land case 27640scanned

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 27640 OF 2023 DR. MEDARD MUTALEMWA MUTUNGI by his Attorney JOYCE REHEMA MUTUNGI.................... PLAINTIFF

VERSUS PETER NSHEKANABO MUTUNGI......................................DEFENDANT

RULING 4h March 2024 & 29th April 2024 L, HEMED, J. The herein Plaintiff, Dr. Medard Mutalemwa Mutungi who is suing under his Attorney, one Joyce Rehema Mutungi presented the instant .Plaint on 13th December 2023. The Plaintiff is suing the Defendant, Peter Nshekanabo Mutungi, for the unlawful survey of the suit landed property known as Plots Nos. 1012 - 1014 Block 'A' Makongo juu. He seeks for the following orders: - "faj A declaration that the land in dispute located at Makongo juu Kinondoni Municipal as clearly described, belongs to the plaintiff. 1 (b) An order nullifying the purported survey of the land and creation of Plots number 1012 -1014 Block A' Makongo juu in the name of defendant. (c) An order that defendant demolish all structures put on the land and plaintiff take vacant possession of the land. (d) Defendant be ordered to pay general damages... (e)-" The defendant disputed the claim alleging that the loan agreement entered between them permitted him to survey the suit landed property. The defendant also raised a preliminary objection on two points of law as follows: - "Z This matter is resjudicata vide Land Case No. 74 of 2018 concluded on 23rd October 2020. ii. This court is an abuse of the court process to failure to comply with court order's Directives in Land Case No. ■ -■ 74 of 2018 dated 23d October 20220." The preliminary objection has been argued by way

of written submissions. Mr. Joseph Rutabingwa, advocate acted for the Plaintiff 2 while the Defendant enjoyed the service of Mr. Benjamin Mwakagamba, learned advocate. I have gone through the rival submissions and opted to start with the 1st limb of objection. The defendant's objection that the instant suit is resjudicata is premised on the judgment of this court in Land Case No. 74 of 2018 (Hon. I. Maige, J. - as he then was). In view of the defendant's advocate the instant case is directly and substantially the same as Land Case No. 78 of 2018 and hence contrary to section 9 of the Civil Procedure Code [Cap 33 RE 2019]. To the contrary, the Plaintiff's advocate was of the view that the current matter is not resjudicata because Land Case No. 74 of 2018 was never determined conclusively on merit and or to its finality as the same was struck out. I have examined the records of Land Case No. 74 of 2018 and fQUflfl that, in its decision the court did struck out both the Plaint and the counter claim for being filed prematurely. The court observed thus: - "Indeed, both the plaint and counter claim are premature for want of registration of the instrument at issue. They are therefore, struck out without an order as to costs. Either of the parties 3 can initiate afresh suit upon registering the agreement,underdiscussion". [Empasis added] The order to strike out both the Plaint and the

counter claim did not have the effect of barring subsequent suit on the same subject matter. Besides, the court gave permission to parties to initiate a fresh suit upon registering the agreement. This being the case, I find that this suit is not resjudicatato Land Case No. 74 of 2018. The point on resjudicataXs hereby overruled. The 2nd limb is that this matter is an abuse of the court process for failure to comply with court's directive in Land Case No. 74 of 2018 dated 23rd October 2020. The basis of objection is that the Plaintiff has filed the' instant case without complying with the order to register the agreement. I have perused the Plaint and found that, in paragraph 15 the Plaintiff has pleaded as follows: '75 The plaintiff thereafter opted to register the loan agreement with the Registry of Documents but registration was declined on the ground that the loan agreement was no longer valid as it had already expired in September 2016..." '"" ''" 4 The above paragraph shows that the Plaintiff attempted to register the said agreement but the authority refused on the ground that the said loan agreement was no longer valid. In my view paragraph 15 of the Plaint provides facts that show the efforts taken by the Plaintiff to register the Agreement. After all, the question of registration of the said agreement is a matter of fact which requires adducial of evidence. In my opinion, it is premature to determine it at this stage. The 2nd limb of objection has no merit as well. In the final analysis, I find all points to have no merit. They are both overruled. Each party to bear its own costs. Order accordingly. _ DATED at DAR ES SALAAM this 29th April 2024. 5