Bukoba Municipal vs Anatory Amani 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA MISCELLANEOUS LAND APPLICATION NO. 20006 OF 2024 (Arising from Land Case No. 1208 of2023 High Court of Tanzania at Bukoba) BUKOBA MUNICIPAL COUNCIL....... ..................... ........ . 1st APPLICANT ATTORNEY GENERAL.................... .......... .................... 2nd APPLICANT

VERSUS ANATORY JOHN AMANI.......... .. RESPONDENT AND MORITIES CORPORATION LTD....... ............ ................... THIRD PARTY

RULING 21st and 29th August, 2024 BANZL J.: The applicant has filed this ex-parte application by way of Chamber Summons pursuant to Order I Rule 14(l)(b)(2) and Order XLIII Rule 2 of the Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC) seeking leave of this court to file a third-party notice against Morities Corporation Ltd. The application was supported by an affidavit of Ms. Farida Nchimbi, learned State Attorney for the applicants. In her affidavit, Ms. Nchimbi stated that, the claim of the Plaintiff in Land Case No. 1208 of 2023 arises from a piece of land located at Rwazi Page 1 of 7 area in Bukoba Municipality which before the year 2011, was owned by the respondent. Thereafter, the first applicant followed due processes of acquiring the suit land whereby, the valuation was conducted and the suit land was estimated to be valued atTZS 12,267,150.00. Under the instruction of the respondent, the amount of compensation was paid to the respondent through the account of the third party, Morities Corporation Ltd maintained at Tanzania Commercial Bank (formerly Postal Bank), It was further stated that, despite being the owner as shareholder, the respondent is among the directors of the said company. The respondent having received the said amount as compensation through his company, he has come back on the back door by instituting the Land Case No. 1208 of 2023 pretending

and claiming to have been unpaid and unaware of the whole scenario. She added that, by accepting the payment as compensation through his company, the third party, the respondent has waived his right from the suit land. She concluded by stating that, if Morities Corporation Ltd is not joined as a third party, the applicants are likely to suffer economic loss and it will cause injustice to them. At the hearing, Mr. Nestory Lutambi, learned State Attorney who appeared for the applicants began his submission by adopting the affidavit of Ms. Farida Nchimbi to form part of their submission. He further submitted Page 2 of 7 that, they have brought this application because the remedy claimed against the third party is connected to the subject matter to the suit and is substantially the same with relief or remedy claimed by the plaintiff. He clarified that, the suit land upon which the plaintiff is claiming for vacant possession against the applicants had been compensated in 2011 through the bank account of the third party which was presented to them by the plaintiff/respondent. He added that, the official search from BRELA reveals that, the respondent is the shareholder of the third party owning 5000 shares and he is also the director in that company. Since the applicants had compensated the respondent through the third party, their claim against the third party is connected to the

subject matter of the suit and is substantially the same with the plaintiff's claim against the defendants. In that regard, they prayed for leave for Morities Corporation Ltd to be added as the third party in Land Case No. 1208 of 2024 so that she can be held liable for the claim made by the plaintiff. Having considered the affidavit with its annexures and submission by learned State Attorney for the applicants, the main issue for determination is whether the applicants have met the conditions to be granted leave to present the third party notice. Page 3 of 7 Order I Rule 14 (1) (a) (b) of the CPC provides that: "14 (1) Where in any suit a defendant claims against any person not a party to the suit (hereinafter referred to as "the third party")- (a) any contribution or indemnity; or (b) any relief or remedy relating to or connected with the subject matter of the suit and substantially the same as a relief or remedy claimed by the plaintiff, the defendant may appiy to the court for leave to present to the court a third party notice."(Emphasis supplied). It is apparent from the extract above that, for defendant to be given leave to present third party notice, among other things, he is required to prove that, he is entitled against the third party to any relief or remedy relating to or connected with the subject matter of the suit which is substantially the same as a relief or

remedy claimed by the plaintiff against the defendant. In the case of Bhamji Laxman Limited vs National Sisal Authority & the NBC, Civil Case No. 60 of 1993 High Court of Tanzania at Dar es Salaam (unreported), it was held that: "At this juncture let it pointed out that a third party notice is for ail practical purposes, a form of a claim by the Page 4 of 7 defendant instituted against the third party, for the reliefs sought. As the defendant's claim against the third party hinge on the nature of the claim of the plaintiff against the defendant, it is for a fair and just adjudication of the dispute imperative that the third party should be supplied with sufficient facts as to make him know adequately the nature of the claim as to be in a position to prepare a proper adequate defence. The need for such sufficient facts to enable the third party identify the nature of the claim comes to the fore when one reads Rule 17 of Order 1 of the CPC. " In the main suit, the plaintiff claims against the first defendant to have no colour of right on the suit land for want of legal procedure on acquisition of the said suit land. Likewise, among other reliefs, he prayed to be declared as the lawful owner of the suit land. According to the affidavit of the applicants with its annexures, the same suit land was lawfully acquired by the first defendant after paying the plaintiff TZS 12,267,150.00

as compensation. It was also stated that, the said amount of compensation was paid to the respondent through account number CCA 026-0000243 maintained by Morities Corporation Ltd at Tanzania Commercial Bank which was given to the first defendant by the respondent. Apart from that, according paragraph 2 and annexure DAI, the respondent is the director and Page5 of 7 shareholder of Morities Corporation Ltd owning 5000 shares. Basing on these facts, it is my considered view that, there is nexus between the claims of the plaintiff against the defendants and the claims of the defendants as against the third party, that they both emanate from and are based on the same suit land which the first defendant claims to compensate the plaintiff through the third party. Moreover, the applicants have fulfilled the conditions of Order I Rule 14 (2) of the CPC by disclosing the nature of the claim made by the plaintiff in the suit, the stage which proceedings in the suit have reached, the nature of the claim made by the applicant against the third party and its relation to the plaintiff's claim against the applicant and the name and address of the third party. I am satisfied therefore that, all the necessary requirements for the grant of an order for the applicant to present a third-party notice were met. For the foregoing reasons, I find it reasonable and proper to grant leave to the

applicants to present notice for Morities Corporation Ltd to be joined to the Land Case No. 1208 of 2023 as a third party so that the claims of the respondent herein against the applicants can be determined in tandem with the claims of the applicants as against the third party. This will avoid Page 6 of 7 multiplicity of suits. Consequently, I grant the application by giving the applicants 14 days from the date of this Ruling, to present a third-party notice in Land Case No. 1208 of 2023 against Morities Corporation Ltd. The third party shall present her Written Statement of Defence within 21 days from the date of being served with the third party notice. Since the application was made ex-parte, I make no order as to costs. It is so ordered. I. K. BANZI

JUDGE 29/08/2024 Delivered this 29th day of August, 2024 in the presence of Messrs. Nestory Lutambi and Victor Mhana, learned State Attorneys for the applicants, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA and in the absence of the respondent and third party. --------- \ I. K. BANZI

JUDGE 29/08/2024 Page 7 of 7