Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 24363 OF 2024 (Arising from Execution No. 191 of2023) (Originating from Land Case no. 13 of 2016) BETWEEN ALLY HASSAN NAMANGAYA..................................... APPLICANT VERSUS TUTINDAGA JOHN MWAMBENJA (As Administratrix of Estate of the late SABETHA M. J. MWAMBENJA)............. RESPONDENT RULING Date of last Order: 29/11/2029 Date of Ruling: 04/12/2024 LALTAI KA, J. The Applicant herein ALLY HASSAN NAMANGAYA has filed this Application under Order XXXIX Rule 5 (1), (2), (4) and section 68 (e) and 95 of the Civil Procedure Code Cap 33 R.E 2019 seeking this Court an Order for stay of execution of Decree in land case no 13 of 2016 being executed vide Execution No. 191 of 2024 pending Civil application No. 672/17 of 2014 in the Court of appeal of Tanzania. No sooner had the Page 1 of 10 Respondent received the Application than her Counsel raised a preliminary objection (PO). When the Application was called for mention on 16/10/2024 Messrs Faraji Mangula and Mohamed Tibanyendera, learned Advocates, appeared for the Applicant and Respondent respectively. Parties opted to dispose of the PO by way of written submissions. I take this opportunity to commend the learned Advocates for spotlessly complying with the ordered schedule. The next part of this Ruling is in that order, a summary of submissions by both parties, my analysis of the law and the verdict. Mr. Tibanyendera, Counsel for the Respondent informed the Court that, on July 15, 2024, the applicant had initiated Application No. 16770 of 2024 for a stay of execution under Order XXXIX, Rule 5 (1), (2), (4) and Sections 68 (e) and 95 of the Civil Procedure Code Cap 33 R.E 2019. In that application, Counsel averred, the Applicant had sought a court order to stay the execution of the decree in Land Case No. 13 of 2016, which had been executed through Execution No. 191 of 2024 before Hon. Lukindo, DR (now before Kangwa DR.), pending determination of an application for extension of time registered as Misc. Land Application No. 16386 of 2024. Counsel went on to narrate that the said application was heard and decided on its merits on September 20, 2024, before Hon. Luvanda, Page 2 of 10 J. and that Application No. 16386 of 2024 for extension of time was dismissed on August 23, 2024, due to insufficient cause, rendering Application No. 16770 of 2024 for stay of execution baseless and without any pending matter before the Court; consequently, it was also dismissed with costs. Mr. Tibanyendera argued that re-filing the present application, based on Application No. 672/17/2024 pending before the Court of Appeal, constituted an abuse of court process and was barred by res judicata, in contravention of Section 9 of the Civil Procedure Code Cap 33 R.E 2019. He referred to the section's stipulation that no court shall entertain a suit or issue already directly and substantially in dispute in a previous suit between the same parties or their legal representatives under the same title in a competent court, and which has been heard and finally decided. Counsel further cited explanations within this section, noting that the term "former suit" refers to any suit decided before the current one, regardless of when it was filed, and that the competence of a court should be determined without considering the right of appeal from its decisions. Mr. Tibanyendera maintained that Applications No. 16770 of 2024 and the present application involved identical parties, sought the same relief over the same execution, were filed under the same legal provisions, Page 3 of 10 and were grounded on the same argument of a pending determination in court, making the current application a clear case of res judicata. He further contended that Application No. 16770 of 2024 had been dismissed, rather than struck out, which did not allow the applicant to return on the same matter. He argued that, upon dismissal, the matter was considered finally heard and determined. He cited the case of 01am Uganda Limited Suing Through Its Attorney United Youth Shipping Company Limited v. Tanzania Harbours Authority, Civil Appeal No. 57 of 2002, where the apex Court held that dismissal amounted to a conclusive determination, and a fresh suit on the same cause of action could not be filed unless the dismissal order was vacated by review, appeal, or revision. Mr. Tibanyendera submitted that the stay of execution issue had been conclusively heard and determined by a competent court, leaving the current court without jurisdiction over a matter already decided. He asserted that the pending Application No. 672/17 of 2024 before the Court of Appeal did not invalidate the dismissal order granted in Application No. 16770 of 2014. Referring to the case of Omary Mtalika v. Ets Maurel Et Prom, Civil Case No. 178 of 2019, he noted that my brother Hon. His Lordship Kakolaki J. held that the plaintiffs only remedy was to appeal, seek revision, or file a review of the dismissal order; failing this, the Page 4 of 10 decision of the lower court remained valid, and a fresh suit could not be filed until the dismissal order was vacated, establishing the present matter as res judicata. He emphasized that the remedy, therefore, lay in appeal, revision, or review, and that filing a fresh application, as the applicant had done, was an abuse of court process and confirmed the matter's res judicata status. He thus urged the Court to dismiss the application with costs on these grounds. Mr. Mangula, Counsel for the Applicant, informed the Court that the Respondent’s Advocate had filed the notice of preliminary objection on October 15, 2024, before filing the counter affidavit, which followed on October 18, 2024. He argued that this approach was procedurally improper, contravening Order VIII Rule 2 of the Civil Procedure Code Cap. 33 R.E 2019, which requires the respondent, similar to a defendant in a civil suit, to file a counter affidavit first before raising any objection. Counsel submitted that, without a counter affidavit, the preliminary objection lacked a proper foundation and must be struck out, citing Golden Globe International Services Limited v. MIC Tanzania Limited & 3 Others, Misc. Commercial Application No. 119 of 2016 (Unreported) to support his argument. Page 5 of 10 Mr. Mangula summarized the facts leading to the current application, explaining that the Applicant had initially filed Misc. Land Application No. 16386 of 2024, seeking an extension of time to file a notice of appeal out of time. Subsequently, the Applicant lodged Misc. Land Application No. 16770 of 2024, seeking an order to stay the execution of a decree in Execution No. 191 of 2024 between Tutindaga John Mwambenja (as administratrix of the estate of the late Sabetha M.J. Mwambenja) and Ally Hassan Namangaya, pending the determination of Misc. Land Application No. 16386 of 2024. However, Mr. Mangula asserted, as the court dismissed Misc. Land Application No. 16386 of 2024 for lack of sufficient cause on August 23, 2024, the stay application (No. 16770 of 2024) also lost its basis and was subsequently dismissed with costs on September 20, 2024, since there were no pending proceedings. Following these rulings, Mr. Mangula averred, the Applicant filed an application with the Court of Appeal of Tanzania on August 30, 2024, seeking an extension of time to file a notice of appeal. He explained that this application, registered as Civil Application No. 672/17 of 2024, was brought under Rules 10 and 45A(2) of the Court of Appeal Rules 2009, as amended, and served as the basis for the current application before this Court. Page 6 of 10 In addressing the preliminary objection that this application was res judicata, Mr. Mangula argued that the objection did not satisfy the criteria for a valid preliminary objection as established in Mukisa Biscuits Manufacturing Co. Ltd. v. West End Distributors Ltd. (1969) EA 696. For an application to be res judicata, he asserted, the conditions outlined in Section 9 of the Civil Procedure Code Cap 33 R.E 2019 must be met. He cited Paniel Lotta v. Gabriel Tanaki & Others [2003] T.L.R 312 to buttress his contention. Mr. Mangula contended that, while the Applicant had filed Civil Application No. 672/17 of 2024 with the Court of Appeal, the Applicant could not apply to stay Execution No. 191/2024 at that court, due to the procedural requirement that a notice of appeal must first be lodged. Based on these arguments, Mr. Mangula requested that the preliminary objection be dismissed in its entirety, with costs, and that the Applicant's application be heard on its merits, asserting that the objection merely sought to delay the application's hearing. I have dispassionately considered the rival submissions. My primary task is to assess whether the preliminary objection raised by the Respondent satisfies the criteria for res judicata under Section 9 of the Civil Procedure Code and whether the objection itself was procedurally filed. Page 7 of 10 On procedural validity, a defendant or respondent raising a preliminary objection is generally required to have first filed an answer or counter-affidavit. As noted by the Applicant, preliminary objections filed without an answering affidavit may lack the procedural foundation necessary for their consideration. Upon review, this Court finds that the Respondent's objection was indeed filed before the counter-affidavit, which could be viewed as a procedural irregularity. It should be noted however that, such procedural defects are typically curable unless they cause prejudice. Given that both parties have had the opportunity to argue their positions fully, this Court finds the procedural oversight does not, in this instance, prejudice the Applicant, and thus, I proceed to the substantive issues, whether the application is res judicata. The doctrine of res judicata under Section 9 of the Civil Procedure Code aims to prevent the re-litigation of issues that have already been decided between the same parties. To establish res judicata, it must be shown that: (a) the matter directly and substantially in issue has been directly and substantially in issue in a former suit; (b) the former suit involved the same parties, orthose claiming under them; (c) both matters were litigated under the same title; (d) the matter was heard and finally decided by a competent court. Page 8 of 10 In this case, Miscellaneous Land Application Nos. 16386 and 16770 of 2024 were heard and decided on their merits. The dismissal of these applications indicates finality under the doctrine of res judicata, as the relief sought in both was related to the stay of execution in Execution No. 191 of 2024. As established in 01am Uganda Ltd. (supra), a dismissal order serves as a conclusive determination, and any attempt to refile a similar application without first setting aside or appealing the dismissal constitutes an abuse of the court process. I have noted that the Applicant argues that determining res judicata would require extensive factual investigation, making it unsuitable as a preliminary objection. While Mukisa Biscuits Manufacturing Co. Ltd. (supra) emphasizes that preliminary objections should involve clear points of law, the legal principle of res judicata, in this instance, does not require extensive factual scrutiny, as the core facts are undisputed and fully documented in the record of previous rulings. This Court finds that refiling an application for stay of execution on similar grounds, without appealing or setting aside the previous dismissals, does indeed constitute an abuse of the Court's process. As held in Omary Mtalika v. Ets Maurel Et Prom, Civil Case No. 178 of 2019, repeated filing of applications on the same matter violates judicial economy and finality, and therefore cannot be condoned. Page 9 of 10 Premised on the above, this application is hereby dismissed with costs. It is so ordered E.L LA LTAl KA JUDGE 04/12/2024 Court: Ruling delivered in Court Chambers this 4th day of December 2024 in the absence of parties. Page 10 of 10