3 version Judgment Sarah Loth Mbise

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND APPEAL NO. 000029301 OF 2024 SARAH LOTH MBISE (ADMINISTRATIX OF THE ESTATE OF ADELAIDE GEORGE MOWO)) .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS BEDA MICHAEL KILEO .............................. RESPONDENT / DEFENDANT JUDGMENT LALTAIKA, J, The Appellant herein SARAH LOTH MBISE (Administratrix of the estate of the late Adelaide George Mowo) is dissatisfied with the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamala (the DLHT) in Land Application No.519 of 2019. She has appealed to this Court by way of a Petition of Appeal containing the following grounds: 1. That the learned chairman erred in law and facts for failure to analyze weakness of the evidence produced by the Respondent to support his case led to ex parte judgment in his favour. 2. That the learned trial chairperson erred in law and facts for failure to establish the fact that the Appellant pleaded to have been unable to find the title deed and urged him to carry over the duty as a result there is no any established evidence for the Respondent to have ever demanded the money after three months lapsed. 3. That, the learned trial Chairman wrongly awarded the Respondent exorbitant interests of twenty five percent (25%) per year from date of agreement contrary to what agreed in the exhibit p2. When the appeal was called for mention, representation by Counsel was as follows: Mr. Harry Mwakalasya, learned Advocate, appeared for the Appellant and Ms. Leah Kamanga, learned Advocate appeared for the Respondent. Parties chose written submissions as a form of hearing. With a nod of approval from this Court, the following schedule was agreed upon: (i) Appellant’s written Page. 1 submission in chief: 6/3/2025 (ii) Respondent’s reply 14/3/2025 (ii) Rejoinder if any 19/3/2025 (iii) Mention to set the date of Judgment: 20/3/2025 at 10:00 AM. I take this earliest opportunity to register my appreciation to Counsel for their spot on compliance with the scheduled order. This time management trait is essential to enable this Court to fulfil its constitutional mandate of timely dispensation of justice. I should probably add that when the learned Advocates appeared for scheduling for the date of Judgment a week ago, I commended them for having correctly used the e-CMS to file their submissions. Unlike most Counsel who simply upload a PDF document that is hardly accessible, the learned Advocates clearly filled the required slots for a complete submission. This needs to be emulated. The next part of this judgment is, in that order, a summary of submissions by both parties, my reasoning/analysis of the law and the verdict. Mr. Mwakalasya, Counsel for the Appellant, submitted in support of the grounds of appeal filed by the Appellant, urging the court to recall and revise the records of the District Land and Housing Tribunal for Kinondoni concerning the appropriateness and legality of its findings. Before addressing the grounds of appeal, he pointed out that the proceedings were tainted with illegality, which affected the jurisdiction of the trial tribunal. He contended that his preliminary objection to the tribunal’s proceedings was a pure point of law that touched upon jurisdiction. He emphasized that such an objection could be raised at any stage of a suit, including on appeal, since the issue of jurisdiction was fundamental and could be brought up whenever it became apparent that a court or tribunal had acted beyond its legally prescribed limits. Accordingly, he invited the court to consider the matter and determine whether the application had been filed in contravention of the Law of Limitation Act, CAP. 89 R.E. 2019. He referred to the Schedule, Part 1, Column One, Row No. 7, which stipulated that a suit founded on contract, unless otherwise specifically provided for, had a limitation period of six years. He submitted that the Respondent had commenced the case by filing an application before the tribunal on 19th August 2019, wherein he pleaded that he had entered into an agreement with the Appellant on 28th August 2012. He noted that the pleadings verified that at all material times, from August 2012 to the date of the suit, the Appellant had not complied with the agreement. However, the Respondent had neither pleaded nor verified that the Appellant had made any commitment or revised their agreement. Furthermore, he argued that the Respondent had not demonstrated that any action had been taken to execute the contract before the expiry of six years. Instead, the pleadings in the application to the tribunal had been filed after seven years. Page. 2 In support of his argument, he cited the Court of Appeal’s decision in Moto Matiko Mabanga vs. Ophir Energy Plc & Others (Civil Appeal No. 199 of 2021) [2021] TZCA 599, where the Court had considered Ali Shabani and 48 Others and reiterated that an objection based on time-bar constituted a pure point of law, requiring no further ascertainment of facts or evidence. He emphasized that a preliminary objection could not be raised in the abstract but had to be based on facts apparent in the pleadings without reference to any additional evidence. He further referred to the Law of Limitation Act, highlighting sections 27, 28, and 29, which provided for fresh accrual of the right of action upon acknowledgment and part payment. He argued that, despite these provisions, the Respondent had not pleaded any facts to establish that there had been a subsequent written agreement beyond what had been presented before the tribunal for enforcement. He contended that the Respondent’s pleadings regarding the August 2012 agreement were a nullity in law, as the claim had been pursued after more than six years. In advancing his argument, he relied on the principle that courts and parties were bound by pleadings, citing Pravin Girdhar Chavda vs. Yasmin Nurdin Yusufali (Civil Appeal No. 165 of 2019) [2022] TZCA 185, where the Court of Appeal had emphasized that parties could not introduce new matters without properly amending their pleadings. He urged the court to examine paragraph 6(iv) of the application before the trial tribunal and the provisions of the Law of Limitation Act, which specified that acknowledgment and part payment could reset the accrual of limitation. He briefly referred to Section 28, which required acknowledgment under Section 27 to be in writing and signed by the person making it. Moreover, he pointed out that no acknowledgment or payment could revive a claim if made after the expiry of the limitation period. He concluded that, as a matter of law, the case was time-barred, and the trial tribunal had lacked jurisdiction to entertain it. He cited Section 39 of the Law of Limitation Act, which provided that upon the expiration of the limitation period for a suit concerning possession of property, the claimant’s right to recover the property would be extinguished. He argued that this provision meant that once the limitation period had lapsed, the Applicant could no longer bring a lawsuit, effectively barring the claim from being pursued in court. Consequently, he urged the court to revise the proceedings of the trial tribunal, set aside its judgment and decree, and dismiss the entire case as a nullity with costs. Without prejudice to his submissions on the preliminary objection, he proceeded to address the appeal. He noted that while the Appellant had raised three grounds of appeal, she intended to abandon the first and second grounds and argue only the third. The third ground of appeal challenged the trial Chairman’s decision to award the Respondent exorbitant interest at a rate of twenty-five percent (25%) per year from the date of the agreement, contrary to the terms stipulated in Exhibit P2. Page. 3 He asserted that the suit before the trial tribunal had been premised on contract and that the contract submitted by the Respondent in support of his case had been admitted as Exhibit P2. Relying on the doctrine of the sanctity of contract, he maintained that parties were bound by their agreements and that courts were not permitted to alter contractual terms. He cited Kinondoni Municipal Council & Another vs. Oysterbay Villa Limited (Civil Appeal No. 152 of 2022) [2024] TZCA 378, where the Court of Appeal had reiterated that courts were not to modify contractual terms but merely to enforce them in the event of a dispute. He contended that the trial Chairman had erred in his ex parte judgment by interpreting the agreement in a manner that altered its terms. He referred to paragraph 11 of Exhibit P2, which stipulated that if the administratrix failed to comply with the agreement, she would be liable to pay TZS 10,000,000/- with interest at 25%. Furthermore, it had been agreed that failure to pay the amount would result in the pledged house being transferred to the intended buyer. He argued that the agreement had not specified that the interest would accrue annually, as had been determined by the tribunal. He further asserted that upon the lapse of the three-month period prescribed in the contract, it had been the Respondent’s duty to enforce or execute the agreement immediately upon the Appellant’s default, unless a different arrangement had been made in writing, as per paragraph 12 of the contract. He contended that the tribunal’s decision to award TZS 10,000,000/- with an annual interest of 25% amounted to redrafting the contract’s terms rather than enforcing what had been agreed upon. Additionally, he argued that the Respondent was not entitled to such yearly interest, either as general or special damages, since there was no evidence indicating that he had made any effort to demand payment upon suspecting that the Appellant had defaulted. In light of these arguments, he urged the court to allow the appeal by quashing the judgment and decree of the District Land and Housing Tribunal for Kinondoni and issuing appropriate orders. Ms. Kamanga, Counsel for the Respondent, disputed all the appellant's grounds of appeal. She noted that the appellant, in his submission, had introduced a new issue concerning jurisdiction, specifically relating to the law of limitation by arguing that the matter fell under contract law. However, she stated that the respondent had opted not to argue on this issue since it had never been raised before the trial tribunal and was not one of the grounds of appeal. She contended that it would be improper for the honorable court to entertain a new issue that was neither part of the grounds of appeal nor found in the trial tribunal proceedings. She further argued that the issue in question necessitated arguments and proof as to whether the matter was a land dispute or a contractual dispute, which required evidence for proper determination. Page. 4 Addressing the court, she emphasized that this stage was not appropriate for determining whether the case fell under contract law, with a limitation period of six years, or land law, with a limitation period of twelve years. She observed that the appellant’s entire submission was based on the newly raised issue, effectively abandoning some of the original grounds of appeal. According to her, if the appellant had considered this issue significant, he should have raised it as a preliminary objection before the hearing of the appeal or amended the memorandum of appeal to include it as a ground. She pointed out that the court’s last order had been to file submissions concerning the appeal, not to argue a preliminary objection. She maintained that the appellant's arguments on the new issue, which he termed as a preliminary objection, were improper. Ms. Kamanga stated that the respondent had no objection to the appellant’s decision to abandon the first and second grounds of appeal. However, she disputed the remaining third ground, in which the appellant had argued that the trial tribunal had wrongly awarded the respondent exorbitant interest of twenty-five percent per year from the date of the agreement, contrary to what was agreed upon in Exhibit P2. She explained that the parties had agreed that if the appellant failed to meet the conditions of their agreement within three months—either by handing over the title deed to the respondent or returning ten million shillings with twenty-five percent interest—the appellant would be liable to pay the agreed amount. She contended that the appellant had failed to return the money after the agreed three-month period, which ran from August 28, 2012, to November 28, 2012. She asserted that upon the expiry of that period, the appellant was obligated to refund the money, and failure to do so meant that the house provided as collateral should have been transferred to the respondent. However, she stated that despite several follow-ups, the appellant neither refunded the money nor handed over the house located at Plot No. 100, Block 43, Mwenge Area, Dar es Salaam, which was the subject of the agreement dated August 28, 2012. She noted that the respondent was compelled to file a suit after six years due to the appellant’s failure to meet his obligations. She further argued that for ten years, the appellant had neither handed over the collateralized house nor refunded the money to the respondent. She emphasized that the respondent could have used the money for investment and profit generation during that period. In her view, the tribunal’s order requiring the appellant to pay twenty-five percent interest annually until full payment was even favorable to the appellant. She opined that the tribunal could have instead ordered the disputed property to be transferred to the respondent or required the appellant to pay twenty-five percent interest every three months from the date of the agreement until full payment. Page. 5 She underscored that both parties had a duty to honor their contractual obligations. She reiterated that the appellant had been given three months to procure and deliver the title deed to the respondent but had failed to do so, nor had he refunded the money. She dismissed as baseless any assertion that the respondent had not taken adequate steps to assert his rights. She maintained that the agreement was in writing, with both parties having a record of it, and therefore, each party was obligated to honor it without reminders. She asserted that any claim that the respondent had not made efforts to demand his rights could not serve as a defense to nullify the contract’s terms. She referred the court to Section 37(1) of the Law of Contract Act, Cap 345, which provides that parties to a contract must perform their respective promises unless excused under the law. She also cited the case of Philipo Joseph Lukonde v. Faraji Ally Said (2020) 1 TLR 556, which emphasized that once parties have entered into a contract, they must honor their obligations, and courts should not condone a deliberate breach of contractual sanctity. Nevertheless, she submitted that should the honorable court find jurisdiction to re-evaluate the evidence, it should award the respondent interest on the decretal amount at the court’s rate from the date of judgment until full satisfaction of the decree. Additionally, she urged the court to order the appellant to pay general damages, as prayed in the application, given the prolonged period during which the appellant had withheld the respondent’s money. In conclusion, she argued that the appeal lacked merit and urged the court to dismiss it with costs. Mr. Mwakalasya, in his rejoinder submission, stated that he had received the respondent’s reply to the submission in chief on March 18 at 12:30 pm, which he considered quite late for preparing and filing the rejoinder submission. Having read the replying submission, he found it necessary to respond to certain aspects to ensure the record was clear. He contended that the respondent’s counsel had presented insupportable excuses to justify illegalities, despite the fact that the appellant’s counsel had orally addressed the court on a legal point intended for argument by both parties during the submissions. He emphasized his awareness that any party, as well as the court itself, was legally bound to raise any significant point of law that was material to the case. Mr. Mwakalasya further asserted that, as the first appellate court, it was the duty of the court to review the proceedings of the trial tribunal to assess their appropriateness, legality, and regularity. Accordingly, he maintained that the court had the power to rectify any errors made by the trial tribunal. Page. 6 He argued that the issue of jurisdiction raised by the appellant was not a matter requiring argument, as it was evident from the face of the record. By merely examining the pleadings, he asserted, the issue could be sufficiently resolved. He clarified that the case was based on contract (as the cause of action) and that the judgment had reiterated the terms allegedly agreed upon in the contract. He also explained that land matters subject to a twelve-year limitation period involved mortgages and the recovery of land possession. He pointed out that the period from August 28, 2012, to the date the application was registered on August 19, 2019, amounted to nearly seven years. In support of his argument, he referred to the case of Moto Matiko Mabanga v. Ophir Energy Plc & Others (Civil Appeal No. 199 of 2021) [2021] TZCA 599, citing page 13 of the decision available on TanzLII. He noted that in this case, the Court of Appeal of Tanzania had endorsed the decision in Swilla Secondary School v. Japhet Petro (Civil Appeal No. 362 of 2019) (unreported), where it was held that jurisdiction was a fundamental issue, as it determined a court’s or tribunal’s authority to adjudicate disputes. He stressed that courts and tribunals were prohibited from entertaining time-barred matters and that any proceedings conducted in violation of this principle would be declared a nullity. Regarding the respondent’s reply to the grounds of appeal, Mr. Mwakalasya observed that the respondent’s counsel had failed to state whether there was any evidence indicating that the respondent had ever demanded the return of his money. He pointed out that, in the written statement of defence, the appellant had alleged that the respondent had disappeared, making it unreasonable for the respondent to claim that the appellant had failed to pay Tshs. 10,000,000/- with 25% interest, let alone rush to demand the house as compensation. In conclusion, he respectfully urged the court to allow the appeal, quash the judgment and decree issued by the District Land and Housing Tribunal for Kinondoni, and issue appropriate orders with costs. Having dispassionately considered the grounds of appeal, trial Tribunal’s records and submissions by both parties two key issues call for my determination: 1. Whether the DLHT had jurisdiction to entertain the matter. 2. Whether the tribunal erred in awarding 25% annual interest on the decretal sum. On the first issue, the Appellant contends that the matter is contractual in nature and, therefore, falls under the six-year limitation period prescribed for contractual claims under the Law of Limitation Act, Cap 89 R.E. 2019. The Appellant argues that the claim was time-barred since the alleged cause of action arose on August 28, 2012, and the suit was filed on August 19, 2019, nearly seven years later. Page. 7 The Respondent, in rebuttal, argues that the matter is one of land and, therefore, falls under the twelve- year limitation period applicable to land disputes. The Respondent further submits that the tribunal properly exercised its jurisdiction, as the claim involved a house offered as collateral for the agreement between the parties. This Court finds that the issue of jurisdiction is fundamental and goes to the root of the authority of the tribunal to adjudicate the dispute. As emphasized in Moto Matiko Mabanga v. Ophir Energy Plc & Others (Supra), the question of jurisdiction is a threshold issue that can be raised at any stage, including on appeal. The Court of Appeal, in that case, cited Swilla Secondary School v. Japhet Petro (Civil Appeal No. 362 of 2019) (unreported), where it was held that courts and tribunals must not entertain matters that are time-barred, as doing so renders the proceedings and resultant orders a nullity. A review of the pleadings and the record of appeal reveals that the primary claim arose from an agreement between the parties, wherein the Appellant was required to either transfer the title deed or refund Tshs. 10,000,000/- with interest of 25% per annum. The matter, therefore, appears to be rooted in contract rather than in a pure land dispute. The fact that a house was offered as collateral does not, in itself, convert the dispute into a land matter warranting the twelve-year limitation period. The tribunal should have first determined whether it had jurisdiction before proceeding to hear the case on its merits. Given that the claim was filed after the six-year contractual limitation period had lapsed, the tribunal lacked jurisdiction to entertain the matter, rendering its proceedings and subsequent orders a nullity. This takes me to the second issue. I entertain no doubt in finding that even if the tribunal had jurisdiction, the award of 25% annual interest requires scrutiny. The Respondent argues that the interest was justified, as the agreement stipulated that failure to return the money within three months would attract a 25% interest charge. The Respondent further submits that the Appellant failed to fulfill her contractual obligations for ten years, and thus, the interest award was even favorable to him. However, the Appellant disputes this assertion, arguing that there is no evidence that the Respondent ever demanded payment of the money before instituting the suit. The Appellant maintains that the tribunal erred in awarding such an interest rate without proper legal justification. Section 37(1) of the Law of Contract Act, Cap 345 R.E. 2019, provides that parties to a contract must perform their respective obligations unless excused by law. Additionally, in Philipo Joseph Lukonde v. Faraji Ally Said (2020) 1 TLR 556, the Court underscored the sanctity of contracts, emphasizing that once parties enter into a contract, they must honour their obligations. However, interest awards must be reasonable and supported by evidence. Page. 8 The trial tribunal awarded interest at 25% per annum from the date of the agreement. However, it failed to consider whether this rate was justified, given the delay in enforcing the claim. The Respondent waited nearly seven years before filing the case, without demonstrating any efforts to demand payment earlier. While contractual terms should generally be upheld, courts are required to ensure that interest rates imposed do not amount to unjust enrichment or excessive penalties. Having carefully examined the submissions and the applicable legal principles, this Court finds that the DLHT lacked jurisdiction to entertain the matter, as the claim was time-barred under the six-year contractual limitation period. Consequently, the tribunal’s decision is a nullity. In the upshot, the appeal is allowed. The judgment and decree of the District Land and Housing Tribunal for Kinondoni are quashed and set aside. Each party shall bear its own costs. It is so ordered. E.I. LALTAIKA JUDGE 24.03.2025 Dated at DAR ES SALAAM this 25th of March 2025 . E. I LALTAIKA JUDGE OF THE HIGH COURT Page. 9