Farmgreen Implements and another v

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA AT BABATI LAND APPEAL NO. 17012 OF 2024 (Arising from the decision of Manyara District Land and Housing Tribunal in Land Application No. 52 of 2022) FARMGREEN IMPLEMENTS (T) LTD......................................... APPELLANTS PREMIUM SUPPORT CO. LTD………………………….……..…… VERSUS YAHAYA MOHAMEDI MSUYA……………………………………….. ISARIA MELEKI…………….……….………………………………. RESPONDENTS AMIRI MSANGI…………………….…………………………………. JUDGMENT 5th and 29th November 2024 MIRINDO, J.: On 5 December 2018, the Farm Green Implements (T) Ltd and the Premium Support (T) Ltd (the first and second appellants) respectively sued Yahaya Mohamedi Msuya and Isaria Meleki (the first and second respondents) before Manyara District Land and Housing Tribunal in respect of a breach of a tenancy agreement of a business room situated at Plot No. 15 at Katesh Bus Stand within Hanang’ District. In the first case, registered as Land Application No 78 of 2018, the first appellant claimed that the first and second respondents terminated the tenancy agreement, prevented it from 1 doing business and locked its farm implements inside the business room. The first and second respondents denied liability and counter-claimed against the first appellant. The counter-claim was struck out on 15 September 2021. On 2 March 2021 the Land Application No. 78 of 2018 was struck out with costs for want of prosecution owing to the non-appearance of the first appellant. In the second case, registered as Land Application No. 79 of 2018, the second appellant sued the first and second respondents for breach of a tenancy agreement of the same business room because they took control of the business room, prevented the second appellant from doing business and locked its stationery materials inside the business room. This case was struck out on 27 May 2021 for want of prosecution. The appellants subsequently instituted a fresh land action before Babati District Land and Housing Tribunal. They sued the third respondent, one Amiri Msangi, and the first and second respondents in respect of the breach of the tenancy agreement of the same business room with original claims now combined in one suit and seeking the same reliefs. The case was registered as Land Application No 52 of 2022. In defence, the first and second respondents objected to the suit on the principle of res sub judice. The objection was argued by way of written submissions and the respondents surprisingly argued the objection on the grounds of res judicata. At the end the Tribunal upheld the objection on the principle that the appellants should have applied to set aside dismissal order under Regulation 11 (2) of the Land Disputes Courts (the District Land and Housing Tribunal) Regulations, GN No 174 of 2013 2 After various attempts to appeal, the appellants finally obtained leave of the High Court at Babati to appeal out of time and filed their appeal. Before the High Court the appellants have been represented by the learned Advocate, Mr. Festo Jackson, the first and second respondents appeared in person but the third respondent defaulted appearance. The appeal was argued by way of written submissions. In their joint reply, the first and second respondents stated that the appeal was accompanied by an incompetent decree which they left unelaborated. I did not anything defective worthy of attention for consideration by this Court. In the first two grounds of appeal, the appellants criticise the trial tribunal for holding that the suit was res judicata given that the Land Applications Nos. 78 and 79 of 2018 were not conclusively determined. Mr. Jackson, learned Advocate pointed out that as the main issues in those two cases were not determined, there was neither judgment nor decree pronounced by the trial tribunal. He concluded that there was no foundation for the plea of res judicata. The first and second respondents maintained that the suit was “dismissed” in the light of Order 9 Rule 6 (1) of the Civil Procedure Code [Cap. 33 R.E. 2019] that bars the plaintiff from bringing a fresh suit following the dismissal of the suit but authorises the plaintiff for setting aside the dismissal order. As I stated earlier, the objection before the Tribunal was premised on the plea of res sub judice but was unexpectedly changed to one of res judicata. As the appellants never objected to this course of action before the trial tribunal and in the instant appeal, I make no further comments. 3 It is common ground that the previous suits were dismissed for want of prosecution. The only question in dispute is if the dismissal amounted to a decision amounting to res judicata. The appellants’ arguments are that they did not amount to decisions constituting res judicata. The respondents’ thinks the opposite. To constitute res judicata, a decision must be on merits. In Mariana Guest House Ltd v Zahara, Civil Appeal 51 of 1998, Court of Appeal of Tanzania at Dar es Salaam, the appellant applied to a regional housing tribunal for, among other things, vacant possession of its commercial premises from the respondents who were at the material time its tenants. The application was successful. However, on appeal to the housing appeals tribunal the appeal was allowed on the ground that the application before the regional housing tribunal was wrong because the appellants had not served the respondents with notice to vacate. The appellants, after apparently serving notice to the respondents made another application seeking for the same relief of vacant possession. The respondents contended that the second application was res judicata. The Court of Appeal held that the application was not res judicata because the decision, being not on merit of the controversy, was not final. I will now examine more closely the nature of the decisions arrived at in by the trial Tribunal. The Land Application No. 78 of 2018 was struck out on 2 March 2022 because the first appellant’s counsel failed to appear on the scheduled date. It is clear that this was not a decision on merit. The Land Application No. 79 of 2018 was dismissed on 27 May 2021 because the second appellant failed to produce a witness. This too was not a 4 decision on merit. Thus, neither decision was on merit as to constitute a plea of res judicata. Both orders raise important questions on the effect of dismissal of a land case due to non-appearance at the adjourned hearing. The Land Disputes Courts (the District Land and Housing Tribunal) Regulations have two set of rules regarding non- appearance. Regulation 11(1) (b) authorises the District Land and Housing Tribunal to dismiss a land case where the applicant had notice of hearing or was present when the hearing date was fixed and defaults appearance without good cause. Under Regulation 11 (2), the applicant is at liberty to set aside the dismissal order within thirty days from the date of the dismissal. Again, Regulation 13 (2) that authorises a District Land and Housing Tribunal to dismiss a case where a party’s advocate defaults appearance without good cause or proof of appearance before the High Court or the Court of Appeal unless the party agrees to conduct the case by itself. The acceptable evidence that the advocate was appearing before the High Court or the Court of Appeal is a proof from the cause-list and summons from those courts. This is the essence of Regulation 13 (3). The Tribunal has no power under Regulation 13 (4) to set aside its dismissal order but the aggrieved party has a right to appeal to the High Court. In both Land Applications, the appellants were represented by advocates. The first appellant who was the applicant in the Land Application No. 78 of 2018 was represented by Advocate Musa John Chemu until when the first appellant’s witness testified on 15 September 2021. Hearing was adjourned to 3 and 4 November 2021. 5 Although Advocate Chemu and the second respondent were present, there was no continuation of the hearing due to the illness of the first respondent and the absence of one of the assessors. The case was adjourned to 5 and 6 January 2022 and when it was called for hearing in the presence of Advocate Chemu and both respondents, Hon. Mwihava noted that the presiding chairman, Hon. Mdachi was absent.The matter was further adjourned to 26 January 2022. On that date both parties appeared before Hon. Mwihava but an officer of the first appellant sought for adjournment on account of illness of his advocate. The hearing was adjourned to 2 March 2022 to which the first and second respondents appeared but neither the first appellant nor its advocate appeared. On 2 March 2022, Hon. Mwihava upheld the first and second respondents’ complaint that the first appellant had been defaulting appearance and struck out the case. It is clear to me that the circumstances in the Land Application No. 78 of 2018 brings it within the ambit of the provisions of Regulation 13 as there is nothing to suggest that the first appellant sought to conduct the case in the absence of Advocate Chemu. The second appellant who was the applicant in the Land Application No. 79 of 2018 by Advocate Godwel Lawrence and Advocate Musa Chemu. On 4 November 2021 the case was first set down for hearing on 27 January 2021 in the presence of Advocate Chemu and in the presence of both respondents. For undisclosed reasons hearing did not take place on the scheduled date even though the second respondent was absent and Advocate Chemu and the first respondent were present. The case was then set down for hearing on 27 March 2021. Hearing did not take place apparently because 6 both parties were absent and it does not appear that the Chairperson was present. The matter was adjourned to 28 April 2021. On that date Advocate Natujwa Bakari held brief on behalf of advocate Mussa John Chemu and sought adjournment because Advocate Chemu was attending a case at the High Court at Dodoma. Hearing was adjourned to 27 May 2021 and on this date, there was another excuse for non- appearance of the second appellant’s counsel. Advocate Natujwa Bakari holding brief on behalf of Advocate Godwel Lawrence informed the Tribunal, Advocate Lawrence was appearing before the High Court at Tabora in an application for bill of costs. The Tribunal observed that according to the proceedings of 28 April 2021 the second appellant was being represented by Advocate Chemu and there is no reason why Advocate Chemu and the second appellant defaulted appearance. Without much ado, the Tribunal dismissed the case for failure to produce a witness. It follows that the Land Application No. 79 of 2018 was dismissed under Regulation 13 (2). In both cases, the statutory remedy for the appellants was to appeal to the High Court under Regulation 13 (4). The appellants did not do so and opted to institute a fresh action, the subject of this appeal. The question before me is whether the appellants were entitled to institute a fresh suit instead of appealing to the High Court. In considering this question I would like to draw an analogy from the provisions of Order 9 Rule 6 (1) of the Civil Procedure Code [Cap. 33 R.E. 2019] relied on by the first and second respondents that the fresh suit was unmaintainable as the appellants should have applied to set aside the dismissal order. The general rule is that the plaintiff cannot bring a fresh suit dismissed for defaulting appearance save for a 7 different cause of action. This exception is elaborated in Mulla: The Code of Civil Procedure, 18th edn, Vol. 2, Haryana: Lexis Nexis, 2013, at pp. 1986-1987 where it has been emphasized that the bar applies to identical, and not different, causes of action in respect of Order 9 Rule 9 of the Indian Civil Procedure: Where the cause of action is the same in both the suits, the bar under this rule cannot be avoided by a mere change of reliefs…In considering whether the cause of action in the subsequent suit is the same or not as the cause of action in the previous suit the test to be applied is; are the causes of action in the two suits in substance- not technically-identical. The term “cause of action” is to be construed with reference rather to the substance than to the form of action…It has been observed that the words “cause of action” in this rule should be narrowly construed, as it bars the party from enforcing his rights in a court… To illustrate, if A sues B for damages for breach of a contract, and the suit is dismissed for default of A’s appearance, A cannot bring a fresh suit to recover damages for breach of the same contract. A’s remedy in such a case is to apply for a review, or to apply under this rule for an order to set aside the dismissal. But if the cause of action in the subsequent suit is different from that in the first suit, the subsequent suit will not be barred under this rule. Adopting the same reasoning, an applicant before a District Land and Housing Tribunal whose application has been dismissed for defaulting appearance through counsel may choose not to appeal to the High Court by prosecuting a fresh case based on a different cause of action. The facts in the instant case show that in both Land Applications Nos. 78 and 79 of 2018 the first and second respondents pleaded that the appellants had no cause of action against them because there was misrepresentation by one Amiri Msangi. Amiri 8 Msangi is the third respondent in this appeal but he was not a party in the previous land applications. Having met legal snags in Land Applications Nos. 78 and 79 of 2018, the appellants brought Land Application No 52 of 2022. They combined the causes of action and reliefs premised on the tenancy agreement of the same business room situated at Katesh Bus Stand but added Amiri Msangi as the third respondent. I have come to the conclusion that the causes of action are identical to those in Land Applications Nos. 78 and 79 of 2018, and the appellants remedy is to appeal, which I think is still open to them, if they can mount a fruitful application for extension of time to appeal beyond the prescribed time. Hence, I dismiss the appeal. As the legal issue that finally disposed this appeal was not meaningfully brought to the attention of the Court, I make no order as to costs. DATED AT BABATI this 29th day of November 2024 F.M. MIRINDO JUDGE COURT: Judgment delivered in chambers this 29th day of November 2024 in the presence of the appellants’ counsel Mr. Festo Jackson and in the presence of the first respondent and in the absence of the second and third respondents. B/C: Ms. Anna Mathayo present (RMA). Right of appeal explained. 9 F.M. MIRINDO JUDGE 10