Abiely Andrea Magobora vs National Microfinance Bank Plc & Others (Civil Appeal No. 664 of 2024) [2025] TZCA 1220 (27 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA f COR AM: KEREFU. J.A.. MDEMU. 3.A. And MANSOOR, J.A.) CIVIL APPEAL NO. 664 OF 2024 ABIELY ANDREA MAGOBORA ....................................................... APPELLANT VERSUS NATIONAL MICROFINANCE BANK PLC...... .......................... 1 st RESPONDENT RELIANCE INSUARANCE CO. LTD ................................ ...... 2 nd RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Tabora) fKadilu, J/) dated the 31st day of May, 2023 in Land Appeal No. 30 of 2021 JUDGMENT OF THE COURT A 5th & 27th November, 2025 MDEMU. J.A.: This second appeal originates from the District Land and Housing Tribunal for Tabora (the DLHT) where the appellant commenced a dispute against the two respondents for an order of indemnity. This followed a loss of the appellant's properties in a retail shop due to theft. The story begins this way; the appellant approached the 1st respondent for a loan facility of TZS 22,177,579.00 in order to operate a retail shop. It was fruitful and as a condition for the issuance of the loan facility, a house located in Plot No. 60 Block-Majengo ya Kaliua, in the name of the appellant, was mortgaged as a security thereof. The appellant was also advised by the 1st respondent to process an insurance cover in the events of robbery, burglary and fire for the shop business. On the other hand, the respondent in their joint written statement of defence denied liability on account that, the loan facility advanced to the appellant was not an insurance policy which would indemnify the appellant for damages arising out of fire, robbery and or theft. The DLHT heard the parties and finally, dismissed the appellant's claim holding that, the appellant and the 1st respondent never executed any insurance contract in their contractual relations. Theirs, according to the DLHT judgment, was a loan facility which the appellant had defaulted on, and eventually, was ordered to discharge that contractual obligation. Following that unhappiness, the appellant appealed against that decision to the High Court which, nonetheless, affirmed the decision of the DLHT and this time, the appellant was given a timeline of 60 days within which to pay the loan, else, the respondent was at liberty to auction the mortgage for the recovery of the loan facility. The appellant was yet uncontented. He thus filed the instant appeal premised on the following two grounds: 2 1. That, on account o f evidence on record, the learned Judge m isdirected herself both in law and in fact by ignoring the appellant's claim for compensation for loss he incurred while he had paid for insurance. 2. That, the learned Judge erred in law and facts by holding the appellant to pay the loan to the 1st respondent without considering the breach done by the respondents herein above. Before the parties were heard on the above grounds of appeal, suo motu, we raised and invited the counsel present to submit as to whether the DLHT was clothed with jurisdiction to adjudicate disputes arising from insurance contracts. We came to that observation because, looking at paragraphs 6 (v), (viii), (ix), (x), (xiii) of the pleadings and the reliefs claimed for in paragraph 7, the claim seemed to base on matters of insurance. As a revelation, the relevant paragraphs in the amended application to the DLHT are reproduced as hereunder: "v. That, in the credit facility, th e a p p lica n t w as ad vise d to p ro cess insuran ce co ve r o f h is b u sin ess a g a in st robbery, fire an d b u rg la ry and he did so in order to secure his business. In fa ct, the 1st respondent p rocessed th e sa id in su ran ce cover from th e 2nd respondent. 3 viii. That, on 12/10/2014 the fire accident occurred during the night at Urambo Market where the applicant run his business. When the applicant went to the said market, he found his shop and store broken and some goods were stolen. ix. That, after the occurrence o f the said accident, th e a p p lica n t re p o rte d to the p o lic e sta tio n an d o ffice o f the Com m anding D is tric t an d through in v e stig a tio n , w as sa tis fie d th a t the a p p lica n t su ffe re d fire and b u rg la ry p rob lem s w hich o ccu rred a t Uram bo M a rke t w here the a p p lica n t ru n s h is business. xi. That, the applicant tried his best to make follow up so that the respondents co u ld p a y him in su ran ce fo r b u rg la ry because the agreem ent he en tered w ith 1st respond ent in clu d e s in su ran ce cover. xiii. That, the goods stolen on that day amounted to the purchase price (manunuzi) o f Tshs. 25,050,000/= which was to be sold at 30,000,000/= so, the actual loss occasioned was Tshs.30 m illion hence the subject o f the claim for compensation by the respondents. 7. Relief(s) claimed: The applicant prays fo r the judgm ent and decree as follows: (1) Paym ent o f Tshs. 30 m illio n b y the respondents a s in su ran ce co ve r to the goods sto le n in th e shop d u rin g th e fire and b u rg la ry o u tb re a k." [emphasis supplied] 4 The first counsel to submit was Mr. Cheapson Luponeja Kidumage, learned advocate who was holding the brief of Ms. Flavia Francis, learned advocate for the appellant, with instructions to proceed in arguing the appeal. He was brief and direct to the point that, according to the pleadings, the appellant prayed for compensation of properties stolen in his retail shop which, in the circumstances of this dispute, cannot be remedied by the DLHT which is clothed with jurisdiction on land and other matters ancillary to land. He thus invited us to use our revisional powers under section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) to nullify the proceedings, the resultant judgment and orders of the DLHT and thereafter subsequent proceedings, judgment and related orders of the High Court which entertained the appeal. However, Mr. Cheapson argued that, costs be waived because, the appellant initially filed a suit in the High Court on the same claims giving rise to the instant appeal but was ordered by the High Court to file the said claims in the DLHT. On the part of the 1st respondent, Mr. Phares Marengo, learned advocate came up with the following legal arguments regarding the jurisdiction of the DLHT; first, is in respect of the recovery of possession of immovable property under section 36 of the Land Disputes 5 Courts Act, Cap. 216 (the Land Courts Act). Second, disputes involving existence or effect of an easement and public right of way in terms of section 167 (1) of the Land Act, Cap. 113 (the Land Act). Third, disputes concerning leases and mortgages under parts IX and X of the Land Act respectively. In the three jurisdictional categories of the DLHT as argued by Mr. Marengo, matters relating to indemnity under the insurance laws are not covered. He ended by imploring us to nullify all what transpired in the two courts below. As to costs, Mr. Marengo left the matter in the Court's discretionary mandate. On his part, Mr. Ditrick Mwesiga, learned advocate who also had the brief of Mr. Dickson Sanga, learned advocate for the 2n d respondent with instruction to proceed, joined hands with Messrs. Cheapson and Marengo that, the suit which was filed and subsequently entertained by the DLHT was in respect of insurance matters of which, it lacked the requisite jurisdiction. As was to other counsel, he equally invited us to nullify the proceedings of the two courts below while declining to press for costs. From what the counsel have submitted, and looking at the pleadings and the entire record of appeal before us, we note that, the appellant secured a loan facility from the 1st respondent for him to trade 6 in a retail shop. In order to secure the said loan, he had to mortgage Plot No. 60, Block-Majengo ya Kaliua. We note further that, under clause 3 of the loan agreement (exhibit PI), the appellant maintained an insurance cover for the loan. The unsettled question which calls for our determination is whether the DLHT was clothed with the requisite jurisdiction to adjudicate claims of the appellant arising from the loss of properties stolen in the retail shop. In determining whether or not a court has jurisdiction, pleaded facts and reliefs prayed for in the pleadings, are matters to take into consideration in order to determine the powers of the court to adjudicate and grant the reliefs prayed for. Responding to the raised issue and basing on the facts and reliefs prayed for, as we reproduced above, we do not hesitate to respond in the negative. We shall explain shortly. In the reliefs prayed for as quoted above, the appellant prayed to be indemnified for the loss of his properties due to theft committed in the retail shop. Whether or not there was an insurance cover and if the same is in coherence or covers the losses in the retail shop, the DLHT is alien to those matters. We are saying so because, in terms of the law, a claim of indemnity is not related to any claims of possession of 7 immovable property, leases, mortgages, right of easement or a right of public way judiciable within the purview of land courts whose jurisdiction is stipulated under section 167 of the Land Act and section 36 of the Land Courts Act. To begin with, the latter clearly provides that: "36 (1) The D istrict Land and Housing Tribunal shaii have and exercise originaljurisdiction- (a) in a ll proceedings under the Land Act, the Village Land Act, the Customary Leaseholds (Enfranchisement) A ct and the Regulation o f Land Tenure (Established Villages) Act; and (b) in a ll such other proceedings relating to land under any written law in respect o f which jurisdiction is conferred on a D istrict Land and Housing Tribunal by any such law, (2) The jurisdiction conferred under subsection (1) shall be lim ited - (a) in proceedings for the recovery o f possession o f immovable property, to proceedings in which the value o f the property does not exceed three hundred m illion shillings; and (b) in other proceedings where the subject m atter is capable o f being estimated at a money value, to proceedings in which the 8 value o f the subject m atter does not exceed two hundred m illion shillings. (3) The D istrict Land and Housing Tribunal shall have powers to execute its own orders and decrees. Provided that, the pecuniary jurisdiction o f the tribunal shall be unlim ited in proceedings under the Customary Leaseholds (Enfranchisement) A ct and the Regulation o f Land Tenure (Established Villages) A ct." As to the former, that is, the Land Act, section 167 is phrased in this way, that: U A Court may, in determining any question or dispute concerning the existence or effect o f an easement or an analogous right or a public right o f way, make an order on any conditions which it thinks fit on a ll or any o f the following matters This is what the law is all about regarding jurisdiction of land courts. On the Court's side, in the case of Bagamoyo District Council v. A/S NOREMCO Construction & Another (Civil Appeal No. 106 of 2008) [2009] TZCA 31 (23 July 2009; TanzLII) an objection was raised such that, the High Court (Land Division) had no jurisdiction to 9 adjudicate outstanding council levy on hard rock and gravel due excavation at Bagamoyo District. The Court held that: "We have seen that the High Court (Land Division) is only ciothed with exclusive jurisdiction over land matters. The qu estion we a sk o u rse lve s is w hether a cla im fo r an o utstan d in g le v y is a d isp u te o r co m p la in t con cernin g land. In view o f th e above d iscu ssio n , the an sw er is an em ph atic no. The subject m atter o f the dispute (iis contestation) has nothing to do with iand. It follows, therefore ; that the High Court (Land Division) had no jurisdiction to adjudicate the dispute. We agree with Mr. Nyika that the High Court (Land Division) had no jurisdiction to deal with levy matters. His objection has m erits ." [emphasis supplied] We note that in Bagamoyo District Council (supra), the contentious matter was on council levy. What is before us is insurance matters. Be it council levy or insurance, both are not land disputes. The principle is thus applicable. Discussing further on the issue of jurisdiction of land courts, the Court in Olam Tanzania Limited & Three Others v. Selemani S. Selemani & Four Others (Consolidated Civil Revision 10 Nos. 2,3,4,5 & 6 of 2010) [2010] TZCA 404 (11 October 2010; TanzLII) made the following observation: "We have no doubt in our minds that the iand tribunais were specially created for, among others, the purpose o f a speedy adjudication o f iand disputes, to the exclusion o f the ordinary courts created under the M agistrates' Courts Acts (Cap. 11 R.E. 2002). So, we shall tread carefully while reviewing the statutes conferring jurisdiction on the said tribunais." Gauging from the excerpt above and looking at the provisions of the law, and taking into account the nature of the claim, that is, indemnification of properties that went missing at the retail shop due to theft which was instituted in the DLHT, it is our holding that, the DLHT for Tabora lacked jurisdiction to entertain an insurance dispute. On that note, in the exercise of revision jurisdiction of the Court in terms of section 6 (2) of AJA, we proceed to nullify proceedings, judgment and orders of the DLHT for want of jurisdiction and further, that of the High Court on appeal for being premised on a nullity proceedings. For the interest of Justice, a party who is interested to pursue this matter, may file a fresh suit in a competent court and in accordance with the dictates of the law. In the circumstances, a need to deliberate on the grounds of appeal before us is no longer a pressing one. As the jurisdiction issue was raised by the Court suo motu, we order parties to the appeal each to bear own costs. DATED at DODOMA this 25th day of November, 2025. R. J. KEREFU JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered virtually this 27th day of November, 2025 in the presence of Ms. Fravia Francis, learned counsel for the Appellant, Mr. Pharles Malengo, learned counsel for the 1st Respondent who also hold brief of Mr. Dickson Sanga for the 2n d Respondent and Mr. Leopard Mabugo, Court Clerk; is hereby certified asa tr\& copy of the original. E. G. MRANGLK " SENIOR DEPUTY REGISTRAR COURT OF APPEAL 12