KIJUU JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA LAND APPEAL NO. 14376 OF 2024 (Arising from Land Application No. 461 of 2016 in the District Land and Housing Tribunal for Mwanza at Mwanza) SIMPLICIUS I. KIJUU……………………………………………………APPELLANT VERSUS GEORGIVS GURTI………………………………………………………1ST APPELLANT ARETAS MICHAEL……………………………………………………….2ND APPELANT JUDGMENT 1st & 15th October, 2024 KAMANA, J. In this first appeal, Simplicius I. Kijuu, the appellant, challenges the decision of the District Land and Housing Tribunal (DLHT) for Mwanza in Land Application No. 461 of 2016. In the said application, Georgivs Gurt and Aretas Michael, the respondents, sued the appellant, seeking, among other things, a declaratory order that the appellant had breached the lease agreement. According to the records, the respondents and the appellant entered into a lease agreement signed on 20th November, 2008. In the said agreement, the respondents leased part of Plot No. 60 Block IV Kirumba Polisi, Mwanza from the appellant to establish a grocery. It was further 1 agreed that the respondents should pay the appellant Tshs.1,440,000/- as 18 months’ rent for constructing the grocery. According to the first respondent, the appellant failed to construct the said grocery as agreed. Such failure necessitated the parties to enter into another agreement on 26th January, 2010 for the same purpose. It was agreed that the respondents should pay the appellant Tshs.1,333,500/- as construction costs. The appellant paid the said money on the understanding that the respondents would use the constructed grocery for eight years. Both agreements were admitted in evidence as Exhibits P1 and P2. It was stated by the 1st respondent that after some time, on 15th October, 2010 the appellant locked the door to the grocery by padlocks alleging that the agreement had expired. When they accessed the grocery, they found a loss of various properties including beverages, two TV sets and one refrigerator. The receipts for a TV set and refrigerator were admitted as Exhibits P3 and P4. On his part, the appellant testified that he is the legal owner of the disputed land and that he rented it to the respondents. The appellant stated that when the respondents were using the rented grocery, he was arrested by the police after being accused of breaking into the said grocery. He was released after the investigation found that he was not 2 responsible for breaking into the grocery. He asserted further that the second respondent was the one who broke into the grocery and that the lease agreement was to end in 2018. From the evidence adduced by the parties, the DLHT decided in favour of the respondents that the appellant breached the lease agreement. It further ordered him to refund Tshs.1,440,000/- paid under the first agreement and Tshs.2,160,000/- as costs for the lost TV set and refrigerator. Aggrieved, the appellant preferred this appeal. For reasons to be reflected in this judgment, I will not reproduce the grounds of appeal or discuss them. Worth noting is that when the matter was called for a hearing, the Court ordered the parties to argue for and against the appeal by way of written submission. Further, the parties were asked to address the Court on whether the DLHT had the jurisdiction to try the matter. Submitting on the issue raised by the Court, Mr. Elias Hezron, learned Counsel for the appellant, contended that land courts including the DLHT have exclusive jurisdiction to adjudicate land disputes. He asserted that such jurisdiction is vested in them under section 167(1) of the Land Act, Cap. 113 [RE.2019] and section 4(1) of the Land Disputes Courts Act, Cap.216 [RE.2019]. Amplifying his argument, the learned Counsel held the view that the two sections suggest that the land dispute 3 must be on the right of ownership or possession. He invited this Court to consider the case of Charles Rick Mulaki v. William Jackson Magero, Civil Appeal No. 69 of 2017-HC (Unreported). Relating his argument to the instant matter, Mr. Hezron, while admitting that the lease agreement creates a possessory right, contended that the respondents did not claim any possessory or usufructuary right of the leased premises. Based on that, he beseeched this Court to set aside the DLHT’s judgment for lack of jurisdiction. Responding, Mr. Denis Kahangwa, learned Counsel for the respondents, prefaced by contending that in determining whether the DLHT had jurisdiction or otherwise, it is necessary to delve into the pleaded facts, annexures and reliefs sought. He went on to contend that paragraph 6(a) of the application insisted that the lease agreement was still operational as it was agreed that the same should expire in 2018. He held the view that the respondents were legally deemed to be in possession and have an interest in the land as per the agreement. Mr. Kahangwa argued that by claiming 50% of the rental sum paid for the breach of the lease agreement from the appellant, the respondents were impliedly claiming possessory rights. He added that the cited case of Charles Rick Mulaki (Supra) did not oust the jurisdiction of the DLHT to adjudicate matters that fall under Sub-Part 4 of Part III of the 4 Land Act. He explained his argument by contending that section 107(1) of the Land Act was not couched in mandatory terms when vesting in the Magistrates’ Courts powers to adjudicate matters that are within the ambits of Sub-Part 4 of Part III of the Land Act. Based on that, the learned Counsel implored this Court to consider that the DLHT had jurisdiction. I have thoroughly reviewed the learned Counsel's submissions for both parties and cited laws and authority. The issue that invites my determination is whether the DLHT had jurisdiction. According to section 167 of the Land Act, the DLHT is amongst the courts with jurisdiction to determine all disputes, actions and proceedings concerning land. Further, the DLHT under section 3 of Cap. 216, subject to sections 167 of Cap. 113 and section 62 of the Village Land Act, Cap. 114 [RE.2019], is vested with the powers to determine land disputes in a given area. Section 4 (1) of Cap. 216 provides that no magistrate’s court established under the Magistrates’ Court Act, Cap. 11 [RE.2019] has civil jurisdiction to determine any matter under Cap. 113 and Cap. 114, unless otherwise stated by Cap.113. Deducing from the provisions of section 167 of Cap. 113 and sections 3 and 4 of Cap. 216 one may conclude that the said provisions have used different words to express the jurisdiction of the DLHT. While section 167 of Cap. 113 states that the DLHT has powers to deal with 5 disputes, actions and proceedings concerning land, sections 3 of Cap. 216 vested in the DLHT powers to deal with land disputes but subject to section 167 and section 42 of Cap. 113 and Cap. 114 respectively. Further, section 4(1) precludes the magistrate’s court from dealing with any matter of a civil nature under Cap. 113 and Cap. 114, unless otherwise expressly stated by Cap. 113. My reading of sections 3 and 4(1) of Cap. 216 convinced me that the two sections must be read together with section 167 of Cap. 113, section 42 of Cap. 114 and other relevant sections in Cap. 113. I take that position while in mind that sections 3 and 4 of Cap. 216 have been subjected to section 167 of Cap. 113, section 42 of Cap. 114 and other provisions of Cap. 113. For ease of reference, I reproduce sections 3 and 4(1) of Cap. 216 as follows: ‘3. (1) Subject to section 167 of the Land Act and section 62 of the Village Land Act, every dispute or complaint concerning land shall be instituted in the Court having jurisdiction to determine land disputes in a given area. (2) The Courts of jurisdiction under subsection (1) include— (a) the Village Land Council; 6 (b) the Ward Tribunal; (c) the District Land and Housing Tribunal; (d) the High Court; or (e) the Court of Appeal of Tanzania. 4. (1) Unless otherwise provided by the Land Act, no magistrates’ court established by the Magistrates’ Courts Act shall have civil jurisdiction in any matter under the Land Act and the Village Land Act.’ Section 167(1) of Cap. 113 which is relevant in this matter reads: ‘167-(1) The following courts are hereby vested with exclusive jurisdiction, subject to the provisions of this Part, to hear and determine all manner of disputes, actions and proceedings concerning land, that is to say- (a) the Court of Appeal; (b) the High Court; (c) The District Land and Housing Tribunal; (d) Ward Tribunals; (e) Village Land Council.’ Since section 167 of Cap. 113 overrides section 3 and 4(1) of Cap. 216, the words “dispute or complaint concerning land” in section 3 and 7 the words “any matter under the Land Act and the Village Land Act’ are to be construed to mean “disputes, actions and proceedings concerning land” as provided under section 167(1) of Cap. 113. See: Charles Rick Mulaki (Supra). Having taken that position, it is imperative at this stage to determine what constitutes “disputes, actions and proceedings concerning land” as used in section 167(1) of Cap. 113. In this regard, I am persuaded by My Lord Maige, J as he then was in Charles Rick Mulaki (Supra) where he observed: ‘...the expression "matters concerning land" would only cover proceedings for protection of ownership and or possessory rights in land.’ I understand that for a court to determine whether it has jurisdiction or otherwise, it must appraise itself with the cause of action and the reliefs prayed. From the two, the court is better placed to know whether it has jurisdiction or not. In this, I am fortified by the position taken by My Lord Mziray, J as he then was in the case of Exim Bank (T) Ltd v Agro Impex (T) 2 Ltd and 2 Others, Land Appeal No. 29 of 2008-HC (Unreported) where he observed: ‘Two matters ...[have] to be looked upon before deciding whether the Court is clothed with jurisdiction. One, you look 8 at the pleaded facts that may constitute a cause of action. Two, you look at the reliefs claimed and see as to whether the Court has power to grant them and whether they correlate with the cause of action...’ Armed with that position, I went through the application and found that the cause of action was a breach of the lease agreement which at the time of instituting the application was still operational in terms of tenure. In my view, the breach of the lease agreement, when the party complaining claims possessory or usufructuary rights, falls within the meaning of the dispute concerning land. However, when a complainant claims reliefs other than possessory or usufructuary rights, the breach of the lease agreement in itself cannot be termed a dispute concerning land. In the instant matter, the reliefs prayed during the trial were: 1. That the respondent be ordered to have breached a lease agreement of the stated premises. 2. That the respondent be ordered to pay an amount claimed in paragraphs 6(a)(iv) and (vi). 3. The respondent be ordered to pay general damages for the breach of the lease agreement for the inconvenience caused at an amount to be assessed by this tribunal. 4. Costs of this application. 9 5. Any other relief(s) that this Honourable Tribunal may deem fit to grant. In my view, none of the above relief claims possessory or usufructuary rights. In his argument, Mr. Kahangwa, learned Counsel for the respondents, tried to impress this Court that since the agreement was still operational, the respondents were in possession in law. He added that since the respondents claimed compensation of 50% of the paid rent, by implication they were claiming possessory and usufructuary rights. I hasten to state that I was not convinced by the arguments for the following reasons. One, assuming that the respondents at the time of filing the application possessed the premises in law, why in the said application, the respondents did not claim an eviction order against the appellant? This, in my view, would have demonstrated that the respondents claim possessory or usufructuary rights over the disputed premises. Two, by claiming compensation of 50% of the paid rent, the respondents demonstrated that they had no interest in possessing or using the disputed premises. Claiming compensation does not mean that a party claiming it claims possessory or usufructuary rights. In essence, a party claiming compensation claims for the loss, suffering or injury, in this case, arising from the breach of the lease agreement. 10 In his submission, Mr. Kahangwa contended that the case of Charles Charles Rick Mulaki (Supra) did not ouster the jurisdiction of the DLHT in determining matters that arose from the breach of the lease agreements. Without much ado, I hasten to state that according to the cited case, land courts, including the DLHT, are only vested with powers to hear and determine land disputes that revolve around ownership, possessory or usufructuary rights. When the matter is not about the claims for ownership, possessory or usufructuary rights, it goes without saying that the land courts have no jurisdiction. I understand, as argued by Mr. Kahangwa, that section 107 of Cap. 113 was not couched in mandatory terms. Hence, in his view, that does not preclude DLHT from entertaining proceedings under Sub-Part 4 of Part III. In this, I wish to state that the jurisdiction of the court is a creature of the statute. Given that, the jurisdiction of the court must be expressly stated by the statute. It is not correct to assume that the court has jurisdiction over certain matters when it is not expressly stated. Section 167(1) of Cap. 113 has been interpreted to mean that the land courts have jurisdiction to determine land disputes relating to claims of ownership, possession and use of the disputed land. Given that, it is not correct to assert that section 107 of Cap. 113 also confers jurisdiction on the land courts to determine matters under Sub-Part 4 of Part III. 11 It is worth noting that not at all times the use of the word “may” suggests discretion. In the case of Chiriko Harun David v. Kangi Alphaxad Lugola, Civil Appeal No. 36 of 2012-CAT (Unreported), the Court of Appeal had the opportunity to give a thought to the use of the words “may” and “shall”. The apex Court stated: ‘Furthermore, as was again stated by Srivastara (supra), whose views we also share, the use of the words "shall" and "may" is not always the determinant factor. Regard must always be given to the context, subject matter and object of the statutory provision in question, in determining whether the same is mandatory or directory/discretionary. In this context, we may also add this Court’s decision of the Full Bench in Bahati Makeja v Republic, Criminal Appeal No. 118 of 2006 (unreported) that it is not always the case that where the word "shall" is used that should mean that the function so conferred must be performed.’ In my view, Cap. 113 was enacted as, among other things, the basic law for matters relating to land dispute settlement. This is well reflected in its long title. As a whole, section 167 (1) of Cap.113 confers jurisdiction to determine disputes concerning land to the land courts. However, the same Act reserves to the magistrates’ courts powers to resolve disputes 12 under Sub-Part 4 of the Act. This is provided under section 107 of Cap. 113 and section 4(1) of Cap. 216. Given that, it is my considered view that the DLHTs have no concurrent jurisdiction with magistrates’ courts to determine matters under Sub-Part 4 of Part III of Cap. 113. If that were not the case, indeed legislators would have stated so. Having taken that position, I invoke my revisionary powers by setting aside the judgment, proceedings and orders issued by the DLHT for want of jurisdiction. Since the determinant factor was raised by the Court, I order no costs. Right To Appeal Explained. Order accordingly. DATED at MWANZA this 15th of October, 2024. KS KAMANA JUDGE 13