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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND CASE NO. 11188 OF 2024 AYASI RASHID MBISA (as administrator of the Estate of the late Asia Lisani Mwalukaja)……...........………………………. APPELANT VERSUS JAMIL TWALHA MBISA (As Administrator of the Estate of the Late Twalha Rashid Mbisa)…...……...………….……...1ST RESPONDENT THE REGISTRAR OF TITLES, MINISTRY OF LANDS, HOUSING AND URBAN DEVELOPMENT……………………….2ND DEFENDANT COMMISSIONER FOR LANDS, MINISTRY OF LANDS, HOUSING AND URBAN DEVELOPMENT………………….….3RD DEFENDANT THE ATTORNEY GENERAL…………..…………….4TH DEFENDANT RULING Date: 12 September 2024 & 8 November 2024 SINDA, J.: The plaintiff claims against the defendants for recovery of land with Title No. 359 -MBYLR. Plot No. 13 Block 2, Mwanjelwa area, Mbeya City 1 which form part of the deceased estate the late Asia Lisani Mwalukaja (the Disputed Property). He alleged that in 2019, he learned that the Disputed Property had been unlawfully and fraudulently registered under the names of Twalha Rashid Mbisa while the Disputed Property belonged to Asia Mwalukaja. The first defendant in reply filed the written statement of defence and raised a preliminary objections (P.Os) to the effect that: 1. This suit is barred vide the law of limitation. 2. The suit is incompetent and un maintainable vide the provisions of section 8 of the Civil procedure Code, Cap.33. R. E 2019 (the CPC) as it is res-subjudice vide Land Application No.31/2023 of the District Land and Housing Tribunal for Mbeya at Mbeya and Land Appeal No.85/2023 of this Court. 3. That the suit is incompetent for failure to join the necessary parties to wit Mbeya City Council. 4. That this suit is barred for being frivolous and vexatious contrary to the laws of the land The second, third and forth defendants also jointly raised a preliminary objection to the effect that the suit is time barred. 2 At the hearing of the P.Os Mr. Amani Angolwisye, learned counsel appeared for the plaintiff. Mr. Philip Mwakilima and Ms. Beatrice Kessy, learned counsels appeared for the first defendant. Mr. Michael Fyumagwa, state attorney appeared for the second, third and fourth defendants. The P.Os was argued orally. Mr. Michael Fyumagwa submitted that the suit is time barred. He stated that section 9 (1) of the Law of Limitation Act, Cap. 89, R.E 2019 (the LLA) provides that where a person institutes a suit to recover land of a deceased person, whether under a will interstate and the deceased person on the date of his death in possession of the land and was the last person entitled to the land to be in possession of the land. The right of action shall be deemed to have been accrued from the date of the death. Mr. Fyumagwa continued that the pleadings states that the plaintiff claims that the Disputed Property belonged to Asia Lisani Mwalukaja who died on 20 May 1973. He argued as per section 9 (1) of the LLA, the plaintiff was to claim the Disputed within 12 years from the date of the deceased death. As per Item 22 Part 1 of the LLA, any person who has a claim on land must do so within 12 years. He added that the 3 plaintiff died in 1973, and this matter was instituted in 2024, thus already 39 years have lapsed. Mr. Fyumagwa submitted further that section 35 of the LLA regards the administrator as if she or he has taken possession of the land immediately after the death of the deceased person. Therefore, it doesn’t matter when the administrator was appointed. Hence, this matter was to be opened within 12 years from 1973. Therefore, the matter is time barred. He prayed the matter is dismissed with costs. Mr. Philip Mwakilima, added by referring to the case of Demay Sikay vs. Neema Magoni, Civil Appeal No. 3 of 2011 (CAT at Arusha) that the CAT stated that if someone owns land and has not been disturbed for a long time for more than 12 years then that person is the owner of the disputed land. He submitted that the father of the first defendant owned the Disputed Land and later obtained the certificate of title in 1990. That, his ownership was never challenged before and after obtaining the title deed. He added that the plaintiff has kept quiet for all this time until the first defendant passed away. He insisted that the matter is time barred. 4 In relation to the second P.O, he referred to section 8 of the Civil Procedure Act, Cap 33 R.E 2019 (the CPC). He stated that the matter before this court is at the District Land Housing Tribunal at Mbeya for Mbeya (the DLHT) in Land Application No. 31 of 2023. That, the parties are the plaintiff and the first defendant. He added that the same matter came to this court in Land Appeal No. 85 of 2023. This court ordered the matter to proceed at the DLHT. He added that the Land Application No. 31 of 2023 is on going at the DLHT. He argued that the case before this court is in relation to the same subject matter at the DLHT i.e. the Disputed Land. He argued that section 8 of the CPC prohibits parallel suits to proceed at the same time before two different courts. The remedy is that the matter which comes later must be dismissed. It was his opinion that this matter should not be before this court. He found this to be a frivolous and vexatious suit. In relation to the fourth P.O, he submitted that this suit is incompetent for failure to join the necessary party that is Mbeya City Council. He argued that the process to obtain the title deed as per paragraph 6 of the plaint must start with Mbeya City Council. That, the plaint mention Mbeya City Council. The title deed can not reach the Registrar of Titles and Commissioner for Lands without going through the Mbeya City 5 Council. If the matter proceed like this Mbeya City Council will not have the right to be heard. He prayed this court to struck out this matter. In reply, the advocate for the plaintiff opted to respond to all the P.O.s together. He submitted that section 9 of the LLA must be read together section 24 (1) of the LLA. He submitted that in paragraph 7 of the plaint, the cause of action arose when the applicant knew in 2019 that there is an interference in the estate of the late Asia Mwalukaja. He referred to the case of Hamis Mohamed (as the administrator of the Estate of the late Risasi Ngawe) vs. Ntumwa Moshi (As the administratix of the estate of the late Moshi ABdallah) Civil Appeal No. 87 of 2020, (CAT at DSM) to support his argument. He submitted further that the case of Demay Sikay (supra) is distinguishable as it relates to the principles of adverse possession. He further argued that, it is true that there is a matter before the DLHT. He added that the plaintiff is the respondent in the matter at the DLHT. He continued that there was another matter before this court which was lodged prematurely and it was struck out. He objected that section 8 of the CPC does not bar this court from entertaining this case especially on reliefs which has been prayed in the other court. He argued that the reliefs before this court are on the rectification of the names on the title 6 deed. This relief cannot be granted by the DLHT. He referred to the case of Wengert Windrose Safaris (Tanzania Limited vs. The Minister for Natural Resources and Tourism and the AG, HC Commercial Division at DSM, Misc. Commercial Cause No. 89 of 2016 at page 12 the Court which discussed section 8 of the CPC and provided four conditions for the matter to be stayed. The third condition states that the court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit. He prayed objection be overruled. He further contended that Mbeya City Council is not a necessary part to the suit. He submitted that they did not pleaded Mbeya City Council in the plaint. The decree can be executed against the parties who are joined in the case. He prayed the objection be overruled. With regards to the fourth P.O, he argued that the matter before this court is not frivolous. He submitted that the reliefs prayed can be granted by this court. He prayed the P.O to be overruled with costs. In rejoinder, Mr. Mwakilima reiterated his submission in chief and that of Mr. Fyumagwa. He further claimed that Mbeya City is pleaded at paragraph 4 of the plaint. That, the plaintiff claimed that the third defendant surveyed the Disputed Land. He added that however, it is 7 Mbeya City Council which surveyed the Disputed Land. Therefore, Mbeya City Council is a necessary party. I have considered both courts records and submission made by the parties. I will start with the second P.O that the suit is incompetent and unmaintainable as it is res-subjudice vide Land Application No. 31 of 2023 at the DLHT. That, it involves the same parties who are the plaintiff and the first respondent. The doctrine of res subjudice prevent courts of con-current jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject- matter and the same relief. For the case to be referred as res subjudice the following conditions must exist as provided under 8 of the CPC as follows: (i) There must be two suits, one previously instituted and the other subsequently instituted. (ii) The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. (iii) Both the suits must be between the same parties or their representatives. 8 (iv) The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court in Tanzania. (v) The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit. (vi) Such parties must be litigating under the same title in both the suits. In the light of the above provision of law, it is with no flicker of doubt that, the Land Application No. 31 of 2023 is on going at the DLHT in relation to the same subject matter that is the Disputed Property involving the plaintiff and the first defendant. The Land Application No. 31 of 2023 came before this court in Land Appeal No. 85 of 2023 where this court ordered the matter to proceed at the DLHT. The same is on going at the DLHT. In the case of Director of Public Prosecutions v. ACP Abdalla Zombe and 8 others, Criminal Appeal No. 254 of 2009, CAT (unreported), the CAT held that this Court always first makes a definite finding on whether or not the matter before it for determination is competently before it. This is simply because this Court and all courts have no jurisdiction, be it statutory or inherent, to entertain and determine any incompetent proceedings. 9 I therefore agree with Mr. Mwakilima that filing this suit one year later while the Land Application No. 31 of 2023 is on going at the DLHT is an abuse of court process. I am of the firm considered view that this matter has no merit since it has been prematurely filed and is in the contravention of the principle of res- sub judice. I find that the second P.O has merit. I hereby struck out the matter for being incompetent with costs. DATED at MBEYA on this 8 day of November 2024. A. A. SINDA JUDGE 10