farida seif vs equity bank tanzania limited 2021 tzhccomd 3411 23 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE. NO. 56 OF 2021 FARIDA SEIF..................................................PLAINTIFF VERSUS ^X EQUITY BANK TANZANIA LIMITED... J^;^XdEFE^DANT Date of Last Order: 12/11/2021 \X \\ Date of Judgment: 23/11/2021 . \X>^XX V RULING NANGELA, This^^briefjuljpg in respect of an issue which cropped:out\offsubmissions made by the parties herein. By (way of\a> Background, this case was filed by the Plaintifkpiaying for judgment and decree against the Defendant as follows: 1. A declaration that the State Oil Tanzania Limited who is not a party to the suit herein, has fully paid and satisfied the banking facilities dated 22nd March 2017, 30th June 2017 and 16th October 2017, to which the Plaintiff Page 1 of 9 mortgaged Plot No. 261, EX- DAYA Estate, Title No.186205/38, located at Ilala Municipality, in Dar-es-Salaam. 2. A declaration that, the Defendant has breached a mortgage deed by failure to discharge and release title deed on Plot No. 126, Ex-Daya Estate, Title No.186205/38, located ^Ilala’ 16th \©ctober'X2017^ which the ^Plaintiff^ag^guarantor. ■^3?^An^order . to the Defendant to /discharge^and release title deed /Z M\\xon Plot No.126 EX-DAYA \k y ESTATE, Title No.186205/38, located at Ilala Municipality, in Dar-es-Salaam. 4. General damages to be assessed by this honorable Court; 5. Costs of this suit and 6. Any other relief the Court deems fit to grant. The case went through the pre-hearing stages up to mediation. However, the mediator found it Page 2 of 9 impracticable to proceed with the mediation and, accordingly, reverted back the case file to the trial judge under rule 36 of the High Court (Commercial Division) Procedure Rules, G.N. No.250 of 2012 as amended by GN.No.107 of 2019. On the 1st of November 2021, Mr.Edwin Nkalani, learned advocate appeared for the Plaintiff while Mr Dilip Kesaria appeared for the Defendants Mr Nkalani \\ x prayed for a short adjournment to findiout whetherthe decision of this Court issued in CommerciarCase No.105 - \\ V7 ' of 2020 (Hon. S.M Magoiga,<J.p)shadKany\implication on the present suit, and, if^o,to,address the Court appropriately. For his part) Mr.Kesaria.'supported the prayer. He submitted tfiat, hedid appear as a legal counsel for the ''Ox Defendar&i the said'Commercial Case No. 105 of 2020, and/the<wrt^as already passed a judgment requiring theidischara^iand release the title deed of the Plaintiff's \x if propdrt^which is the subject matter of this suit as well. On the basis of the above developments, I granted the prayer for adjournment and set this suit for orders on 12th day of November 2021 at 9.00am. On the material date, Mr Nkalani appeared for the Plaintiff while Mr Zacharia Daudi appeared for the Defendant. Mr Nkalani told this Court that, upon perusal and reading of the judgment of this Court in Commercial Page 3 of 9 Case No. 105 of 2020, the Plaintiff was of the view that, this matter before me should proceed to its final determination. He thus prayed to proceed to its final pre-trial conference. For his part, however, Mr Zacharia was of a different view. He contended that, the matter is either res-judicata or res-subjudice. He held that view on the basis of the fact that, the orders sought^iqthe Plaint were already dealt with by this Courttin Comme'rbial Case No. 105 of 2020. He submitted, therefore>ithat?®his-sCourt cannot seat twice and adjudge^on^th'e^same^issues already determined in Commercial Casf^No.105 of 2020. In the u yy yy alternative, he prayedKthat, either the matter should be /J stayed as the.Defendants~irrthe said Commercial Case * No.105 of2020,) intentf-to appeal to the Court of Appeal or thStrfhis's^iF^^dismissed with costs for being res- (( v> judicata. \ \ v \\ fe • rfe’riC&itended further that, even before its institution, the Plaintiff's advocate was readily made aware of the pendency of the said Commercial Case No.105 of 2020, and the similarities of the case he was intending to file, which is the case at hand. He referred to this Court paragraph 11 of the Plaint and its annexes. Having heard from the parties, I reserved my ruling to this date, so that, I may also go through the Page 4 of 9 judgment of this Court in Commercial Case No, 105 of 2020. I have had time to read the judgment of this Court in Commercial Case No.105 of 2020. Without going to its details, even if the Plaintiff herein was not a party to that case, it is clear that, the Plaintiff's mortgaged Property described as Plot No. 261, Ex-Daya Estate, Title No.186205/38, located at Ilala Municipality, in Dar-es-Salaam, which is XX the subject of the declaratory ordersXas well. asSthe discharge and release order so'uqht'\byZthe>Plaintiff herein above, were essentially^be^sameXbrders sought in respect of the said Commercial Case No.105 of 2020. & .. XX In particular, inVthatzcas^e, the Plaintiff, State Oil Tanzania Ltd (as<theAPlaintiff), sought for judgment ZZKX XX . and decree against the-Equity Bank Tanzania Ltd andZEquity \Kenya^ Ltd (both as Defendants) as follows, among others: "(a) A declaration that the Defendants have breached three banking facilities which Defendants advanced to the Plaintiff, the first one dated 22nd March 2017, the second one dated 30th June, 2017 and the third one dated 16th October, 2017. Page 5 of 9 (b) A declaration that, the Plaintiff has fully paid and satisfied the three banking facilities dated 22nd March 2017, 30th June, 2017 and 16th October, 2017. (c) An order to the Defendant to discharge and release title deeds to the Plaintiff for the following collaterals: (i)..., (in)..., (iii)x., (iv) Plots 4484, 261 and 270K EX-DAY Ilala Par-es-sfTaam.^. (EmphasisAddedjxX (d) to (r) (not V In the course of hiring anchdetermination of the said Commercial Case No-105/of 2020, this Court U 4^3/ (Magoiga J.,) gave judgment apd decree in favour of the Plaintiff (State Oit'Tahzania Ltd) and made orders (amongothers), a declaration that: 1. The Plaintiff (State Oil), ^according to exhibits, fully paid and discharged the banking facilities dated 22nd March 2017, and 16th October 2017. 2. As such, the 1st Defendant (Equity Bank Tanzania Ltd) is ordered and directed to discharge mortgages and release title deeds to the Plaintiff of all landed properties Page 6 of 9 mortgaged to the 1st Defendant." From the above excerpts, which are taken from the Judgment of this Court in Commercial Case No.105 of 2020, it is clear to me that, the title deed in respect of Plot No. 261, Ex-Daya Estate, Title No. 186205/38, located at Ilala Municipality, in Dar-es- Salaam, which is the same as the on forming the core of this claim in this suit, was in principle«^^Bte^byH:he Orders of the Court issued by Magoigax)., iirCommercial Case No. 105 of 2020. Consequently, this ca^^hpotproceed further to its end while an ordered which affects the very thing that forms its backbone, whichjs>the release of the said Z< \X )) title deed, had^already^been obtained in Commercial Case Norf.O5>X)f 2020a The Plaintiff herein should, \\ JL__ '</ consequently/approach State Oil Tanzania, and obtain /Z v\\X from her thexsaid title deed, unless it is contended that the Defendant has refused to discharge and release that particular title deed after the orders of this Court were issued in Commercial Case No.105 of 2020. In the upshot, I do not agree with Mr. Nkalani that, the decision of this Court in Commercial Case No.105 of 2020 did not have a direct effect on this case. It did as it discharged and released the same subject matter sought to be discharged and released to the Page 7 of 9 Plaintiff herein, i.e., the title deed in respect of Plot No. 261, Ex-Daya Estate, Title No.186205/38, located at Ilala Municipality, in Dar-es-Salaam. I should also state that the issue is not even whether the suit is res-judicata or not, but that, since there has been an effective order that required the release of that same Title Deed to State Oil Tanzania Limited, this same Court cannot give twosbrders of the same effect on the same property <as^thac1s\akin> to being tautological. It follows, therefore, 'tKat>-,thiS\suit should be A struck out as the orders sought to'be granted have been obtained in Commercial Case\Ng.l'O5 of 2020, which include and order requirin^the^r1 Defendant (who is also the Defendaht^h^rein^sfo^discharge and release the title deedjh respect oftPlot No. 261, Ex-Daya Estate, Titlej;No>l'8620573871ocated at Ilala Municipality, in Dar- es-Salaam. i^note/ as well, that there was a counterclaim raised by the Defendant herein. However, looking at it, the same cannot as well stand for the same reasons. I will proceed to have it struck out as well. It follows, therefore, and, for the reasons stated here above, this suit, together with the counter claim raised by the Defendant, is hereby struck out, and, Page 8 of 9 considering its circumstances, I make no orders as to costs. It is so Ordered DATED at DAR-ES-SALAAM, this 23rd DAY OF l!s» Page 9 of 9