Land Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND CASE N0.20042 OF 2024 SALIM SALEH MSELEM AL-JABRY......................... 1ST PLAINTIFF BADAR SALEH MSELEM AL-JABRY......................... 2ND PLAINTIFF VERSUS ALLY SALEHE MSELEM AL-JABRY.............................................. 1STDEFENDANT BLACKWOOD CONSULT LIMITED.............................................. 2NDDEFENDANT MOHAMED SHABAN CHERWA..................................................... 3RDDEFENDANT YUSUFU SHABANI OMARI............................................................ 4thDEFENDANT RULING Date of last Order: 26/11/2024 Date of Ruling: 10/12/2024 LALTAIKA, J, The 4th Defendant herein YUSUFU SHABANI OMARI raised a Preliminary Objection "PO" asserting that the Plaintiffs suit is: 1. Not maintainable for failure to comply with Order VII Rule l(i) of the Civil Procedure Code, Cap. 33 R.E. 2019, due to non-disclosure of the value of the subject matter. 2. Incompetent and unfit for trial for contra vening Rule 4 of the Court Fees Rules, 2018 (G.N. 247 of 2018). Page 1 of 11 Parties opted to dispose of the PO by way of written submissions. Accordingly, the following schedule was ordered: The Defendants submission in chief be filed by 6th November 2024, the Plaintiff's reply submissions by the 19th November 2024 the 4th Defendant's Rejoinder submissions if any by 261h November 2024. The Plaintiff and the 4th Defendant enjoyed the skilful legal services of Ms. Raya Nassir and Mr. Sylivanus Mayenga, learned Advocates, respectively. They deserve commendations for spotless compliance with the ordered scheduled. The next part of this Ruling is a summary of submissions by both parties, my analysis of the law and the verdict. Mr. Mayenga, Counsel for the 4th Defendant contended that Order VII Rule l(i) of the CPC mandated that a plaint must include a statement of the value of the subject matter for ascertaining jurisdiction and determining court fees. He noted that the Plaintiffs' plaint failed to meet this requirement, as paragraph 23 of the plaint merely stated that the claimed amount exceeded TZS 350,000,000/= without specifying the value of the property in question. This omission, he argued, rendered it impossible for the Court to ascertain jurisdiction or calculate the appropriate court fees, thereby violating a fundamental legal requirement. Page 2 of 11 Citing several persuasive decisions of this Court, Mr. Mayenga asserted that jurisdiction could not be conferred upon the Court by the parties and that failure to state the value of the subject matter directly impacted the Court's ability to exercise its jurisdiction. He submitted that the absence of this crucial information made the suit incompetent and liable to be struck out. On the second preliminary objection, he argued that the Plaintiffs' failure to declare the value of the subject matter violated Rule 4 of the Court Fees Rules, which required such declarations to determine payable fees. He stated that this failure hindered the Court from assessing the appropriate fees and undermined legal processes designed to ensure compliance with statutory obligations. In conclusion, Mr. Mayenga maintained that the Plaintiffs' non- compliance with these legal provisions rendered their suit incompetent. He urged the Court to strike out the suit with costs. In response, Ms. Nassir, Counsel for the Plaintiffs, presented a comprehensive submission addressing the allegations. She argued that the PO was baseless and that the Plaint explicitly disclosed the value of the subject matter, thereby complying with the requirements of Order VII Rule l(i) and Rule 2 of the Civil Procedure Code (supra). Page 3 of 11 Specifically, Ms. Nassir pointed to paragraph 21 of the Plaint, which stated that the Plaintiffs had suffered losses amounting to Tshs. 1,000,000,000/= due to the commercial value of the plots in dispute. This, she emphasized, formed the basis for the determination of the Court's jurisdiction and the assessment of court fees. Ms. Nassir clarified that the 4th Defendant's reliance on paragraph 23 of the Plaint was misplaced, as paragraph 21 expressly addressed the value of the subject matter. She noted that the value exceeded Tshs. 350,000,000/=, which is the ceiling for the District Land and Housing Tribunal's jurisdiction, thereby justifying the High Court's jurisdiction. In her view, the 4th Defendant's argument ignored the clarity and specificity of the Plaint, which was consistent with the provisions of Order VII Rule l(i) and Rule 2. Ms. Nassir further submitted that the Plaint adhered to the requirements of stating the value for claims involving mesne profits. Citing the proviso to Order VII Rule 2, she argued that the Plaint stated the approximate amount claimed as Tshs. 1,000,000,000/=, thereby enabling proper assessment of court fees and determination of jurisdiction. To support her arguments, Ms. Nassir referenced Rehema Kenge and Aniseti Mayala Nyanda (Land Appeal No. 75 of 2019). She distinguished the cited case, arguing that it involved an arbitrary increase Page 4 of 11 in the value of land from Tshs. 200,000/= to Tshs. 4,000,000/=, which was not supported by any evidence. By contrast, Ms. Nassir reasoned, the Plaintiffs in this case had clearly stated the value of the subject matter based on its commercial worth. She also distinguished Adinani Mohamed Almasi and Others vs. Mwajabu Abdalla Jongoa and 4 Others, where she contended, no specific value was stated in the plaint, unlike the present case, which explicitly disclosed the subject matter's value. Regarding the objection that the Plaint violated Rule 4 of the Court Fees Rules, 2018, Ms. Nassir submitted that this point was equally misconceived. She argued that the Plaint disclosed the value of the claim, enabling proper assessment of court fees, which were duly paid. She also noted that the Plaintiffs' claim for mesne profits amounting to Tshs. 1,000,000,000/= further guided the assessment of fees. Citing Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696, Ms. Nassir argued that the objection did not qualify as a pure point of law. She emphasized that for a preliminary objection to succeed, it must involve a pure point of law arising from the pleadings and not require additional evidence. The objection raised by the 4th Defendant, she contended, involved factual Page 5 of 11 assertions that would require proof and, therefore, did not meet the threshold established in Mukisa Biscuits. She further relied on Shose Sinare vs. Stanbic Bank Tanzania Limited and Another (Civil Appeal No. 89 of 2020), where the Court of Appeal held that preliminary objections must strictly raise pure points of law. She highlighted those mixed issues of law and fact, as in this case, could not form the basis of a valid preliminary objection. Ms. Nassir also pointed out that the Plaint was reviewed by the Registrar during filing, who would have rejected it if there had been any non-compliance with the court fees requirements. She argued that the 4th Defendant's contention was thus unfounded and speculative. In his rejoinder submission, Mr. Mayenga noted the Plaintiffs' contention that the value was disclosed in paragraphs 7 and 21 of the Plaint. He strongly refuted these arguments, submitting that the Plaintiffs had failed to indicate the value of the subject matter in their Plaint, thereby contravening Order VII Rule l(i). He contended that the value of landed property could not be based on losses due to mesne profits and loss of opportunity, as claimed by the Plaintiffs. He argued that it is established law that the value of landed property must be ascertained through a valuation report by a professional valuer Page 6 of 11 or through an approximation by the parties, considering the current market value of the property. He further noted that the Plaintiffs' reliance on paragraphs 7 and 21 of the Plaint was misplaced, as these paragraphs referred to claims of mesne profits and loss of opportunity amounting to Tshs. 1,000,000,000/=. He maintained that such statements did not establish the actual value of the disputed property as required by law. He emphasized that the law under Order VII Rule l(i) required a specific indication of the property's value, which, he asserted, was absent in the Plaint. Mr. Mayenga also highlighted inconsistencies in the figures stated in the Plaint. He argued that the Plaintiffs' claim that paragraphs 7, 21, and 23 disclosed the value of the subject matter was misconceived. According to him, the figures in these paragraphs were inconsistent, with paragraph 7 and 21 referring to Tshs. 1,000,000,000/= as mesne profits, while paragraph 23 referred to a claim of Tshs. 350,000,000/=. He submitted that such discrepancies could not be taken as a clear statement of the value of the landed property in dispute. He further argued that in land disputes, particularly those involving trespass, the jurisdiction of the Court depended on the value of the landed property itself, not on the amount of the claim. He asserted that the Page 7 of 11 Plaintiffs had failed to disclose the property's value, as required, thereby contravening the law. Regarding the second limb, he disputed the Plaintiffs' submission that the value of the claim had been stated and that appropriate court fees had been assessed. He argued that the Plaintiffs' claim of mesne profits amounting to Tshs. 1,000,000,000/= and the reference to Tshs. 350,000,000/= were insufficient to meet the requirements of Rule 4, as the value of the landed property itself needed to be disclosed for proper assessment of fees. Mr. Mayenga rejected the Plaintiffs' reliance on the Mukisa Biscuits case, arguing that the objection met the criteria for a pure point of law. He contended that the failure to comply with Rule 4 of G.N. 247/2018 constituted a straightforward legal issue. He also dismissed the Plaintiffs' argument that the Registrar's acceptance of the Plaint at the filing stage precluded the Preliminary Objection. He emphasized that legal requirements regarding the disclosure of the property's value were mandatory and could not be overlooked. In conclusion, Mr. Mayenga reiterated that the Plaintiffs had failed to indicate the value of the subject matter and argued that the cited cases in the 4th Defendant's submission in chief were relevant. Page 8 of 11 I have dispassionately considered the rival submissions in the light of the limbs of the preliminary objection, I will address each of the limbs as follows: On the First Limb of the Objection, the 4th Defendant argued that the Plaint did not indicate the value of the subject matter as required by Order VII Rule l(i) of the Civil Procedure Code. According to the 4th Defendant, the Plaintiff relied on claims of mesne profits and loss of opportunity in paragraphs 7, 21, and 23 of the Plaint, which were insufficient to establish the value of the disputed landed property. The Plaintiffs contended otherwise, stating that the value was adequately disclosed in the said paragraphs, with paragraph 23 explicitly indicating that the claim exceeded Tshs. 350,000,000/=. They further submitted that this amount invoked the jurisdiction of this Court and allowed proper assessment of court fees. Apparently, Order VII Rule l(i) of the Civil Procedure Code mandates that the Plaint must disclose the value of the subject matter for jurisdictional purposes. Upon scrutiny, it is evident that the Plaint heavily relies on claims of mesne profits (Tshs. 1,000,000,000/=) and loss of opportunity, without explicitly stating the actual value of the disputed landed property. Page 9 of 11 It is a settled principle of law as meticulously argued by Mr. Mayenga, that the value of landed property must be ascertained through a valuation report, or an approximation based on its current market value. Reliance on mesne profits or loss of opportunity does not suffice to meet this requirement. Furthermore, the discrepancies between the figures cited in paragraphs 7, 21, and 23 of the Plaint create ambiguity regarding the actual value of the subject matter. Thus, I find merit in the 4th Defendant's argument that the Plaint contravenes Order VII Rule l(i) by failing to disclose the value of the subject matter, rendering the suit incompetent in this respect. On the second limb, the 4th Defendant submitted that the Plaint violated Rule 4 of the Court Fees Rules, 2018, which requires the assessment of court fees based on the value of the subject matter. They contended that the failure to disclose the value of the landed property meant that the appropriate court fees could not be assessed. The Plaintiffs argued that the court fees were properly assessed at the filing stage and that if this were not the case, the Plaint would have been rejected by the [Deputy] Registrar. They further argued that this objection did not qualify as a pure point of law under the principles established in Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd, [1969] E.A. 696. Page 10 of 11 Upon consideration, I note that the requirement under Rule 4 of G.N. 247 of 2018 is unequivocal. The value of the landed property must be disclosed to enable proper assessment of court fees. As previously established, the Plaint fails to indicate the value of the subject matter. The Plaintiff's reliance on the Registrar's admission of the Plaint does not override the mandatory requirements of the law. As for the contention regarding the nature of the objection, I find that the issue of compliance with Rule 4 of G.N. 247/2018 is a pure point of law. The determination of whether the Plaint meets the requirements of the law does not involve an inquiry into disputed facts but rather a straightforward interpretation of legal provisions. Accordingly, I find the second limb of the objection meritorious. In the upshot, the Preliminary Objection raised by the 4th Defendant is upheld. The suit is struck out. Costs of the Preliminary Objection are awarded to the 4th Defendant. It is so ordered. LALTAIKA Court: Ruling delivered in Court Chambers this 10th day of December 2024 in the presence of Ms. Mariam Saleh, learned Advocates, Counsel for the Plaintiffs, also holding brief for Capt. Ibrahim Bendera, Counsel for the 1st Defendant and Mr. Sylvanus Mayenga, learned Advocate, Counsel for the 4th Defendant. Page 11 of 11