scovia jeremia kamugumya vs edward museleta others 2024 tzhc 260 9 february 2024

UNITED REPUBLIC OF TANZANIA JUDICIARY HIGH COURT OF TANZANIA MOROGORO DISTRICT REGISTRY AT MOROGORO LAND APPEAL NO. 17 OF 2023 (Arising from decision ofLand Appiication No. 182 of216, District Land and Housing Tribunalfor Morogoro) SCOVIA JEREMIA KAMUGUMYA APPELLANT VERSUS EDWARD MUSELETA RESPONDENT TANZANIA WOMEN BANK PLC 2^^ RESPONDENT USWEGE JOTHAM KILEMBE ....3^° RESPONDENT NOLIC COMPANY 4^" RESPONDENT RULING Date of last Order: 24/11/2023 Date of ruling: 09/02/2024 BEFORE: G.P. MALATA.3 Page 1 of 14 This appeal emanates from Land Application No. 182 of 20.16 of the District Land and Housing Tribunal for Morogoro where the appellant prayed for; 1. Declaration that the alleged agreements are null and void for want of spousal consent, 2. Declaration that the disputed premises is a joint property of the applicant and 1^ respondent, 3. An Order restraining the and 4^^ respondents from interfering with applicant's occupation of the suit land. The DLHT ruled in favour of the respondents. Aggrieved thereof, the appellant appealed to this court armed with three grounds of appeal, namely; 1. That, the Chairperson erred in law and facts by failure to consider the omission to call a material and credible witness to corroborate the disputed signature in exhibit DE12 in order to verify that, the appellant signed the alleged spouse consent. 2. That, the Chairperson erred in iaw and facts by wrongly interpreting section 75 (1) of the of the Evidence Act, Cap.6 R.E.2019 and usurped the powers of investigating authority without seeking the Page 2 of 14 expert opinion from the forensic bureau department of police and hence arrived into a wrong decision. 3. That, the Chairperson erred in law and facts by failing to scrutinize, analyze and evaluate the evidence in exhibit DEI in relation to the dispute before the tribunal and hence arrived to a wrong decision. In nutshell, the appellant and first respondent are spouses. As per the pleadings, it was alleged that, on 25/10/2010 the 1^ and 3'"^ respondents entered into loan agreement in which the 1^^ respondent secured TZS 100,000,000/=. The certificate of title No. CT80006 for house on Plot No. 160 Block K situated at Kihonda area, within Morogoro Municipality was used to secure the loan. It is said alleged that, the house is matrimonial property acquired under joint effort by the spouses and that there was no consent from the appellant to mortgage it for said the loan. That, the borrower breached the loan agreement by failure to honour the loan obligations, thus the landed property under certificate of title No. CT80006 for house on Plot No. 160 Block"K"situated at Kihonda area, within Morogoro Municipality was under auction for the outstanding loan amount. Page 3 of 14 In view thereof, the appellant rushed to the District Land and Housing Tribunal for Morogoro and filed Land Application No.182 of 2016 and upon determination, the DLHT dismissed appellant's claims, thence the present appeal with the afore stated reasons. Having read the DLHT's record, this court gathered no land dispute falling within the land laws between the parties herein rather a commercial dispute due to placing a certificate of title No. CT80006 for house on Plot No.160 Block ''K" situated at Kihonda area, within Morogoro Municipality for loan secured by the 1^ respondent. As such, this suo motto raised issue on; 1. whether there was land dispute under the land laws amenable by the DLHT and whether the Value of land fall within the jurisdiction of the DLHT. 2. If the answer to issue no.l is in negative then whether DLHT had jurisdiction to determine the matter. The court directed the parties to address the points by filing written submission for and against not later than 18/10/2023. Page 4 of 14 In compliance, with this court's order, Mr. Francis Mwita learned counsel for the appellant filed submission, maintaining that the dispute was land dispute amenable by DLFIT. To bolster his submission, he argued that, since the property involved is landed property then the authority with mandate to adjudicate the matter was the DLHT, thus clothed with jurisdiction and falls within the land laws. He cited section 33(1)(a) and (b) of the Land Disputes Courts Act, Cap. 216 R.E.2019 where the DLHT derived its powers to adjudicate the matter. Finally, he submitted on the effect in case the court finds that DLHT had no jurisdiction to adjudicate on the matter, that the fate is to nullify all the proceedings and decision entered without jurisdiction. Mr. Epaphro Mwego learned State Attorney failed to adhere to this court's order to address on the points of law on jurisdiction raised by the court suo motto instead filed submission on the main grounds of appeal. It is so unlucky other parties did not file their submission. In view thereof, I shall consider the appellant's submission who complied with this court's order. Page 5 of 14 This court launch with prefacing the governing principles on jurisdiction matters in Mwananchi Communications Limited and two others vs. Joshua K. Kajula and two others. Civil Appeal No. 126/01 of 2016, the court of appeal had these to say; "The law is well settled that the question ofjurisdiction may be canvassed at any stage even on appeal by the parties or suo motu by the court since it goes to the substance of a triai as held in Michael Leseni Kweka vs John EUafe,^ Civil Appeal No. 51 of 1997; Tanzania Revenue Authority vs New Musoma Textiles j Ltd, Civil Appeal No. 93 of 2009; and Tanzania Revenue Authority vs Tango Transport Company Ltd, Civil Appeal No. 84 of2009(all unreported)and in the last case the Courtstated: "Jurisdiction is the bedrock on which the court's authority and competence to entertain and decide matters rests". We align ourselves to previous holdings on this issue by this Court in Tanzania Revenue Authority vs Tango Transport Company Ltd (supra) and Tanzania China Friendship Textile Co. Ltd vs Our Lady ofthe Usambara Sisters(supra) which in effect pronounced that, an issue questioning or addressing the jurisdiction ofa court is Page 6 of 14 paramount and can be raised at any time even at the stage ofappeai. The fact that the notice ofpreiiminary objection which first raised this issue at the triai stage was withdrawn, we find, does not by itseifand under the circumstances of this case in anyways bar the issue being raised again as it was in this case. Regard should be to the fact that the triai court did not have the opportunity to consider and determine this issue. Thus, we are of the view that the assertion that such an issue cannot be raised at this stage is misconceived and iacks merit. Section 7(1)ofthe CPC we find is an importantstarting point when deliberating on jurisdictionai issues, it provides: "The Courts shall(subject to provisions herein contained) have jurisdiction to try aii suits ofcivil nature excepting suits of which their cognizance is either expressly or impiiediy barred'. In the present case, the matter has been dealt as land matter thus filed ahd adjudicated under the land laws. In view thereof, authorities established under section 3(1) of the Land Disputes Courts Act which provides that. "Subject to section 167 of the Land Act and section 62 of the Viiiage LandAct, every dispute or complaintconcerning iand shaiibe instituted Page 7 of 14 in the Court having jurisdiction to determine iand disputes in a given area. (2) The Courts ofjurisdiction under subsection(1)inciude- (a)the Viiiage Land Councii; (b)the Ward Tribunai; (c)the District Land and Housing Tribunai; (d)the High Court; or (e)the Court ofAppeai of Tanzania." Now for the above authority to adjudication mandate on dispute arising land laws, the dispute itself must be have land dispute elements. Essentially, under our laws there is not definition of land dispute or what constitutes parameters of land disputes. However, google map has illustrated land dispute as; "Confacting daims to rights in iand by two or more parties, focused on a particuiar piece ofiand, which can be addressed within the existing iegai framework. Land disputes may or may not reflectsome broader confiict over iand." Page 8 of 14 It is my settled, legal position that, land dispute can be gathered by looking at by nature of dispute touching; one, ownership and use of land, two, trespass to land, three, boundaries of land, four, reliefs sought, five, the applicable law under which the claims or cause of action is rooted from, six, interest on landed mortgaged property and seven, jurisdiction of court to try the dispute. This court has gone through the appellant's complaint that, she did not consent in mortgaging the landed property known hold under certificate of title No. CT80006 for house on Plot No. 160 Block "K" situated at Kihonda area, within Morogoro Municipality. That, appellant's interests is that, the landed property in dispute is a matrimonial jointly acquired and the same is subject to sale following the breach of loan agreement by the 1^ respondent, defaulting party. The lender is about to sale the mortgaged property to recover the outstanding amount. This will involve transfer of all interest on the mortgaged property from the registered owners to the lender. The discharge of mortgaged property will have the effect of transferring of ownership of all landed interest on landed property to the lender. The appellant via land application no.182 of 2016 described that the landed mortgaged property is matrimonial property and Page 9 of 14 that she did not consent to mortgaging the same as required by the law. Thus, she is protecting interest over the said landed property. The issues raised by the appellant herein are regulated by Part X of the Land Act, Cap.113 R.E.2019 and the Mortgage Financing (Special Provisions) Act, 2008. Having so said, it evident therefore that, the appellant has raised ownership of landed interest in the mortgaged landed property referred to as certificate of title No. CTBOOOO for house on plot no.160 block "K" situated at Kihonda area, within Morogoro Municipality, claimed to be matrimonial property. Further, the dispute touches interest on land and the effect of transferring ownership including the claimed appellant's interest and that the dispute is amenable under the land laws, that is the Land Act, the Mortgage Financing (Special Provisions) Act, 2008 and the Land Disputes Courts Act. In the event therefore, this court has ascertained and satisfied that, the dispute touches land dispute, thus the land dispute settlement authorities established under section 3 of the Land Disputes Courts Act and section 167 of the Land Act have jurisdiction to adjudicate the matter, the DLHT inclusive. Page 10 of 14 As to the second part, on whether the DLHT had pecuniary jurisdiction, it is evident that, the landed property secured a loan of TZS 100,000,000/=. This means that, the property worth that much at the time of concluding the loan agreement, in 2017. The learned counsel for the appellant opined that, submitted that, what establishes the pecuniary jurisdiction is the substantive claim or value not general damages. He referred this court to the case of in Mwananchi Communications Limited and two others Vs Joshua K. Kajuia and two others, supra, where the court held that; We are aware ofthe above observation by the Court in Tanzania- China Friendship Textile case (supra), but it is noteworthy that immediately after making the above statement the Court observed as foiiows: "Our view, it is the substantive ciaim and not the generai damages which determines the pecuniary jurisdiction of the court'. He further submitted that, in the circumstances the pecuniary jurisdiction in the circumstances can be gathered to the fact that since the said mortgage Page 11 of 14 secured a loan of TZS 100,000,000/= then it goes without saying that, the property referred to as certificate of title No. CTSOOOO for house on Plot No. 160 Block ''K" situated at Kihonda area, within Morogoro Municipality, claimed to be matrimonial property had similar or more value as the security has to be of a value beyond the loan. Mr. Mwita submitted therefore that, at the time of filing the Application No. 182/2016 the DLHT had only, jurisdiction of fifty Million and forty million for immovable and movable properties respectively. That section 33 section 33 of the Land Disputes Courts AcC was amendment via Written Laws (Miscellaneous Amendment) Act, No.4 of 2017 and GN No. 13 of 2017 and came with new limit that; (2) The jurisdiction conferred under subsection (1) shaii be iimited- (a)in proceedings for the recovery ofpossession ofimmovabie property, to proceedings in which the vaiue ofthe property does not exceed three hundred million shillings; and (b)in other proceedings where the subject matter is capabie of being estimated at a money vaiue, to proceedings in which the Page 12 of 14 value of the subject matter does not exceed two hundred million shillings. As such, the DLHT had no pecuniary jurisdiction over the matter. In the event, I entirely agree with Mr. Mwita learned counsel that, pecuniary jurisdiction is reconned from the amount of the landed property secured, that is to say TZS 100,000,000/= at the time of filing Land Application No. 182 of 2016, the DLHT had no pecuniary jurisdiction over the matter. Having so said, I hereby rule that, the DLHT entertained Land Application No. 182 of 2016 without jurisdiction. The question is what is the effect of the proceedings adjudicated by the court without jurisdiction? This court finds that, anything entered without jurisdiction is as good as nothing in law, thus a nullity. In the event therefore, I hereby nullify the proceedings and judgement in Land Application No. 182 of 2016 by the DLHT entered without jurisdiction. As the appeal before this court emanates from a nullity proceeding then, the same suffers similar consequences. In the upshot, I hereby struck out the. appeal based on the afore stated reasons for the decision. Page 13 of 14 IT IS SO ORDERED DATED at MOROGORO this 09^*^ February, 2024 lA iV f-A A :\AR (Af I I!—! A '\m G. P. MALATA "■ • ■ ■ ,! ! ■ m JUDGE ~'y y 09/02/2024 RULING delivered at MOROGORO in chambers this 09^^ February 2024 in the presence of the appellant and the respondent for the applicant and in absence of the 2"^, 3^^ and 4^^^ the respondents. C0(_i;9>\x J'fil fmi -l.:\ lA; A A U { i >-! V ®^^EPUTY REGISTRAR 09/02/2024 Page 14 of 14