20130712 TZHC Arusha

IN THE HIGH COURT OF TANZANIA AT ARUSHA CIVIL CASE NO. 8 OF 2002 THE REGISTERTED TRUSTEES OF THE DIOCESE OF ARUSHA .............................................. ~ ... PLAINTIFF I Versus 1. NESTORY MSOFFE 2. HONEST MSOFFE 3. GASPER MASSAWE 4. NOVATUS STEVEN 5. EVANS LEMAMA 6. ILLUMINATA TEMBA 7. MARIA SENGE W/O TIMOTH ANDREW Date of last Order: 31/05/2013 Date of Ruling: 12/07/2013 RULING Before: F.H. Massengi, l. I st On 31 May, 2013 this court after going through the plaint and the prayers in the plaint and the evidence of PW1, was of the view that the main issue is based on tenancy agreement and the main prayer is for eviction of the defendants from plaintiff's houses. As such this court "suo motto" raised that issue of jurisdiction that this court lacked jurisdiction as this matter was filed in court in 2002 when eviction matters were in the domain of Rent Restriction Act. Therefore filing the same in this court was improper. Hence this court allowed the parties to address this court on that. ' 1 M/S Neema who represented the Plaintiff addressed this court that by looking para 16 of the plaint there is no landlord and tenancy relationship between the parties. She stated that this matter was filed in court on 4th March 2002 when the present land laws were not in operation. She concluded that there is no tenancy agreement and the suit does not fall under Rent Restriction Act. She contended that what the Plaintiff is pleading is trespass into his property hence seeking for eviction of the trespasser and therefore this court has jurisdiction to try it. On the other side, Mr. Makange learned counsel who appeared for the Defendants stated that, by referring to para 28 of the Plant the relief claimed is that of eviction of defendants based on tenancy agreement and therefore this court does not have jurisdiction. In rejoinder M/S Neema learned counsel stated that what submitted by Mr. Makange is a matter of evidence which does not determine cause of action. She maintained that this court have jurisdiction. After hearing the counsels from both sides, the issue for consideration before court is whether this court has jurisdiction to determine this matter. In determining this issue I will start by referring to the plaint, particularly the reliefs sought by the Plaintiff. Substantially, the plaintiff in this matter seek for an order of eviction against all defendants from his land. I have no doubt that the question of eviction order from the house fall under the category of land disputes. Without considering the nature of relationship between the plaintiff and the defendant because by doing that I will be forced to invite evidence, the reliefs sought alone establish that this is a land dispute. Even in the case of Shabani Saidi Shabani vs. CRDB Bank Limited, Land Case No. 210 of 2004 (unreported) -High Court at Dar es Salaan (Land Division) my learned sister Chinguwile, J stated that; "........... for determination whether or not this suit falls under the category of land disputes........ is by looking at the reliefs which are being sought. " 2 This suit was filed on 12th March, 2002 when the provision of section 167(1) of the Land Act Cap. 113 R.E 2002 was applicable. The land Act started to operate on 1st May, 2000. Section 167(1) of that Act reads that; "(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 Land Division of the High Court established in accordance with law for time being in force for establishing courts divisions; (c) the District Land and Housing Tribunals; ( d) Ward Tribunals; (e) Village Land Councils." But since the above mentioned courts were not in existence until the enactment of the Land Disputes Courts Act, Act No. 2 Of 2002 which started to operate on 1st October, 2003; by then land cases fall under the provisions of the Rent Restriction Act, Cap. 339 R.E 2002 which established the Regional Housing Tribunal and Housing Appeals Tribunal. As such when this matter was filed, this court had no jurisdiction to hear this matter. Basing on the above, I therefore strike out as it was not filed in the proper jurisdiction this matter and advise parties to institute this case to the court with proper jurisdiction. 3 Order accordingly. SGD: F.H. MASSENGI JUDGE 12/07/201·3 Ruling delivered in Court this 1ith of Jul , 2013 in the presence of M/S 1 Neema for Plaintiff and Mr. Makange for D~fendants. SGD: F.H. MAJENGI JUDGE 12/07/201:3 I hereby certify this to be a true copy of the original. ARUSHA 4