CONSOLIDATED LAND CASE NO

TANZANIA JUDICIARY

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT DAR ES SALAAM CONSOLIDATED LAND CASE NO. 11282 of2024AND M1SC. LAND APPLICATION NO. 12731 OF 2024 TANZANIA POSTS CORPORATION...................... 1st PLAINTIFF/APPLICANT ATTORNEY GENERAL............................................ 2nd PLAINTIFFF/APPLICANT

VERSUS BIBUDOBE COMPANY LIMITED........................ Ist DEFENDANT/ RESPONDENT ALFA ESTATE LIMITED....................................... 2nd DEFENDANT/RESPONDENT

RULING 19/09/2024 & 10/10/2024 GWAE, J. The Applicants herein filed the lawsuit and application against the defendants/respondents. Upon service of copies of the suit and application, the respondents refuted the same by filing their respective written statement of defence and sworn counter affidavit. Both WSD and counter affidavit are accompanied by Notices of preliminary objection in both matters. In essence the preliminary objection so raised reads;- i "The Court tacks the requisite jurisdiction for, both suit and application were withdrawn without leave to re-file Thus in contravention of Order XXIII Rule 1 (3) of the Civil Procedure Code, Cap 33, Revised Edition, 2019 (CPC)." As the law requires, disposition of a preliminary objection based on a pure point of law, to be determined first before embarking into determining the main case or application, this court is thus bound to determine the 1st applicant/respondent's PO. By doing so, it may not only prevent wastage of precious time and resources that are available in our courts but also that of the disputants. The basis or foundation of the preliminary objection canvassed by the defendants/respondent is the withdrawal order made by the Court (Mziray, J as he then was) vide Land Case No. 346 of 2014 on 2nd day of December 2014. Before this Court Mr. Ayoub Gervas Sanga, the learned state attorney represented both

plaintiffs/applicants whereas Mr. Mutakyamirwa Philemon, the learned advocate represented the 1st defendant/respondent whereas the 2 2ndapplicant/respondent did not enter appearance. Nevertheless, the hearing of the PO proceeded by way of written submission. It is the submission of the 1st respondent's counsel in support of the PO that, the plaintiffs/applicants are precluded from instituting a fresh suit/ application as the former suit/application were withdrawn without leave to refile. To buttress his submission, the learned counsel for the 1st /defendant respondent cited the provisions of Order XXIII Rule 1 of the Civil Procedure Code (supra) and judicial precedents notably; Peoples Bank of Zanzibar vs. Naushad Mohamed Suleiman (1990) TLR 269 and Equity for Tanzania Limited (EFTA) vs. Salim Kasimu Msangi, Civil Appeal No. 21 of 2022 (unreported-H.C). On their response to the submission, the applicants' counsel argued that, the matters before the court are proper, as they are not precluded from lodging them since dispute complained of is a new cause of action different from the one in the former case (Land Case No. 346 of 2014). He further argued that, the present matters before the Court are not directly and substantially in issue with the former ones. The learned state attorney then urged the Court to refer to the case of John M. Byombalirwa vs. Maritime Internationale

(Tanzania) Limited (1983) TLR 1 where the 3 plaint was said to be capable of disclosing cause of action as in the present matters. In his rejoinder, Mr. Mutakyamirwa stated that, since it is undisputed fact that, the plaintiffs' former matters were plainly withdrawn without leave, therefore both suit and application succumbed to natural deaths since in the former matter/ Land Case, the Court was invited to declaratory order that, the plaintiffs are the lawful owners of the suit land. Now to the Court's determination of the PO raised by the respondent's counsel on whether the institutions of the plaintiffs' plaint and application are precluded by the law under Order XXVIII Rule 1 (3) of the CPC. I have closely examined the parties' submissions for and against suit and application and observed that, there is no order of the Court withdrawing the applicants' former application. Hence, the withdrawal order of the former application is by necessary insinuation following withdrawal of the former suit, Land Case No. 346 of 2014. In the said Land Case the Court (Mziray J as he then was) where the 1st applicant sued 1st respondent as the 3rd defendant and others not parties to these proceedings namely; Said Balozi and 8 others, M/S Alfa Estate Limited and Rhino Auction Mart Company Ltd. In that former matter, the Court ordered as herein under:- 4 "Upon application by the learned counsel

for the plaintiff, the suit is withdrawn with costs under the provisions of Order XXIII Rule 1 of the Civil Procedure Code. In order to be safer in determining the 1st respondent's PO, it is perhaps apposite to have provisions of Order XXIII Rule 1 of the CPC reproduced herein under;- "1 (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the court is satisfied- fa) that a suit must fail by reason of some formal defect; or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the court may award and shall be precluded from 5 instituting any fresh suit in respect ofsuch subject matter or such part ofthe claim". (Emphasis supplied) The above quoted provisions of the law clearly entail, that if the plaintiff or applicant withdraws his suit or application or abandons part of the

same without permission of the court as envisaged under Rule 1(2), he shall be prohibited from filing a fresh matter pertaining the same subject matter against the same parties Indeed, there was no leave granted after the plaintiffs had sought and obtained the withdrawal order. Thus in ordinary sense, the applicants are precluded from instituting the same parties, same matters over the same cause of action. Henceforth, the withdrawal of the plaintiffs'former land case without leave, which may be termed as absolute withdrawal as opposed to unqualified withdrawal. However, the Court cannot easily be persuaded by the submission by the 1st defendant's counsel that, the plaintiffs/ applicants are precluded form instituting these matter unless the parties or their privies are the same and the subject matter as well as cause of action are the same. The essence of Order XXIII Rule 1 (3) of the CPC has been interpreted by our court for 6 example in Equity for Tanzania Limited (EFTA) vs Salimu Kasimu Msangi (Civil Appeal No. 21 of 2022) [2023] 7ZHC 18034 (12 June 2023) " Therefore, since the appellant never pleaded and granted leave to refile, she is precluded under Order xxiii Rule 1 (3) (supra) from bringing a fresh appeal. Also, this Court in Jennings-Bramly vs. A and F Contractors Ltd and another [2003] 2 EA 452 held; "Rule 1(3) puts it in very certain terms - where plaintiff

so withdraws "without the permission referred to in sub-rule 2" (leave to institute a fresh suit), he shall among others, "be precluded from instituting any fresh suit in respect of such subject matter or suit or such part of a claim." Examining paragraphs 4, 5, 6, 7,8 9,10 and 11 of the plaintiffs' plaint is for trespass and claim of ownership over the suit property described as Plot No. 73 situate at Guinea Road Oysterbay Kinondoni, Dar es salaam allegedly leased by the 1st defendant, as the owner, to one Elvis Kilango and Hon. Hamad Masauni. Hence, the act of trespass may be continuous and therefore not dependent on the previous complained trespass. I have also considered the fact that, the tenants of the suit property may be different as well as the fact that, the defendants are and were not in possession of the 7 suit property. That, being the plaintiffs' plaint, it is not easier to hold that, the point raised by the 1st defendant is pure point of law as there are some facts and evidence to be ascertained during trial. This position of law was stressed in the famous case of Mukisa Biscuit Manufacturing Co Ltd vs. West End Distributors Ltd [1969] 1 EA 696 "4 preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised ifany

fact has to be ascertained or if what is sought is the exercise ofjudicial discretion." Since in our instant matters, there is a need to ascertain some of facts for example whether the plaintiffs are complaining trespass or intended trespass to the suit property, which is quite dissimilar from the former the one alleged in the former case. Since trespass to land as pleaded at para.7 and 8 of the plaintiffs' plaint is alleged to have recently attempted by the defendants and since trespass to land entails unjustifiable intrusion of another's land, the former intended trespass by the 1st defendant might have ended in 2014 or 8 afterwards resulting into withdrawal of the case. However, the same act may be resumed as pleaded. Hence, provisions of Order XXIII Rule 1 of the CPC in the circumstance cannot apply. Had the 1st plaintiff claimed ownership and trespass while in not possession of the suit property and subsequently withdrew the suit, the provisions of Order XXIII Rule 1 of CPC could be conveniently applied unlike the situation where 1st plaintiff who was in actual possession and use and the claims were on trespass or threats to trespass and ownership. That, said and done the 1st defendants PO is hereby overruled, the parties' matters shall be heard on merit and one of issues to be framed for the court's determination will be, whether the plaintiffs are precluded from filing the suit afresh. Costs of this ruling shall abide the result of the parties' dispute It is so ordered. dated and delivered at dar ES salaam this 10th October 2024. M.RX^WAE

JUDGE 9