SHIJA Mathias

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA RISC. CIVIL APPLICATION No. 26742 OF 2023 (From the Judgment of the High Court of Tanzania at Tabora in Civil Appeal No. 07 of2023, arising from Civil Appeal No. 21 of2022 in the District Court of Tabora, originating from Civil Case No. 81 of2021 in the Urban Primary Court of Tabora) SHIJA MATHIAS MANG'OMBE......................................................... APPLICANT VERSUS ABDULHAKIM HAMAD KHALID.................................................. RESPONDENT RULING Date of Last Order 11/06/2024 Date of Delivery: 03/07/2024 KADILU, J. The instant application has been preferred under Section 5 (2) (c) of the Appellate Jurisdiction Act, [Cap. 141 R.E 2002]. The applicant is seeking certification by this Court to the Court of Appeal that there is a point of law involved in its decision in PC. Civil Appeal No. 07 of 2023 delivered on 20/10/2023 by Hon. A. Bahati Salema, Judge. The application is made vide chamber summons and has been supported by an affidavit of Mr. Kashindye Lucas, an Advocate representing the applicant. The respondent did not file a counter affidavit opposing the application. The brief facts giving rise to this application are that; in 2021 the applicant filed Civil Case No. 81 in the Urban Primary Court of Tabora against the respondent. The case was decided in his favour. The respondent was dissatisfied. He successfully challenged it before the District Court of Tabora via Civil Appeal No. 21 of 2022. Aggrieved, the applicant filed in this i court, PC. Civil Appeal No. 07 of 2023 which was dismissed. He then lodged a notice intending to appeal to the Court of Appeal against the decision of this Court. Since this is a second appeal, there has to be a certification that a point of law is involved hence, this application. When the application was called on for hearing, the applicant was represented by Advocate Kashindye Lucas whereas the respondent appeared in person, without legal representation. Submitting in support of the application, Mr. Kashindye stated that the applicant and the respondent were the landlord and tenant respectively. He contended that based on the relationship between the parties, Tabora Urban Primary Court had no jurisdiction to entertain their dispute. The learned Advocate referred to the Land Disputes Courts Act [Cap. 216 R.E. 2019] in supporting his argument. He explained that although the law prohibits raising new matters at the appeal stage, where the point touches the jurisdiction of the court, it is an exception. He, therefore, prayed for this court to certify that in the case at hand, there are points necessary to be considered and determined by the Court of Appeal. He then submitted that the application for certification on points of law centres on the issues/points highlighted under paragraph 6 of his affidavit. According to the said paragraph, the points the applicant wants to take to the Court of Appeal for determination are: (i) That, the trial court had no requisite jurisdiction to entertain the dispute between the landlord and tenant of the warehouse. (ii) That, the appellate Judge erred in law for failure to order compensation for renovation upon holding that there was a contract between the parties. 2 In his brief submission, the respondent argued that the contractual relationship between him and the applicant was already determined by this Court. According to him, the issue of landlord and tenant arose later which was not the matter in dispute previously. He expounded that the original dispute was concerning the renting of machines. He wondered how these two issues were connected and detained him in court endlessly. He prayed for the application to be dismissed. Having taken into account Mr. Kashindye's affidavit and submissions of both parties, the court is now required to determine whether or not the applicant has raised a point of law worth certifying to the Court of Appeal. In determining this question, I wish to point out that this court has exclusive domain to grant a certificate on point of law under Section 5 (2) (c) of the Appellate Jurisdiction Act. It is also worth noting that jurisdiction to deal with land matters is exclusively vested in land courts. I fully agree with Mr. Kashindye that the issue of jurisdiction may be raised at any stage of the case. Starting with the second point raised by the applicant, the question is whether a claim for compensation for breach of a lease agreement is a land matter within the meaning of the law to exclude ordinary courts'jurisdiction. The applicant complains that this court erred in law for failure to order compensation for renovation upon holding that there was a contract between the parties. Without much ado, I find this as a clear recognition by the learned Counsel that the matter was not a land dispute. Moreover, the awarding of reliefs is purely at the discretion of the court depending on the facts of each case. If any party is dissatisfied with the reliefs awarded, he/she 3 may raise it as one of the grounds of appeal, not as a point of law calling for an intervention by the Court of Appeal. Regarding the point as to whether leases are land matters, the answer may be found in the case of Charles Rick Mulaki v William Jackson Magero, Civil Appeal No. 69 of 2017, High Court of Tanzania at Mwanza. In that case, the court cited the provisions of Section 167 of the Land Act, Section 62 of the Village Land Act, Section 4 (1), Section 3 (1), and (2) of the Land Disputes Courts Act, and held that disputes over leases are not land disputes. It went further elaborating that under Section 109 (1) and (2) of the Land Act, ordinary courts have the power to entertain disputes over breach of lease agreements. The Court of Appeal had already decided in Bagamoyo District Council v. A/s Noremco Construction & Another, Civil Appeal No. 106 of 2008 that: "... special courts have been established specifically to deal with disputes or complaints concerning land matters only. And it is those Courts and no others which have exclusive jurisdiction on matters pertaining to land." It is worth noting that the law permits the High Court to issue a certificate on the point of law where the intended appeal reveals some disturbing features requiring the guidance of the Court of Appeal. The purpose is to spare the Court of Appeal time to deal with critical issues and to enable it to give adequate attention to cases of true public importance. Concerning the application at hand, there are numerous authorities to the effect that disputes about lease agreements are not land matters. See for example, Maige, J., (as he then was) in Charles Rick Mulaki v. William 4 Jackson Magero {supra}, Mgeyekwa, J., (as she then was) in Camel OH (T) Limited v. Bahdela Company Limited, Land Case No. 104 of 2021, and Mlay, J., in Abdul Rahim Shadhiii^s the Guardian of Miss. Fatuma A.R. ShadhiH v. Mandhar GovindRaykar, Civil Appeal No. 296 of 2004, High Court of Tanzania at Dar es Salaam. I hinted earlier that the applicant contended that the trial court had no requisite jurisdiction to entertain the dispute between the landlord and tenant of the warehouse. Although the learned Counsel did not provide details about this contention, I have noted that the parties' dispute in the primary court concerned the expenses for the renovation of a godown as per their lease agreement. Therefore, it is crystal clear that the subject matter of the dispute had nothing to do with land. Since I have already shown that disputes over lease agreements are not land matters, there was nothing wrong with the Urban Primary Court of Tabora in determining such a dispute. As such, in the impugned decision of this Court, I find no pure legal point worth determination by the Court of Appeal. Consequently, the application for certification on a point of law is dismissed for lack of merits. Since the respondent did not pray for the costs, I give no order as to the costs. It is so ordered. 5 The ruling delivered in chamber on the 3rd Day of July, 2024 in the presence of Mr. Kashindye Lucas, Advocate for the applicant. KADILU, MJ. JS / JUDGE 03/07/2024 6