benedicto rweikiza ijumba vs kinondoni municipal council 2 others 2022 tzhclandd 12650 17 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TAtJzANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 181 OF 2022 BENEDICTO RWEIKIZA I3UMBA PLAINTIFFS VERSUS KINONDONI MUNICIPAL COUNCIL DEFENDANT PERMANENT SECRETARY MINISTRY OF LAND AND HUMAN SETTLEMENT, URBAN PLANNING AND DEVELOPMENTS 2^° DEFENDANT THE ATTORNEY GENERAL 3'^ DEFENDANT FX-PARTE RULING Date ofLast Order: 18. 10.2022 Date ofRuling: 17.11. 2022 T.N. MWENEGOHA,J Three preliminary objections as raised by the respondents jointly, are in need of determination. They are as follows;- 1. The suit is resjudicata. 2. The suit offends the provisions of Order VI Rule 14 of the Civil Procedure Code, Cap 33 R.E 2019. 3. The suit contravenes the provisions of section 6(2) of the Government Proceedings Act, Cap 5 R.E 2019. The objections were to be argued by way of written submissions. Narindwa Sekimanga, iearned State Attorney represented the respondents while the plaintiff did not file his reply to the submissions of the defendants, hence the case was heard exparte against him. In the 1®' objection, the iearned State Attorney for the defendants maintained that, the instant case is resjudicata to the former case, heard and determined by this court, vide Land Case No. 450 of 2016, between Alex Mwlta Msama versus Kinondoni Municipal Council and 2 Others. It was the claim in that case, that, the plaintiff herein is the one who sold the suit land, subject to the case at hand, to Mr. Alex Mwita Msama, the plaintiff in the former case. The case was finalized by a declaration that, the suit property belongs to the government and the plaintiff (Alex Mwita Msama) was not the owner of the said property. It is in the name of His Excellence the President of the United Republic of Tanzania. That, in case Mr. Ijumba, the plaintiff herein was not satisfied by the decision of the court, then the remedy available was an appeal and not to file a fresh case. He is barred by the law, under section 9 of the Civil Procedure Code, Cap 33 R.E 2019. That, it is because, the question of ownership of the suit property has already been determined by this court in the former case. He cited the case of George Shambwe versus Tanzania Italian Petroieum Company Ltd (1995)TLR 21. I have considered the submissions presented before me, I agree with the learned State Attorney for the defendants, this case is res judicata. In the instant case, what has changed is the name of the plaintiff only. Tbe subject matter and reliefs are the same. Above all, the plaintiff herein above, Benedicto Rweikiza Ijumba, was mentioned in the former case, to have been sold the house in question to Mr. Msama. Since the decision in the former case declared the suit land to be under the ownership of the government and that decision has never been challenged to date, the plaintiff cannot file a fresh case over the same subject matter and same reliefs. Even though the plaintiff in the instant case was not party to the former, but he and the plaintiff in the former case are litigating under the same title, see Section 9 of the Civil Procedure Code, Cap 33 R.E 2019 and the case of George Shambwe versus Tanzania Italian Petroleum Company Ltd supra. Therefore, the 1=' objection has merits and is sustained accordingly. Having sustained the objection, I will not go further into the discussion of the remaining two objections. The findings in the 1®' objection are capable of disposing the entire suit to its finality. In the end, I struck out this suit, with and costs. OFf T.N MWENEGOHA j JUDGE t ★ 17/11/2022 o o //^ X V- 32? ★ 'f -' *. 'f '•V'* * \W [ "•■-i '-'.L ✓;