al hassan babaisaka versus the registered board of trustees of siloam ministry international 2 others 2023 tzhclandd 17211 26 october 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 257 OF 2023 AL-HASSAN BABAISAKA PLAINTIFF VERSUS THE REGISTERED BOARD OF TRUSTEES OF SILOAM MINISTRY INTERNATIONAL DEFENDANT BAGAMOYO DISTRICT COUNCIL 2'^'' DEFENDANT THE TTORNEY GENERAL DEFENDANT RULING Date ofLast Order: 04.10.2023 Date ofRuling: 26.10.2023 T. N. MWENEGOHA,J. In this Ruling, I am Invited to decide on the merits or otherwise of the following Preliminary Objections; - 1. The suit is time barred, raised by the 1^ defendant- 2. The matter is resjudicata to Land Case No. 27 of 2012, raised by all defendants above. 3. The case is an abuse of court process, raised by the 2"^ and 3'^ defendants. The Objections were heard by written submissions, and in her submissions, the defendant chose to abandon the 1^ Objection and remained with one Objection. 1 Submitting in favour of the 2"^ objection, Mr. Raymond Wawa,counsel for the respondent, was of the view that, the instant matter is res judicata to the former case, vide Land Case No. 27 of 2012. The claim in the present suit is similar to that of the former suit, the subject matter is the same,the remedies sought are the same like the one in the previous suit, the parties also are the same, save for the 1®^ defendant who was being represented by one of the board members,testified as DW2 in the former suit. Therefore, the parties in the present suit are litigating in the same title and the matter was finalized. Therefore, this case contravenes the provisions of Section 9 of the Civil Procedure Code^ Cap 33 R. E. 2019. He also cited a number of cases, including the case of Panie! Lotta versus Gabriel Tanaki & Others(2003)TLR 312. On the other side, Mr. Urso Luoga, Senior State Attorney, supported the arguments by the counsel for the 1^ defendant on the issue of resjudicata. He insisted that, the former case, vide Land Case No. 27 of 2012, involved the 1^ defendant and the same subject matter. The Judgment was delivered by Wambura, J. on the 16.12.2016. Mr. Luoga cited the case of The Registered Trustees of Chama Cha Mapinduzi versus Mohamed Veri and Son & Others, Civil Appeal No. 16 of 2008, Court of Appeal of Tanzania (unreported). In reply. Advocate Henry Mwakalasya for the plaintiff, insisted that, this case is not res judicata. That in the Land Case No. 27 of 2012 the subject matter was Plot No. 37, Block"C", Bagamoyo. The same involved different parties, which are not in the present suit. Therefore, this is a new suit which has not been determined by any Court. He cited a number of cases, to cement his arguments, including the case of Coca cola Kwanza Ltd versus Peter John Mkenda, Civil Appeal No. Ill of 2017, High Court of Tanzania at Dar es salaam (unreported). On my part, I have considered the arguments of parties in this objection. To resolve the issue in question, I made a perusal of the pleadings, both the Plaint and the Written Statement of Defence by the 1=^ to 3"^ defendants. I found the copy of the Judgment given in Land Case No. 27 of 2012, annexed as SIL-1 in the Written Statement of Defence of the 1®' defendant and annexture BDC-01, in the Written Statement by the 2"^^ to 3^'' defendants. I took judicial notice of the same. Indeed, the suit at hand is res judicata to the former case. I say so because the current suit involves the same subject matter, which is a land, located at Plot No. 660, Block "C", Nianjema Area in Bagamoyo District. At paragraph of page 3 of the Decision given by Hon. Wambura, J. vide Land Case No. 27 of 2012, the same property was described as forming the subject matter of the former case. The parties are also substantially the same,the plaintiff Is the same and the 1®' defendant Is the same, only the 2"" and 3'" defendants are new in this case. After ail, the 1=^ defendant Is litigating under the same tittle as the defendant in the former suit was a Church, now a Board of Trustees of the same Church. As for reliefs, at the plaint, it has been stated that, the plaintiff wants to be declared the lawful owner of Plot No. 660 Block"C" Nianjema and that the 1^ defendant occupies the same wrongly, see prayer A to C in the plaint. However, the Judgment of Hon. Wambura,J. has sealed the issue of ownership of the said land when It declared the defendant in the former suit to be the lawful owner and should be left to enjoy the said land peacefully. That Is to say, the reliefs sought by the plaintiff in this case. cannot be granted, as the owner has already been declared a long time ago. Hence the present suit clearly contravenes the provisions of Section 9 of the Civil Procedure Code, Cap 33 R. E. 2019. For these reasons, I find the 2"'' Objection to be meritious and sustain it accordingly. Because of that, I do not need to discuss the 3^ Objection, the findings in the 2"" objection are capabie of disposing the entire suit. Eventually, the suit is hereby struck out with costs. T. N^^WWENEGOHA sr-> JUDGE -7 4 26/10/2023 C 1^1 £ r