ALLY OMARI ABDI VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB - REGISTRY OF ARUSHA AT ARUSHA LAND CASE NO. 25364 OF 2024 ALLY OMARY ABDI.................................................................................. PLAINTIFF VERSUS AMINA KHALILE ALLY (As Administratrix of the Estate of the late Khalile Ally....................... 1st DEFENDANT ULOFAMO AUCTIONEER & COURT BROKER LIMITED................. 2nd RESPONDENT RULING 19th November & 20th November 2024 KAINDA, J.: The plaintiff, Ally Omary Abdi lodged this suit praying for judgement and decree of the court against the defendants, jointly and severally, for the following orders; a) A declaration order that the plaintiff is the lawful owner of the house located at Plot Number 30, Block E, area F, Certificate of Title Number 18049, LO Number 165694 within Arusha Municipality, Arusha Region. b) A declaratory order that the notice with reference number UFM/NTC/AR/42/2024 dated 2nd October, 2024 issued to the plaintiff by the 2nd defendant is illegal and hence null and void ab initio i c) A permanent injunctive order to restrain the defendants, their agents, workmen or any other persons acting under their instructions from doing any activities and or disturbing the plaintiff with his peacefully enjoyment of the disputed house. d) Payment of general damages suffered by the plaintiff to be assessed by the court e) Interest at current bank rate of 21% per annum on prayers (d) above from 2024 to the date of judgement f) Interest on the decretal sum at a commercial rate of 12% per annum from the date of judgement to the date of satisfaction of the decree in full. g) Any other orders or reliefs as the court may deem fit to grant. The suit has been challenged by the two defendants through a notice of preliminary objection containing two points of law. At the hearing of the preliminary objection, Mr. Gwakisa Sambo, learned counsel, appeared for the plaintiff, whereas Mr. Innocent Mwanga, also learned counsel, appeared for the defendants. When the matter came up for hearing, Mr. Mwanga abandoned one of the said two points. The remaining point which is on the competency of the suit reads; the honorable court has no jurisdiction to entertain the matter. 2 In essence, Mr. Mwanga's submission was that, the court lacks jurisdiction to entertain the matter as the subject matter in the suit is also a subject in the three pending proceedings in the court of appeal. He made a reference to notices of appeals lodged in the court of appeal which touches the disputed property in this suit which is Plot No. 30 Block E, Area F within the City of Arusha. In reply, Mr. Sambo submitted that, the court has jurisdiction to entertain the matter. He conceded to the presence of the notices of appeal in the court of appeal, but was quick to point out that, the subject of the suit in this court is different and distinct from those in the proceedings which are pending in the court of appeal. He argued that, all the three proceedings pending in the court of appeal has no relevance to the suit in this court. He further argued, for the notice of appeal to be a bar of the proceedings in this court, there must be some interference of the decision to be made, and that, the cause of action before the court is the plaintiff's prayer to be declared owner of the suit land. In his brief rejoinder, Mr. Mwanga reiterated what he submitted in chief. He maintained that it is the cause of action which confers the court jurisdiction and not the parties. My consideration of the matter is that; once a notice of appeal had been lodged in the court of appeal, the High Court ceases to have jurisdiction over 3 the matter. In Tanzania Electric Supply Company Limited v. Dowans Holdings SA (Costa Rica) & Another, Civil Application No. 12 of 2012, the court quoted with approval the decision in Aero Helicopter (T) Limited v. Jansen [1990] TLR 142, the Court of Appeal held that; "It is settled law in ourjurisprudence, which is not disputed by counsel for the applicant, that the lodging of a notice of appeal in this court, against an appealable decree or order of the High Court, commences proceedings in the court. We are equally convinced that it has long been established law that once a notice of appeal has been lodged, the High Court ceases to have jurisdiction over the matter." To this position of law, counsels for the parties are at one. The issue for determination is whether the cause of action in the matters in the court of appeal is distinct from the one at hand. On this, I side with Mr. Mwanga's position that, the subject matter in the present suit is the same with those in the proceedings pending in the court of appeal for the following reasons; one, as shown above, the plaintiff in this matter is praying for a declaratory order that; the plaintiff is the lawful owner of the house located at Plot Number 30, Block E, area F, Certificate of Title Number 18049, LO Number 165694 within Arusha Municipality, Arusha Region. However, Annex ANN 7 which is annexed to the joint written statement of defense by the defendants is a notice of appeal 4 filed on 26th February,2024. The third and sixth grounds of appeal in the Memorandum of appeal subject of the proceedings in the court of appeal at page 76 and 77 of the record reads; "3. That, the presidingjudge erred in law and in fact by holding that the disputed land, witnessed under the Certificate of Title Number 18049, L.O. Number 165694, Plot Number 30, Block E area F within the Arusha municipality is amongst the Estate of the late Khaiiie Ally the fact which is not legally correct as title in the property passed to the appellant since 1996 when the property was granted as unconditional gift to the appellant, hence he arrived at erroneous decision. 6. That the trial court erred in law and in fact in holding that the probate case between the appellant and the 3rd respondent as found by the High Court of Tanzania sitting at Manyara Sub- registry was finally decided / determined, while the same was pending for a submission of full and true inventory of the estate of the late Khaiiie Ally for a finding by the Katesh Primary court after submission ofinventory by 2Ph January,2024." T\nq, there is another Proceedings pending in the court of appeal which was lodged on 10th November, 2021. It involves the same parties and touches the subject which is also a subject of the suit before this court; three, proceeding in the court of appeal, Civil Reference No. 12 OF 2024 lodged on 5 19th August,2024. It is found at page 89 of the record annex 9 to the joint written statement of defense. The reference emanates from Civil Application No. 107/02/2024. Part of the document titled certificate of urgency which reads; "I, Ally Omary Abdi, being the applicant herein, do hereby certify that this application is ofextreme urgency on account that the first respondent herein is intending to illegally and without any legal order to change my ownership in Certificate of Title Number 18049, L. O Number165694, Plot Number 30, Block E area F within Arusha Municipality to the 3rd Respondent by any time from now, an act that if not stopped promptly by this court I will suffer irreparable loss and damages." For reasons hereinabove explained, I hold that, the suit before this court is incompetent for the reason that, there are pending proceedings in the Court of appeal involving the parties in this suit touching the same subject matter, to be specific; who is the lawful owner of the disputed property, namely, Certificate of Title Number 18049, L.O Number 165694, Plot Number 30, Block E area F within the Arusha City. The suit is therefore, unarguably, incompetent. I accordingly uphold the preliminary objection and strike out the suit. Considering the circumstances of this matter, I make no order as to costs. 6 Order accordingly. S. J. KAINDA JUDGE 20.11.2024 Ruling delivered in Chambers under my hand and seal of this court this 20th November, 2024 in the presence of Mr. Gwakisa Sambo, learned counsel for the plaintiff and Mr. Innocent Mwanga, also learned counsel, appeared for the defendants. The first defendant also in attendance. Right of appeal fully explained. S. J. KAINDA ' JUDGE 20.11.2024 7