Ruling on PO

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO LAND CASE NO. 19284 OF 2024 30HN ANGETILE MWANGUME (Suing as an administrator of the estate of the late NANCY SIMON MWAKIMI) PLAINTIFF VERSUS BANK OF AFRICA TANZANIA LIMITED.. 1^^ DEFENDANT NAIFU SALUM BALBOU 2"^ DEFENDANT MABUNDA AUCTION MART CO. LTD 3'"^ DEFENDANT GUDLUCK SOLOMON MW ASA 4^*" DEFENDANT REGISTRAR OF TITLE S'** DEFENDANT ATTORNEY GENERAL DEFENDANT RULING 08/11/2024 & 28/11/2025 KINYAKA,J.: In the present suit, the plaintiff claims against the defendants jointly, for ownership of land located at Mlimakola in Morogoro region situated on Plot No. 213, Block B, Mlimakola Area with Certificate of Title No. 55485. The plaintiff prayed for declaration that he is the owner of Plot No. 213, Block B, Mlimako; nullification of the sale agreement between the 3'^ defendant and the 4*^^ defendant; specific damages to the tune of TZS 20,000,000; general damages to the tune of TZ 10,000,000; in the alternative, the defendant be condemned to pay to the plaintiff TZS 1 ^ 300,000,000 being the current market value of the property in dispute; and costs of the suit. In his written statement of defence, the plaintiff vigorously opposed the plaintiff's claim. He raised a preliminary objection on a point of law that; to the extent that the plaintiffhad hied Land Application No. 295of2017 in the District Land and Housing Tribunal for Morogoro at Morogoro against the 1st, 2^, and J'' defendants on the same subject matter(suit property), to the extent that the said Land Application No. 295 of2017 was dismissed on ISP' February 2021, this Court has no jurisdiction to entertain this suit for being resjudicata contrary to section 9 ofthe Civii Procedure Code, Cap. 33 R.E. 2019' With the consensus of the plaintiff and the 1^ defendant, the Court ordered the preliminary objection to be argued by written submissions. The parties complied with the schedule for filing submissions. Addressing the Court in support of the preliminary objection, learned advocates Robert Lawrence Mosi and Godwin Nesphory Nyaisa for the I®' defendant commenced by citing the case of Barclays Bank (T) Ltd v. Tanzania Pharmaceuticals Industries Ltd and Others, Civil Application No. 23116 of 2019 where it was held that dismissal order is the same as the decision on merit and it bars similar action on the same 'ti— subject matter unless the dismissal order is set aside. Applying the above holding to the matter at hand, the counsels contended that both in the instant matter and in the former Land Application No. 295 of 2017 which was dismissed, the subject matter was the landed property described as Plot No 213, Block B, registered under Certificate of Title No. 554845. Justifying the preliminary objection, the two counsels submitted that res judicata is a pure point of law since the Court simply takes judicial notice of the earlier decision and does not amount to evaluation of evidence. They cited the case of Abia Estate Developers & Agency Limited v. CRDB Bank PLC, Civil Case No. 143 of 2021 to add weight to their assertion. They submitted further that the object of res judicata doctrine is to prevent multiple litigation by reinstitution of a previously decided matter between the same parties where the subject matter is the same. They were therefore of the view that adding another party to the present suit where the subject matter in dispute is the same, does not defeat the doctrine of resjudicata. They added that the Plaintiff is the one who is barred from reinstituting similar action on the same subject matter unless and until the dismissal order has been quashed or vacated either on appeal by this Court or on review by the trial Tribunal as held by Court of Appeal in the above cited decision of Barclays Bank(T) Ltd. They further cited the case of Zuberl Paul Msangi v. Mary Machui, Civil Appeal No. 316 of 2019 and argued that the instant matter fit in all four under the doctrine of resjudicata as the plaintiff had first filed Land Application No. 295 of 2017 in the District Land and Housing Tribunal for Morogoro at Morogoro against the first, second and third Defendants herein on the same subject matter and claiming for the same reliefs as in this matter. They reiterated that the said Land Application No. 295 of 2017 was dismissed by the trial Tribunal on 18"^ February 2021 for want of prosecution and therefore the plaintiff cannot come again before this Court on the same subject matter and same reliefs unless and until the dismissal order has been quashed or vacated either on appeal by this Court or on review by the trial Tribunal. On the strength of the above submissions, the learned counsels invited this Court to uphold the preliminary objection raised and proceed to dismiss this suit with costs for being resjudicata to Land Application No. 295 of 2017 and an abuse of Court process contrary to section 9 of the Civil Procedure Code, Cap. 33 R.E. 2022 hereinafter "the CPC". In reply. Advocate Daud Mkilya for the plaintiff started his submission by restating section 9 of the CPC relied on by the learned counsels for the 1^ defendant and contended that the parties in Land Application No. 295 of 2027 and parties in Land Case No. 1928 of 2024 pending in this Court are different entities and cannot be substituted. He added that the parties in the present case have never been in Land Application No. 295 of 2017 and thus to him, the contention by the defendant is an afterthought allegations with no foot to stand. He admitted that under section 9 of the CPC it is clear that the matter is supposed to be conclusively decided. He however contended that there has never been any decree or judgement attached hereto in respect to Land Application No. 295 of 2017, thus the matter was not conclusively decided. He submitted further that the prayers in Land Application No. 295 of 2017 and the prayers in this land case are different. He thus said that apart from the fact that parties are different but also the prayers in two land cases are different, the doctrine of resjudicata cannot apply. Mr. Mkilya articulated that the principle of resjudicata \s based upon three Latin maxims: interests reipubUcae utsit Htium, which means that it is the interest of the state that there should be an end to litigation. He was at one with the submission by the learned counsels for the 1^ defendant that the purpose of the doctrine is to provide finality to litigation and to protect parties from being vexed by the same matter twice. He insisted that in the present case parties in the former suit are different from parties in the present suit, thus It barred the applicability of the doctrine of resjudicata. In the end, he prayed for dismissal of the objection with costs. Having closely examined the submissions advanced by the learned counsels for the defendant and the counsel for the plaintiff, the main issue for determination is whether the raised point of preliminary objection is meritorious. As hinted earlier on above, the hub of contention between the parties is on the alleged impropriety of the case at hand for being resjudicata. As such, I am compelled to expound as to what the law provides of the doctrine. As rightly submitted by the learned counsels, the doctrine of res judicata is provided in our laws under section 9 of the CPC which reads: "No courtshaii try anysuitorissue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same titie in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided bysuch court."[Emphasis Added]. The provision above was well elucidated in the case of Michael Obiero V. Ager Ondiek Another, Civil Appeal No. 422 of 2022 [2024] TZCA 6 584(17 July 2024) where on page 10, the Court of Appeal articulated as follows: "Reading between the fines, section 9 of the Civil Procedure Code, provides for five pre-conditions which appear to be conjunctive. This means, aii pre-conditions indicated must be present before a suitor an issue is deemed resjudicata. Those pre conditions are; one, the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; two, the former suit must have been between the same parties or privies claiming under them; three, the parties must have litigated under the same tide in the formersuit;four, the court which decided the former suit must have been competent to try the subsequent suit; and five, the matter in issue must have been heard and finally decided in the former suit." On my scrutiny of the parties' pleadings and their respective submissions as well as the applicable laws, this point of objection need not detain me much. As correctly submitted by Mr. Mkilya, the parties to this case are quite different from the parties in Land Application No. 295 of 2017 before the trial tribunal, and neither were they privies claiming under them. What can be gleaned from the available records is that the litigants at the trial Tribunal were John Angetile Mwangume(as an administrator of the estate of the late Nancy Gagic) against Bank of Africa (T) Ltd, Eric Auction Mart & Court Broker, and Naif Salim Balhbou; while in the present case, the plaintiff John Angetiie Mwangume (as an administrator of the estate of the late Nancy Simon Mwakimi) is suing jointiy and severally the Bank of Africa (T) Ltd, Naifu Salum Baibou, Mabunda Action Mart Co. Ltd, Goodiuck Soiomon Mwasa, Registrar of Tities and the Attorney Generai. From my observation above, it is without doubt that the doctrine of res judicata cannot apply in the present matter to bar the Court's jurisdiction to try the matter at hand. Encountered by a similar situation, the Court of Appeai deiiberated on page 11 of its decision in the case of Michael Obiero v. Ager Ondiek and Another, Civil Appeal No. 422 of 2022 [2024] TZCA 584 (17 July 2024): "In the instant appeal, having gone through the record ofthis appeai, we find the appellant's argument that the DLHT was barred to determine the matter subject to this appeal is not supported by the iaw. The reason for ourfinding is verysimple and straight forward, that parties in the previous Application No. 31/2013 were Michael Obiero as the Applicant and Umoja Wakuiima Chereche Rorya being the respondent, while in Application No. 2/2020 which is the subject to this appeal, the litigants were; Michael Obiero (Administrator of the estate of the iate Obiero Okinyi) as the applicant and the respondents were Ager Ondiek and Odira Obaye. Therefore, it does not need a third eye to ascertain that parties in the former and subsequentsuit are not the same." ^ In the present matter, the learned counsels for the defendant contended that the parties were the same but only that there were addition of the parties in present suit while the subject matter in dispute is the same, and thus the same defeat the doctrine of resjudicata. In my view, their contention is unmerited. As the parties in the two cases were not the same as highlighted hereinr above, the doctrine of resjudicata cannot be invoked to defeat the instant suit. I have also considered the learned counsels' argument that the plaintiff was supposed to apply for restoration of Land Application No. 295 of 2017 which was dismissed for want of prosecution arguing that the dismissal order is the same as the decision on merit and it bars similar action on the same subject matter unless the dismissal order is set aside. While I agree that the remedy for a suit that has been dismissed for want of prosecution is applying for a restoration order at the court that issued the said order, I find the learned counsels' argument inapplicable in the circumstances of the present matter. In my understanding, the proposed route by the learned counsels could be taken in a bid to restore Land Application No. 295 of 2017 between the same parties in the application. It follows that as there was no land application instituted and dismissed for want of prosecution before the trial tribunal between the parties to the present suit, an application for setting aside the dismissal order cannot be 9 deemed appropriate under the circumstance. Again, I find the doctrine of resjudicata cannot apply in the circumstance of the present suit in which the trial Tribunal would have no jurisdiction to entertain a matter where the Attorney General is a party. Section 7 of the Government Proceedings Act Cap. 5 R.E. 2019 bars civil proceedings against the government to be instituted in any court other than the High Court. Before I rest my determination of the preliminary objection, I also wish to comment on the contention by the learned counsels for the 1^ defendant that Land Application No. 295 of 2017 was determined on its merit following the dismissal order by the trial Tribunal. In my fortified view, although a dismissal order for want of prosecution bars institution of a fresh suit, I do not find the suit before this Court a fresh suit within the meaning of Order IX Rule 6(1) of the CPC. As held above, the present suit has been lodged at this Court, involving different parties in which the trial Tribunal would not have jurisdiction to entertain the same. In view of my above analysis, I am satisfied that the preliminary objection lacks merit. Consequently, I hereby overrule the same with costs. The present suit shall proceed on merit. It is so ordered. 10 The preliminary objection being on a point of law that touches the jurisdiction of this Court to entertain the present suit, the right of appeal has been fully explained to the parties. DATED at MOROGORO this 28^^ day of April 2024. H. A. KINYAKA a/ A JUDGE 28/08/2024 11