Haidari Mohamed vs Sheikh Fakh Chuma (Civil Appeal No 28 of 1984) [1988] TZHC 79 (29 July 1988)

IN THE HIGH COURT QF T •\NZANIA ATAS DAR ES SLAM CIVIL APPE,'.\L NO. 213 OF 1984 (ORIGINAL KISUTU R. Mo CIV., CASE NO. 177 OF 1982) HAIDARI MOHAMED •••••••••••••••••• APPELLANT versus SHEIKH FAKH CHUMA •••••••••••••••RESJONDENT J _U D GEM ENT MAINA, J. The responrl.ent, Sheikh Fakh Chuma,. sued the aonellant, Haidari Mohamed, in the court of Resident Magistrate at Kisutu, Dar es Salaam for a piece of land situate~ in Mafia District. There.was also a claim for mesne nrofits at the rate of Shs:100/= per month. The Resirient Maqistrate.held that the l=,nd in dispute belongs to the respondent but declined to award mesne profits. This appeal is against the trial ma1istraters decision that the respondent is the lawful owner of that niece of land. The first ground of appeal is that the Court of Resident Magistrate had no jurisdiction to entertain the suit. Mr.- Mchora submitted at the hearing of this anpeal that as the land is situated in Mafi~ District the case should have been filed in the District Court at Mafia. He cited section 63 of the Magistrates Court Act which gives concurrent jurisdiction to both the District Court and Court of Resident Magistrate. I think I should dispose of this by stating that both the :Jistrict Court and Court of Resident Magistrate could have jurisdiction if the land was registered under the Land Ordinance. The proviso to section 63 excludes jurisdiction of Primary Courts in cases involving l-:1nd "held on a Government lease or a right of occu;;->ancy ·granted under the Land Ordinance 11 • The section does not provide that such cases should start in the District Courto The Court of Resident Magistr::ite has jurisdition in the whole reg.ion anrt there is no disute that the Court of j - Resident Magistrate in Dar es Salaam had jurisdiction over'Mafia Districta Assuming that the land in dispute was held on a right of occuancy granted under the Land Ordinance, then, in my view, the res•:-iondent quite oro:,erly filed the case in the Court of: Resident Magistrate at Kisutu. . . /2.

2 What I have now to consider is whether the l3nd was really held on Government lease or on a right of occupancy under the Land Ordinance a This is important for the purDose of rl.ecid in9 which Court had jurisdiction in view of section 63 of the Magistrates' . I Courts Act, and the revise which states in art as follows:- ".a o o o o o o o o O o o o o o o ••• o ••• <ft no Civil nroceedings i·n res 1 Ject of immovable prorerties other than larid helri orf a Government lease or a right of occupancy under the Land Ordirianc@ ••·•· •••••••• a •••••• shall be commenced in any court other· than a Primary Court unless the Reputlic is a oarty thereto or unless the Hiqh Court gives leave for such Droceedings to '::le commenced in some other Court''. It is, therefore, mandatory that a suit for rc~~er of lnd' which is not registered untier the L::i.n,i Ordinance must commence ih•a Primary Court except where the Government is a·;jarty or or whet:e leave had been granted by the High Court for the u suit to commence in another Court a Now, in the r,resent case, was the 1::ind helrl under a right of occupancy? If the answer is in the affirmative then it I was proper to file the case in the Court of Resident Magistrate. If, on the other hand, there was no right of occuancy in existance, then the suit should have commenced in the 2rimary Court. I have perused the recorrl of the lower Court very carefully. No title deed was annexed .to the plaint and no evidence was adduced to esta~lish that the ·land was held on a right of occupancy under the Land Ordinance. What was anqexed to the laint was a survey m3p and an agreement of sale showing that the resp•:>ndent h-3.d ::,urchased a Shamba from one Mohamed Hashim Ibrahim. This being the position, it cannot be said that the lanct was held "on a Government lease or a right of occupancy under the Lanri Oniinahce". The Court ,:if :Resident Magistrate hed, therefore, no jurisrliction and the suit should have commenced in the Primary Court. No leave h:1.d been granted l)y the Hi 1h C')urt for the suit to ½e filed in the Resident Magistrate's Court. For the a 1 )ove reasons, the proceerlinqs in the Court of esident M:1.gistrate were a nullity and they are quashed. I do not find it necessary to consider the other grounds of aore3.l, for examr,le, on judi_, because whatever I s:1.y on that will prejudice the Court which will retry the c3.se. • •• I 3 ~

' ! . ·· - i I,.!·! .. "t. 7Jt - ~.t: ·,i 3 This appeal is therefore allowed with costs. The proceerlings of the lower Court are quashed ann any one of the rarties may file a fresh suit in the Primary Court of competent jurisrtiction. DAR ES SAL1\AM 29th July, 19811 Mchora for the Appellant Mchora for Mwajasho for the Respondent. ' l..ov: "'-.OV W. Jo MAINAi JUDGE.