Best western property scanned

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO.24348 OF 2024 BEST WESTERN PROPERTY HOLDING COMPANY LIMITED........................................................................ 1st pLAlNTIFF LUO GUANGUANG........................................................ 2nd PLAINTIFF VERSUS ZAMBIA CARGO AND LOGISTICS LIMITED.............. 1st DEFENDANT CORAL PROPERTY HOLDING COMPANY LIMITED..2ND DEFENDANT RULING lffh January2025& 2ffh February, 2025 L.HEMED, J Before this court there is a pending suit concerning Plot No. 316, Toure Drive, Oyster Bay, Masaki, Dar es Salaam, registered under Title No.9074(the suit land). The Plaintiffs are suing the defendants for breach of the sale agreement of the suit landed property. They are thus praying for judgment and decree against the defendants jointly and severally as follows; i "(a) A declaration order that the acceptance letter to buy the landed property, Plot no.316, Toure Drive, Oyster Bay Masaki, Dar es Salaam issued by the 1st Defendant to the 1st Plaintiff is still valid and remain legally binding. (b) A declaration order that the revocation of the acceptance letter by the 1st Defendant and the subsequent sale and transfer of the suit property to 2fd Defendant is illegal null and void. (c) A declaration that the sale of the property to the 2nd defendant is invalid. (d) An order compelling the 1st Defendant to fulfill the terms of the contract. (e) Payment ofgeneral damages suffered as a result of revocation of offer and sale of the disputed property. (f) Costs of the suit to be borne by the defendants. (g) >4/7/ other orders that this Honorable court deems fit andjust to grant. " The defendants disputed the claims by filing the respective defence. They also raised three points of preliminary objections in limine //Zzsthus: - 2 "i. That this suit is bad in law because the suit is Res Judicata to Land Case No. 291 of2023. ii. That, this Honourable Court is Functus officio. Hi. That, the first Plaintiff has not resolved to sue the 2nd Defendant." Hearing of the above points was done by way of written submissions. The defendants were represented by Mr. Salmin Suleiman Mwiry and Ms. Romana Gervas, learned advocates while the plaintiffs enjoyed the legal service of Alais Rundya Mwasha, learned counsel. I have keenly gone through the rival submissions in respect of the preliminary objection. I have opted not to reproduce them but will be making reference where necessary. I have chosen to begin with the 2nd limb of objection on whether this court is functus officio to determine the matter at hand. Before delving into determining the points raised, let me give a brief background pertaining to the points raised. Previously, the 1st Plaintiff had instituted Land Case No.292 of 2023 against the herein 1st Defendant, under the same cause of action and reliefs. The said case was shot by two points of preliminary objection one of them being want of jurisdiction of the matter on the ground that it 3 was not based on land dispute. This court (Hon.Msafiri,J), by its ruling delivered on 27th October 2023, sustained the objection and proceeded to dismiss the entire suit. Following the dismissal of the said suit, the plaintiffs instituted Civil Case No.25502 of 2023 at High Court, Dar es Salaam sub registry. The said case also faced a preliminary objection on jurisdiction of the court, it ended up being struck out. The plaintiffs opted to come back to this same court with the instant case, with similar cause of action and reliefs, only joining the 2nd plaintiff, hence the objections subject of this ruling. Let me start by making reference to Mukisa Biscuits Manufacturing Co.Ltd vs West End Distributors (1969) EA 696 where the East African Court of Appeal propounded the principle governing preliminary objections where it stated thus:- "... 5 Preliminary objection consists ofa point of law which has been pleaded, or which arises by dear implication out ofpleadings, and which if argued as a preliminary point may dispose of the suit." Further, the court went on to state that: - 4 "It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise ofjudicial discretion." In the light of the above principle, the general rule is that preliminary objections must be determined by looking at the pleaded facts and not otherwise. Going through the amended Plaint, the Plaintiffs have not pleaded about the existence of the ruling in respect of Land Case No. 291 of 2023 which dismissed the entire suit. Such information has been concealed in the Plaint but has been admitted in the submissions only contending that the parties in the previous case are quite different from the one at hand. The Plaintiffs, in paragraph 19 of the Amended Plaint they have referred only to Civil Case No. 25502 of 2023 at the High Court of Tanzania Dar es Salaam sub registry, which was struck out with the leave to refile it at the Land Division. In the circumstance, I decided to take judicial notice and perused the file of Land Case No.291 of 2023 and realized that the same had similar claims as the instant matter. 5 The learned counsel for the plaintiffs admittedly contended that Land Case No.291 of 2023 was dismissed by this court on the ground that it was a contractual matter. She contended that having filed it at the High Court - Dar es Salaam sub registry, the matter was faced another preliminary objection that the matter was a land and not contractual dispute where it ended up being struck out. The learned counsel levelled blames to both the High Court Land Division and the High Court, Dar es Salaam sub registry for being inconsistent as to which registry has the power to determine the suit at hand. However, the argument of the learned counsel has been that the matter cannot be functus officio as it involves different parties from the previous suit. Let me address the question as to whether this court is functus officio over the matter at hand. In Kamundu v. R (1973) EA 540 the East African Court of Appeal insisted that a court becomes functus officio once it has made a decision and communicated it to the parties, that it can no longer re-open or alter that decision. I have examined the records of Land Case No.291 of 2023 and found that the cause of action and the reliefs sought are similar to the matter at hand, dismissed by this court (Land Division) and in 6 Civil Case No. 255002 of 2023 which this court (Dar es Salaam sub registry) did strike it out. It is very clear that in the two previous two cases, two orders were made, in Land case No.291 of 2023, the claims were dismissed while in Civil Case No.25502 of 2023 the claims were struck out. Orders to dismiss a suit and that of striking out the suit have different effect to subsequent proceedings on the same subject matter and cause of action. In Tanzania, an order to strike out a suit has no bar the plaintiff to refile, a dismiss order essentially means the court has ended the legal proceedings, preventing the plaintiff from further pursuing the claim, unless by way of an appeal or setting aside the order. The dismissal order signifies the case is closed and the defendant is no longer liable to the plaintiff's claim in the particular suit. In other words, a dismissal order usually signifies a final determination of the case, barring the plaintiff from re-filing the same claim against the defendant. This position was instated by the East African Court of Appeal in Ngoni Matengo Cooperative Marketing Union Ltd vs, Ali Mohamed Osman, (1959) EA 577 that an order of dismissal connotes that a matter has been heard and disposed of its merits. The Court of Appeal of Tanzania has echoed the said 7 position in various decision including that in Exim Bank Tanzania Limited vs Yahaya Hamis Musa (As the Administrator of the Estate of the Late HAMIS MUSA MOHAMED t/a MAPILA GENERAL TRADERS), Civil Appeal No.275 of 2019. From the above authorities, the dismissal order bars the plaintiff from instituting a fresh suit on same subject matter and cause of action. The court that dismissed the previous suit becomes functus officio to determine the subsequent similar matter. In the submissions, parties are at one that Land Case 291 of 2023 had similar claims to this matter and Civil Case No.25502 of 2023. My conclusion is that, the dismissal order of this court in Land Case No.291 of 2023, makes it functus officio to determine this present suit. I have noted that the counsel for the plaintiff has argued that this matter is quite different from the previous one as the one at hand has parties who were not included in the previous one. I have examined the pleadings of the instant matter and found that, the Plaint was amended to include the 2nd Plaintiff the promoter of the 1st Plaintiff. However, despite the fact that the 2nd Plaintiff has been added as a new party, still all the claims in the plaint concern the 1st Plaintiff and are similar to the dismissed suit. 8 The way I see the matter at hand, if we consider that the court is functus officious against the 1st Plaintiff's claims and proceed to dismiss the suit of the 1st Plaintiff, then, the 2nd Plaintiff remains with no claims as against the defendants. But again, the fact that the same claims are the ones which we dismissed in Land Case No.291 of 2023, the court becomes constructively functus officio against the 2nd Plaintiff's claims, if any. In the upshot, I find merit in the preliminary objection. Unless the dismissal order in Land Case No.291 of 2023 is varied or vacated, this court remains functus officio to determine the claims in the instantaneous suit. The fact that the 2nd limb of objection disposes the entire suit, I find no need to proceed to determine the remaining limbs of objection. The suit is hereby dismissed with no orders as to costs. Order accordingly. DATED at DAR ES SALAAM this 28th February,2025. JUDGE 9