delius evalist andrea vs emmanuel james swazi 3 others 2023 tzhc 20710 1 september 2023

I N T H E H IG H C O U RT O F T H E U N I T E D R E P U B L IC O F TA NZ A N I A ( IN T H E S U B R E G I S T RY O F K I G O M A )

AT K I G O M A LA N D C A S E N O. 3 0 O F 2 0 2 2

D E L IU S E V A L I S T A N DR E A P LA IN T IF F

VERSUS E M M A NU E L J A M E S S W AZ I 1 sr DEFENDANT KIGOMA/UJIJI MUNICIPAL 2ND DEFENDANT COMMISSIONER FOR LANDS 3 RD DEFENDANT THE ATTORNEY GENERAL 4T H DEFENDANT Date of Last Order:24.08.2023 Date of Ruling: 01.09.2023

RULING MAGOIGA, J. This ruling is on the preliminary objection formerly raised by the learned advocate for the 1st defendant that the instant suit is barred by the provisions of Order XXIII Rules 1(1), 2 (b) and 3 of the Civil Procedure Code, [Cap 33 R.E. 2019] for reasons that same was once filed as Land Application No.57 of 2021 in the District Land and Housing Tribunal but was withdrawn without leave to refile, hence, barred by law. The plaintiff by way of plaint registered as Land Case No.30 of 2022 instituted this suit in this court claiming jointly and severally reliefs against the defendants, among others, revocation of Certificate of Occupancy in respect of Plot No.1787 KGLR, LO. 897365, eviction orders and payment of consequential orders, not the subject of this ruling now. 1 U p o n b e in g s e rv ed w ith the p la in t, th e ist defendant filed written statement of defence and simultaneously raised a preliminary objection to the effect that instant suit is barred and urged this court to dismiss this suit with costs. When the suit was called on for hearing of the preliminary objection, the plaintiff was enjoying the legal services of Mr. Elinisadi Samwel Msuya, learned advocate, the 1st defendant had the legal services of Mr. Eliutha Kivyiro, learned advocate and the 2nd to 4th defendants were advocated by Mr. Nixon Tenges, learned State Attorney. Mr. Tenges

remained st spectator of the legal wrangle between the plaintiff and 1 defendant. Mr. Kivyiro arguing the preliminary objection told the court that his objection is pegged on Order XXIII Rules 1(1), 2(b) and 3 of the Civil Procedure Code, [Cap 33 R.E.2019]. According to Mr. Kivyiro, the plaintiff once instituted Land Application No. 57 of 2021 in the District Land and st Housing Tribunal for Kigoma between the plaintiff and the 1 defendant on the same subject matter but on 06.07.2022 the plaintiff withdrew his case without a leave of the Tribunal to refile the same. The learned advocate went on arguing that much as no reasons were assigned, leave sought and granted to refile the instant suit, then, same is barred by law. In support of his stance, Mr. Kivyiro cited Mulla on Civil Procedure Code 16th edition Volume 3 at pages 3154 in which the famous learned author ~ 2 s a id th a t th e p rin c ip le u n de rly in g th e p ro v is io n fo r w ith d ra w a n d a ba n d o n me n t is tha t th e la w c on fe rs u p o n a m an n o righ t o r b e n e fi t w h ic h h e d o e s n o t de s ire . T h e p rin c ip le is n o t b ased o n res ju d ic a ta b u t w ho e v e r a ba n d o n o r d is cl a im a rig h t w ill lo o s e it. F u rt h e r quo ting o n M u lla , the le a rn e d a d v o c a te to ld the C ou rt tha t a t p a ge 315 7 th e le a rn ed a u th o r in s is ted th a t ''if a

party desire to withdraw from the suit having the libe,ty to institute a suit must apply to the court to permit him to do so and if he does not desire to refile, he can do so without leave." On the strength of the above reasons and the fact that the order of withdraw was done without leave, Mr. Kivyiro strongly urged this court to find that this suit is incompetent deserving one order of dismissal with costs. On his part, Mr. Msuya learned advocate for the plaintiff with equal force, vigorously countered the submissions made by Mr. Kivyiro. The learned advocate admitted that it is true Land Application No. 57 of 2021 was withdrawn from the District Land and Housing Tribunal but was quick to point out that the same was made with intention to add 2nd to 4th defendants. According to Mr. Msuya, Mr.Kivyiro had completely missed the import of the Order cited because leave could be sought if the plaintiff ~ 3 w as to go back to the sam e C ou rt/T ribu na l b ut in this case a case w a s filed in this co u rt , hen ce, no necessity of havin g le ave to file a fr esh case . M r. M suya w e nt o n argu in g that m u ch as this is the fi rst tim e this m att er is in stitute d in th is reg istry, the n , the re w as no need o f th e le ave an d all argue d an d cited by M r. Kivy iro w e re argued o ut of ig n o ran ce an d co ntext. Acco rding to M r. M suya, he r cl ie nt is d ray an d

ho m e w ith the law an d co nseq ue ntly urge d th is co urt to ove rrule the o bje ctio n w ith costs. In rejo in de r, M r.K ivyiro rejo in ed that the w o rd ing of the p rovisio n s of the O rde r in w hich the o bject io n is pe gg e d do no t co ntain the w o rd s arg ue d by M r. M suya and m u ch as no leave w as g ra nted the bar e nvisag e d in the O rde r are ve ry cl e ar and re ite rated his ea rlie r praye rs. T his m a rked the e nd o f hea ring of th is ho tly con tested o bjection . T he no b le task of th is co u rt no w is to de te rm in e the m e rits o r othe rw ise of the o bjection . H o w eve r, be fo re go in g into the m e rits o r othe rw ise, I ne ed to po int o ut an d in sisted th at the provisio n s of O rde r XX III R ule 1(1),2 (b ) and 3 of the C PC w as en act ed w ith a pu rpo se to se rve in re spe ct of the w ithd raw al o r adju stm e nt of the suit an d in stitutio n o f fr esh su it, if ne ed be . Fo r easy of refere nce the sa id pro visio n pro vid es: 4 "Order XXIII Rule 1(1)- A t any tim e after the institution of a suit the plaintiff may, as against the all or any of the defendants, withdra w his suit or abandon part of his claim. Rule {2} Where the court is sa tisfied- {a} NA {b} that there are other sufficient grounds for allowing the plaintiff to withdraw to institute a fresh suit for the subject matter of a suit or part of a

claim, it may, on such terms as it thinks fit, grant the plaintiffpermission to withdraw from such a suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of the claim. {3} where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim." Going by the literal wording of the above provisions, generally one cannot fail to grasp the underlying rationale of the above provisions is to allow the plaintiff to withdraw a suit either absolutely or conditional withdraw with liberty upon granted leave to file a fresh suit, on one pa rt, and at t~ 5 s a m e tim e , o n th e o th e r p a rt , c o n fo rm s w it h th e le g is la tiv e p o li cy to p re v e n t end le s s litig a t io n , w a sta ge o f c ou rt 's tim e a n d a b u s e of th e le ga l p roce du re b y lit ig an ts u n le s s lea v e o f th e c o u rt to its s a tisfa ct io n is g ra n te d . N o w w ith th a t in m in d a n d b a c k to the in stan t s u it, a ft e r c o nsid e rin g the c o m p e tin g a rgu m e n ts b y the le g a l tra ine d m in d s fo r p a rt ie s, th e issu e I a m in cl in e d to de te rm in e

is w he th e r th e obje ct io n is m e rite d in th is s uit o r n ot. I h a v e h ad a n o pp o rt un ity to g o th rou g h the o rd e r of th e D is trict La n d a n d H o u s in g T rib un a l s ubje ct of th is o bje ct io n , w h ic h fo r eas y o f re fe ren ce p ro v id e s as fo ll o w s : " Kwa kuwa wakili wa mleta maombi ameomba kuondoa shauri hili; shauri linaondolowa chini ya Kanuni 17 ya Kanuni za Mabaraza ya Ardhi G.N.No.174 of 2003. Imeamriwa hivyo F.Chinuku Mwenyekiti 06/07 /2022." From the above excerpt no doubt that the Application before the District Land and Housing Tribunal subject of this objection was withdrawn under Regulation 17 and not under Order XXIII Rule 1(1), (2)(b) and (3) of the CPC. The said Regulation for easy of reference provides as follows: 6 "Regula tion 17 {1} The applicant may apply to the Tribunal to withdra w his applica tion. {2} The Tribunal may after consideration of the application under sub- regulation {1} allow the applicant to withdraw the application and make orders as to costs, as it deems fit." I am as well alive that the above Regulations were made under section 56 of the Land Disputes Courts Act, [Cap 216 R.E.2019] and the provisions of section 51(2) of the same Act provides that where there is inadequacy in those Regulations it shall apply the Civil Procedure Code. Therefore, much as the Regulations were inadequacy in the

effect of the withdraw or abandonment of the suit, I find that the provisions of the Civil Procedure Code equally apply in this suit. The said sub regulation 2 provides as follows: "Regulations 51{2} The District Land and Housing Tribunal shallapply the Regulations made under section 56 and where there is inadequacy in those Regulations it shall apply the Civil Procedure Code." With the above stance of the law and from the excerpt of the order withdrawing the suit no leave was sought and granted and the plaintiff failed to produce any evidence to show that leave to withdraw the suit was sought and granted by the trial Tribunal. Much as the order did not ~ 7 rec o rd w h a t w as the fo rm a l d e fe ct o r s u ff ici e n t g ro un d a s requ ire d in R e g u la tio n 2 (b ) o f O rd e r XX. III o f th e C P C in th e c irc u m s ta n ces o f th is s u it I fi n d a n d I a m in cl in e d to h o ld th a t, th e p la in tiff e x e rc ised a b s o lu te w ith d ra w w h ic h he c a nno t be a ll o w ed to in s titu te a fr e s h s u it o n th e sa m e c a u se of a ct io n . N o t on ly tha t b u t a lso tha t the p la in tiff h a d le g a l rep re s e n ta tio n a n d it ca n no t b e sa id s h e w as la yw o m a n w h o d id n o t u nd e rs ta nd th e la w . A n o th e r re a s o n I fi n d th is s u it ba rre d in th e c irc u m s ta n c e s o f th is s u it is tha t, th e re

is n o spe c ifi c p ra y e r fo r se e k in g the tria l T ribu na l le a v e to in stitu te fre s h s u it o n the sa m e ca u se o f a ct ion . F u rt h e r reas o n is th a t, the a rg u m e n ts b y M r. M s u y a tha t le a ve w a s to be so ugh t on ly if th e p la in tiff w a s to g o b a ck to the sa m e c ou rt is bu t a m e re a rg u m e n t n o t s u p p o rt e d b y th e w o rd ing o f O rd e r XX. III o f the C P C a n d d o n ot a s su c h c o n v in c e m e o th e rw is e . T h a t s a id a n d d o n e , I a m in cl ined to a g re e w ith M r. Kivy iro tha t the instan t s u it is b a rred a nd s a m e m u s t be a nd is h e reb y d is m is s ed w ith co sts to the 1st defendant. It is so ordered. Dated at Kigoma this 1st day of Septemb r, 2023. -- ---- c---, tA!JHl-lU-A------------:: -- S .M . M A G O I G A

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