Mpoi

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE N0.28321 OF 2024 ALLY MAPOI PLAINTIFF MWALIMU ABDALLAH RWAMBO 2”° PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF 3UMUIYA ZAWIYYATUL QADIRIYA TANZANIA 1ST defendant KHALIFA RAJABU MANZI 2ND defendant MOHAMED MSUMl 3^ DEFENDANT AHMAD KHAMIS alias OSAMA 4TH DEFENDANT OMAR SULE alia Mzee CAF 5T» DEFEDNANT RULING Pate of Last Order: 15.04.2024 Date of Ruling: 30.04.2024 T. N. MWENEGOHA, J. In this Ruling, I am invited to decide on the merits or otherwise of the following Preliminary Objection by the and 2^"^ defendants, that:- 1. The plaintiffs have no cause of action against the defendant. 2. The plaintiffs have no iocus stand to sue the defendants in this case. 3. The suit is not maintainable for being resjudicata. 1 4. The suit is time barred. In addressing above mentioned objections, I will start with the 3’'^ objection, that the suit is resjudicata. According to the submissions of Mr. Mohamed Tibanyendera, counsel for the l^and 2"^ defendants, he insisted that, this case is not maintainable owing to the existing Consent Judgment and Decree entered in Land Case No. 113 of 2020, by this Court. In the said case, the parties were 1^ defendant hereinabove against other persons among them the 1^ plaintiff. That, the subject matter is same as in this case and has already been registered in the name of the 1^*^ defendant owing to that Consent Judgment. Hence the ownership issue has already been determined in respect of the land in dispute. Therefore, the case at hand is against the mandatory provisions of Section 9 of the Civil Procedure Code, Cap 33 R. E. 2019. In reply. Advocate Mussa Kiobya, for the plaintiffs, insisted that, the 1^^ plaintiff was neither involved In the Settlement Deed, nor aware of its existence. That, after all the same was fraudulently procured by the parties involved therein, hence the doctrine of res-judicata cannot apply under these circumstances. It was his argument that, this fresh suit is the only remedy for a person wishing to challenge a Consent Judgment obtained by fraud, as stated in Mulla Code of Civil Procedure, 16^ Edition, Volume 1 at page 653. In addressing the issue, I have revisited the records and I found that there was a same case involving the same parties, save for the 2"^ plaintiff and the 2'^'^ defendant. Also, it involves same subject matter and the same reliefs, see annexure MNS-1 of the plaint As per Section 9, of the Civil Procedure Code, Cap 33 R. E. 2019, the Courts are barred from entertaining such cases. For quick reference, let me reproduce the provisions of section 9 as follows; - "No court shall try any suit or issue 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 tide 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 by such court" Also, see the case of Paniel Lotta versus Gabriel Tanaki & Others (2003) TLR312. In his arguments, however, Mr. Mussa Kiobya relied much on the frauds, alleged to be associated with the Consent Judgment. Hence, he referred this Court to the book of Mulla Code of Civil Procedure, 16^^ Edition, Volume 1 at page 653. That, the only way an aggrieved person can challenge a Consent Judgment if obtained by fraud, is by way of filing a fresh suit. Of course, that is the position as also cemented in the case of Mohamed Enterprises (T) Limited versus Massoud Mohamed Nasser, Civil Application No- 33 of 2013, Court of Appeal of Tanzania, at Dar es Salaam (unreported), where the court observed at page 18 that, " The only option open to the respondent here in was to die a fresh suit appropriate to that particular remedy, did not do so. Instead, he came before Twaiib, J. by way ofan application. That was notpropef. However, what the counsel did was the opposite, instead of challenging the Deed of Settlement, he filed a fresh land case to challenge a Judgment which has already been passed by the same Court, (High Court Land Division, vide Land Case No. 113 of 2020). But this Court having already made its Decision on the said case, it is functus officio. It cannot rehear the dispute, until the Deed of Settlement is set aside. I, therefore, find that the 3^^ objection has merits, hence the same is sustained. As this is the case, I do not need to discuss the remaining objections, the findings in the 3*^ objection are capable of disposing the entire suit to its end. In the end, I find the case to be incompetent and the same is struck out with costs. it's so ordered. T.Jt^yNEUEGOHA JUDGE 30/04/2024 4