IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA
(LAND DIVISION)
AT DAR ES SALAAM
LAND CASE NO. 25089 OF 2024
REV. PADRE JOSHUA DAUDI MWIGUTI........................ PLAINTIFF
VERSUS
PREMIUM PARTS AND SERVICES LIMITED.................DEFENDANT
RULING
& lffh January 2025
L.HEMEDJ
The suit landed property is a Farm No 2689, Buza Area in Dar es
Salaam alleged to have the value of TZS 500,000,000/. On the 4th day of
October, 2024, the Plaintiff herein through the legal service of Mr. Baraka
Mbwilo, learned advocate presented the instantaneous suit suing the
Defendant for breach of lease agreement and for trespass into the suit
landed property. The Plaintiff is thus seeking for judgment and decree
against the defendant as follows: -
"1) The court declares that the defendant breached
the contract of lease entered between her and the
plaintiff
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2) The court declares that the defendant is a
trespasser to the land in dispute
3) The defendant be ordered to give vacant
possession of the suit land with immediate effect
4) Defendant be ordered to pay Plaintiff the rental
fees from 15h February2024 to the date ofjudgment
5) Defendant pays bank rate interest of 5% per
month of the rental fee from 15th February 2024 to
the date ofjudgment.
6) The Defendant pays interest on the decretal
amount at the Court rate of 7% per annum from the
date of delivery ofjudgment till when the decree is
fully satisfied;
7) The defendant pays to the plaintiff TZS
1,000,000,000/= as general damages
8) The defendant pays the Plaintiff costs of and
incidental to this suit; and
9) Any other relief(s) that the Honorable Court may
deem fit andjust."
The Defendant who has been under the legal service of Mr. Adrian
Mhina, learned advocate, promptly filed the written statement of defence
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disputing all the claims. The learned counsel also raised the preliminary
objection in /imine //Zzsthus: -
'7, That this Honourable court has no jurisdiction to
entertain this suit.
2. The plaint is defective for contravening Order VII
Rule l(i) of the Civil Procedure Code CAP 33 R.E
2019."
Hearing of the preliminary objection was by way of written submissions
which were filed timely in accordance to the filing schedule directed by the
court. Mr. Mhina, acted for the Defendant while the Plaintiff enjoyed the
legal service of Mr. Mbwilo.
The learned counsel for the Defendant dropped the 2nd limb of
preliminary objection and argued the 1st limb of objection on the jurisdiction
of the court to entertain the matter at hand. The only issue for determination
is whether the court is clothed with the requisite pecuniary jurisdiction to
determine the matter at hand.
In his submissions in chief, the learned counsel for the Defendant has
asserted that the plaintiff has claimed the amount of TZS 1,000,000,000/=
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as general damages for breach of lease agreement. In his view, general
damages cannot be the determinant factor of the jurisdiction of the court.
He insisted for the matter to be struck out for want of pecuniary jurisdiction
because the Plaintiff could not state the number of specific damages which
would have been the basis for determining the pecuniary jurisdiction of the
court. Reliance was put on section 13 of the Civil Procedure Code [Cap
33 R.E 2019] arguing that the matter should have been filed in the District
Land and Housing Tribunal which is the lowest court in the hierarchy
competent to try it.
In response thereto, the learned counsel for the Plaintiff argued to
have stated the value of the suit landed property in paragraph 25 of the
Plaint to beTZS 500,000,000/=. According to the learned counsel, the claims
against the Defendant is for breach of lease agreement and trespass into the
suit landed property. He wants the Defendant be evicted from the suit landed
property.
Let me begin by pointing out that, it has become an elementary law
that in determining preliminary objection the court is bound to make
reference only to what is pleaded. This has been stated in plethora of
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decisions including in the well-known case of Mukisa Biscuits
Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696
where the court had this to say in respect of the preliminary objections: -
"... a preliminary objection consists ofa point oflaw
which has been pleaded, or which arises by
dear implication out of pleadings, and which if
argued as a preliminarypoint may dispose ofthe suit.
Examples are an objection to the jurisdiction of the
court or piea of limitation... "[Emphasis added]
I have keenly read the Plaint as was filed by the Plaintiff herein and
found that he is suing the Defendant for having breached the lease
agreement. According to the Plaintiff, the Defendant became the trespasser
upon breach of the said lease agreement. Among the reliefs sought are for
declaration that the Defendant has breached the said lease agreement;
payment of rent arrears; payment of general damages; and eviction of the
defendant from the landed property.
It is obvious from the pleadings, the Plaint in particular that the matter
at hand emanates from breach of lease agreement. Leases are governed by
the Land Act [Cap.113 R.E 2019], specifically, under PART IX which covers
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sections 77 up to 110. Section 109 of the Act provides for various remedies
available to the lessor and lessee on breach of lease agreement. Some of
the reliefs include; damages, decree of specific performance, injunction and
payment of arrears of rent.
This being the matter that finds its cause of action from breach of lease
agreement, the value of the subject matter or the amount claimed is
immaterial in respect to the pecuniary jurisdiction of the court. I am holding
so because section 107 of the Land kcX^supra) only empowers a district
court to determine matters concerning breach of lease agreement
irrespective of the value of the subject matter. It provides thus: -
"107. -(1) An application for reliefmay be made to
district Court-
(a) in proceeding brought by the lessor
for an order of termination of the
lease;
(b) in proceeding brought for the
purpose by any of the persons
referred to subsection (2) before the
lessor commences a proceeding
mentioned in paragraph(a).
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(2) An application ofrelief against an order
of termination of a lease may be made by-
(a) the lessee;
(b) if two or more persons are entitled to
the lease as co-occupiers, by one or more
of them on their own behaif-
(c) a sublessee..."
The question that arises is whether this court is clothed with the
requisite jurisdiction to determine the matter at hand. It must be noted that
jurisdiction of a court is always a creature of statute. Parties cannot just
decide to give a court jurisdiction which it does not have to determine the
matter. In Shyam Thanki and Others versus New Palace Hotel [1971]
1 EA 199 at 202, the court emphatically observed that;
'M// the courts in Tanzania are created by statute
and their jurisdiction is purely statutory. It is
an elementary principle of law that parties cannot by
consent give a court jurisdiction which it does not
possess. "[Emphasis added]
In the light of the above statutory and case authorities, neither the
District Land and Housing Tribunal nor this Court are vested with jurisdiction
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to determine disputes on breach of leases. It is only the District Court
which has been given such jurisdiction.
From the foregoing, I find this court to have no jurisdiction to entertain
the instant matter. I do hereby proceed to strike out the entire suit with
costs. Order accordingly.
DATED at DAR ES this 1.6:' January 2025
JUDGE
