Land Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 9685 OF 2024 RICHARD KIMWAGA STIKA........................................ 1st PLAINTIFF JAPHET MATIKO........................................................... 2nd PLAINTIFF

VERSUS NCBA BANK TANZANIA LIMITED.................................................... 1stDEFENDANT BENS AGROSTAR COMPANY LIMITED............................................ 2ndDEFENDANT

NAMPULA AUCTION MART AND COMPANY LIMITED..........................................................................3rdDEFENDANT

RULING Date of last Order: 25/10/2024 Date of Ruling: 28/10/2024 LALTAI KA, J. This ruling concerns the Preliminary Objection (PO) raised by the 1st Defendant, NCBA BANK TANZANIA LIMITED, asserting that the present suit is barred by the doctrine of res judicata, pursuant to Section 9 of the Civil Procedure Code, Cap 33 R.E.

2019. The 1st Defendant claims the matter has already been determined in Land Case No. 258 of 2022, Mediation No. Page 1 of 7 55 of 2023, and Mediation No. 56 of 2023, rendering this suit incompetent and beyond this Court's jurisdiction. When this matter was called on for hearing on the 24th of October 2024, Mr. Simon Lyimo and Ms. Aziza Msangi, learned Advocates appeared for the 1st Plaintiff and the Defendants respectively. Both parties submitted arguments orally in support and opposition of the PO. The next part of this Ruling is a summary of such submissions followed by my analysis of the applicable law and the verdict. Ms. Msangi, learned Counsel for the Defendants, argued that the matter between the parties in the present suit had been conclusively adjudicated in prior mediation cases (Nos. 55 and 56 of 2023), before Hon. Judge Zainab G. Mango. She contended that the present suit meets the criteria for res judicata as the parties, subject matter, and claims were identical to those in the previous cases. According to her, the current matter offends Section 9 of the Civil Procedure Code, which establishes that a court ceases to have jurisdiction over a case once it is finally determined. Ms. Msangi relied on the Court of Appeal's decision in Maria Chrisostom Lwekamwa v. Placid Richard Lwekamwa and Another, Page 2 of 7 Civil Application No. 548/17 of 2029, where Korosso, JA,

stated that once a court has fully disposed of a case, it no longer holds jurisdiction over the matter. Consequently, Ms. Msangi prayed for the dismissal of the suit with costs. On the other hand, Mr. Lyimo, learned Counsel for the 1st Plaintiff, contended that the PO should be dismissed as it lacks merit. He argued that Section 9 of the Civil Procedure Code stipulates five cumulative conditions for a case to qualify as res judicata', (i) the matter in issue in both suits must be directly and substantially the same; (ii) the suits must involve the same parties or parties claiming under them; (iii) the parties in both suits must litigate under the same title; (iv) the court in the former suit must be competent; and (v) the matter in issue in the previous suit must have been heard and finally determined. Counsel cited Yohana Dismas Nyakibari and Another v. Lushoto Tea Co. Ltd and 2 Others, Civil Appeal No. 90 of 2008, to substantiate the application of these conditions in our jurisdiction as postulated by the apex » Court namely the Court of Appeal of Tanzanian. He asserted that three of the five conditions, specifically the 1st, 2nd, and 5th conditions, were not met in this case. Page 3 of 7 According to Mr. Lyimo, the parties in the current suit differed from those in the former suit, as shown in the Defendants' documentation. Additionally, he argued that the issues at stake in

the two suits were distinct. The previous mediation cases involved a claim for a permanent injunction against selling the mortgaged properties (Plot Nos. 204 and 206, Block B, Mikocheni Area, and Plot No. 393, Kunduchi A, Kinondoni Municipality), while the present suit challenges the lawfulness of the Defendants' advertisement and auctioning of the properties. For further support, Mr. Lyimo cited Camel Oil (T) Ltd v. Bahadela Co. Ltd., Miscellaneous Civil Application No. 568 of 2021, where Mgonya, J., (as she then was) held that subsequent applications could not be deemed res judicata if distinct matters were involved. Therefore, Mr. Lyimo argued, the suit was not res judicata and should proceed. In rejoinder, Ms. Msangi maintained that the parties in both suits were identical and that the terms of the mediation agreement addressed the Plaintiff's claims in the current suit. Having carefully reviewed the submissions of both parties, this Court must determine whether the present suit is barred by the principle of Page 4 of 7 res judicata as set out in Section 9 of the Civil Procedure Code. Section 9 enunciates five conditions that must be satisfied for a suit to be resjudicata. These conditions, as rightly noted by the Plaintiff's counsel, are cumulative and must all be met for a suit to be precluded under res judicata. From the facts and submissions presented, the Court finds

the following: Identity of Parties: The question of whether the parties in the present suit and the prior mediation cases are identical is central to the PO. Upon examining the records, it appears that while some parties overlap, they are not identical. The Defendants' submissions do not adequately demonstrate that the present Plaintiff and the Defendants in the former suit share the same legal status and roles in the dispute, as required by the doctrine of res judicata. Similarity of Issues: The issue in the former mediation cases was primarily focused on the Plaintiff seeking a permanent injunction against the sale of the mortgaged properties. The current matter, however, involves a claim challenging the legality of the Defendants' actions in advertising and auctioning the property. These issues, though related, are legally distinct. As Page 5 of 7 highlighted by the Plaintiff's counsel, the prior suit did not involve the advertisement or auction of the property. This differentiation is crucial, as res judicata requires the issues in both suits to be not only directly but also substantially the same. The Defendants have not satisfactorily demonstrated that the matters are identical. Final Determination by a Competent Court: While it is true that the previous mediation was resolved and a settlement was reached, the conditions surrounding the settlement differ significantly

from those in the current matter. The prior mediation did not address the issue of an advertised auction, which is central to the present case. Thus, the Defendants' reliance on res judicata in this context is misplaced. Considering the above, I find that the Defendants have not fulfilled the necessary conditions for res judicata to apply to the present matter. The matters in issue are distinguishable, and the requirements under Section 9 of the Civil Procedure Code are not satisfied. Accordingly, the Preliminary Objection raised by the Defendants is hereby overruled. The matter shall proceed to trial on its merits. I make no Page 6 of 7 orders as to costs at this stage. The main suit shall be called for mention on Friday November 15th, 2024, at 10:00 AM It is so ordered. .1. LALTAIKA

JUDGE */28/10/2024 Court Ruling delivered this 28th day of October 2024 in the presence of Mr. Simon Lyimo, Counsel for the 1st Plaintiff also holding brief for Ms. Aziza Msangi, Counsel for the 1st Respondent. E.I. LALTAIKA

JUDGE 28/10/2024 Page 7 of 7