l@
IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM
CHARLES
MUSAMA
THE CHAIRMAN
Mr. Jasson,
NYIRABU
PLAINTIFF
VERSUS
(DSM) CITY COMMISSION
Advocate,
for 1st Defendant
Advocate,
for 2nd and 3rd Defendants,
objection
that where
the dispute
High Court has no jurisdiction
of the Land Ordinance,
(unreported
with jurisdiction
District
Magistrate,
Court instead
competent
a registered
as the same is ousted by S. 22(2)
(HC) Civil Appeal
No. 39
they insisted that the only court
is the District
Court manned by a
and also that filing the matter
of the District
to hear it violates
As to how the parties
land the
& 2 Others vs C. M. Mundeba and another
- Dsm Registry)
bestowed
and Mr. Ngalo,
have raised a preliminary
concerns
Cap 113; citing
of 1992, Dsm City Council
& OTHERS ....DEFENDANT
Court which
in the High
is the lowest court
S. 13 of the Civil Procedure
came to find themselves
within
Code.
the
gates of this court the story goes as under.
Way back 1992\93
the plaintiff
bought a piece of unsurveyed
land ln Msasani
area, Kinondoni
Terezia
By 1997 the whole of what was known as 'Msasani
Cosmas.
Bonde la Mpunga'
District,
or Butiama village
land as well) was surveyed
Dar es Salaam,
(which covered plaintiff's
by the City Commission
The plaintiff's
(1st Defend!nt)
and divided
into plots.
three plot~
- Nos. 866, 867 and 868. The 1st Defendant
1
from
land was divided
into
proceeded
to allocate
the plots which process earned for plaintiff
plot No. 868 while plots No. 866 and 867 were allocated
and 3rd Defendants
by plaintiff
contrary
to wishes and expressed
by this act of allocating
expectations
what he believes
be his land to people who were not in possession
brought
defendants,
to 2nd
that they should all, the three plots, be allocated
to him. Embittered
plaintiff
only
the present
action, claiming
thereof
against
to
the
the
for, among others,
"(i) a declaration
plaintiff
that plot 866 and 867 belongs
as a single piece together
(ii) the allocation
(iii) allocations
with plot 868.
to 2nd and 3rd Defendants
~66 and 867 be declared
the structures
of plots
null and void
to 2nd and 3rd Defendants
and plots concerned
to the
be allocated
be revoked
to plaintiff,
and
already put up by 2nd and 3rd Defendant
be pulled down.
(iv) In the alternative,
specific
with
and general damages
as general
from the usual denial
written
statement
circumstances:
above indicated
Mr. Nyanduga,
preliminary
Advocate,
contained
(whose details,
are unnecessary)
the defendants
objections
appeared
(b) Tshs.
damages.
of liability
of defences
by way of
(a) Tshs. 1.5 million
35% interest p.a. since 1992\93,
20,000,000/=
Apart
be paid compensation
in their
in the
also raised the
hence the present
for the plaintiff,
ruling.
Mr Jasson,
Advocate
for the 1st Defendant
appeared
for 2nd and 3rd Defendants.
During
briefly
submissions,
reiterated
adding however
while Mr. Ngalo, Advo~ate,
Mr. Jasson and Mr. Ngalo advocates
what they consider
that the sum of over 20m Tshs is just speculative,
while Mr. Nyanduga
strenuously
wriggled
saying that as much as he concedes
113 as supporting
claim for damages
because,
contained
calling,
125-7) a commentary
of s. 22 (2) Cap
the District
enunciated
jurisdiction,
claim which
Enough
thereunder
Mulla, On Civil Procedure,
on s. 15 of the Indian code
that the
does not go to the roots of the
the jurisdiction
for the facts and arguments,
s.22(2) of the Land Ordinance,
the
Court. As to section
and that it is the plaintiff's
determines
is a
shillings,
is in pari materia with our s. 13 CPC, insisted
principle
Court would
in the plaint
limit of a District
13 of the CPC, Mr. Nyanduga
which
the contents
for the sum of over 12 million
jurisdictional
(13th Ed. pages
to go around them by
the broader objection,
not have jurisdiction,
maximum
to be the two legal points,
evaluation
of his
of the court.
what does the law say?
cap 113, provides,
"All claims (other than claims against the government)
arising under the provisions of this ordinance in respect
of any rights acquired under a right of occupancy in
respect of land situate within the jurisdiction of a
district court, presided over by a District Magistrate,
shall be prosecuted before such court, and no appeal shall
lie from the decision of such court.
Provided that the President may, if he thinks fit, transfer·
any such case at any stage of the proceedings to the high
Court, or order a retrial by the High Court"
" Every suit shall be instituted the court of the
grade co~~etent to try it. For the purposes of
section a court of a resident Magistrate and a
court shall be deemed to be courts of the same
lowest
this
district
grade".
From the clear provisions
of the law quoted
see how Mr. Nyandunga's
endervours
preliminary
The wording
objections.
Ordinance,
above I can not
can assail the defendant's
in S. 22(2) of the Land
Cap 113 is very clear. The only exceptions
are those where
the government
under the proviso
fit, transfers
exceptions
it makes
is made also a defendant,
to the section,
the proceedings
the President,
or where
if he thinks
to the High Court. None of the
can be invoked here as they don't exist. As regards,
Mr. Nyanduga's
argument
that so longer as the claim involves
above the jurisdictional
sums
limit (12 million TSHS) the matter
should be filed in the High Court, with respect,
that can not be
bought by this court let alone any court. As. I said, the
provisions
of s.22(2)
to hold otherwise,
do, would
and in the way Mr. Nyanduga
be tantamount
interpreting
crossing
Cap, 113, are so express
to interpolating
acquired
sums involved,
of the
is involved
or subsequent
court
to filing, the
it.
to s.13 CPC, with respect to Mr. Ngalo and Jasson,
if the provisions
13 CPC would
Nyanduga,
regardless
of
the said claim must be filed in the District
transfers
Turning
So longer as
of cap 113 in respect
under a right of occupancy,
the government
President
and not
to do: in the process
over into the domain of the legislature.
any rights
that
would want us to
this provision
the law as courts are supposed
the claim arises under the provisions
unless
and direct,
of s.22 (2) of cap 113, did not apply,
not have aided them. As rightly
it is the plaintiff
of his claim.
submitted
who sets the pecuniary
It is him who knows what he claims.
then s.
by Mr.
jurisdiction
Until
it is
argued the exact amount that would be awarded by the court would
be unknown.
jurisdiction
provision
maximum
At the same however
s. 13 CPC does not oust the
of a hiaher court: anv one who aoes counter
would
-
#
be committing
one can be blamed
-
an irregulariy
for. As commented
-
to that
but that is the
by the learned
Author,
Mulla,
on a similar provision,
and called to his aid by
Mr. Nyanduga,
"The section is a rule of procedure, not of jurisdiction,
and whilst it lays down that a suit shall be instituted
the Court of the lowest grade, it does not oust the
jurisdiction of the courts of higher grades which they
possess under the Acts constituting them".
The purpose
behind
suits which
could easily be disposed
normal
situations,
would be ordered
courts. However
proceeds
is to avoid over-crowding
cases involving
of by lower courts.
less than 12 million
and not lacking
want us to believe.
the alternative.
District
claim is above 12 million,
Tshs,
for
An alternative
It is equally a main claim only that it is in
The question
whether
it is speculative
or cannot
and in any case that would
had been heard. That said however,
22(2) of Cap. 113 ousts pecuniary
jurisdiction:
is not caught up in the two exceptions
so longer
above a
Court can hear any case involving any amount.
On the whole,
1992, referred
as was observed
to above,
lacks jurisdiction
Following
in Civil Appeal
and as already discussed,
No. 39 of
this court
in terms of s. 22 (2) of the Land Ordinance,
cap 113, thus the preliminary
arguing
problem would not have arisen,
would depend on evidence,
as the matter
of s.
claim as Mr. Jasson and Ngalo would
be after the whole matter
section
for the provisions
Court has no jurisdiction.
claim is not an ancillary
an
jurisdiction.
the alternative
the District
be granted
Tshs.
if the said High Court does not do so and
22(2) of Cap. 113, the discussed
for, clearly
In
by the High Court to be tried by subordinate
In the case at hand, if it weren't
which
higher Courts with
to hear it it can only be accused of committing
irregularity
in
prayers
the appliration:
objection
on groundfone
made by Mr. Nyanduga,
it
is hereby ordered
Advocate,
is upheld.
while
in terms of Order
VII, Rule 10 of the Civil Procedure
returned
to him for presentation
and shall accordingly
be endorsed
Code that the plaint
to the Kinondoni
District
as per requirements
order of the CPC.
(L. B. Kalegeya)
JUDGE
(L. B. Kalegeya)
JUDGE
be
Court,
of that