor and lessee on breach of lease agreement. Some of the reliefs include; damages, decree of specific performance, injunction and payment of arrears of rent. This being the matter that finds its cause of action from breach of lease agreement, the value of the subject matter or the amount claimed is immaterial in respect to the pecuniary jurisdiction of the court. I am holding so because section 107 of the Land kcX^supra) only empowers a district court to determine matters concerning breach of lease agreement irrespective of the value of the subject matter. It provides thus: - "107. -(1) An application for reliefmay be made to district Court- (a) in proceeding brought by the lessor for an order of termination of the lease; (b) in proceeding brought for the purpose by any of the persons referred to subsection (2) before the lessor commences a proceeding mentioned in paragraph(a). 6 (2) An application ofrelief against an order of termination of a lease may be made by- (a) the lessee; (b) if two or more persons are entitled to the lease as co-occupiers, by one or more of them on their own behaif- (c) a sublessee..." The question that arises is whether this court is clothed with the requisite jurisdiction to determine the matter at hand. It must be noted that jurisdiction of a court is always a creature of statute. Parties cannot just decide to give a court jurisdiction which it does not have to determine the matter. In Shyam Thanki and Others versus New Palace Hotel [1971] 1 EA 199 at 202, the court emphatically observed that; 'M// the courts in Tanzania are created by statute and their jurisdiction is purely statutory. It is an elementary principle of law that parties cannot by consent give a court jurisdiction which it does not possess. "[Emphasis added] In the light of the above statutory and case authorities, neither the District Land and Housing Tribunal nor this Court are vested with jurisdiction 7 to determine disputes on breach of leases. It is only the District Court which has been given such jurisdiction. From the foregoing, I find this court to have no jurisdiction to entertain the instant matter. I do hereby proceed to strike out the entire suit with costs. Order accordingly. DATED at DAR ES this 1.6:' January 2025 JUDGE 8