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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SAALM LAND CASE NO. 4022 OF 2024 PLAINTIFF FRANKLIN PETER LAUWO VERSUS DEFENDANT GENOVEVA NDELIMBI MURO 2ND defendant LETSHEGO BANK (T) LTD BILO STAR DEBT COLLECTOR CO. LTD 3““ DEFENDANT RULING Date of Last Order: 17/0d/202d Date of Ruling: 31/05/2024 S. D. MWAIPOPO, 3 This is a ruling in respect of the preliminary objections raised by the counsel for the 2"'* Defendant to the effect that; I. This court has no jurisdiction to entertain this suit because previously the Plaintiff institued in this court Land Case No. 29/2023 which was dismissed on the 20/06/2024 for non appearance of the Plaintiff herein hence it is substantially res judicata. II. The matter has no merit since it disobeys the mandatory provision is the law. iii. The plaintiff herein abuses the court process. 1 The hearing of the preliminary ejections proceeded by way of written submissions pursuant to the time table ordered by the court and both parties were represented. Arguing in support of the preliminary Objections, the learned counsel for the 2""^ Defendant began by submitting on the first and third preliminary objections together. He contended that the suit is substantially res judicata and the rationale of the doctrine of res judicata is found on the two latin maxims which are mirrod under section 9 of the CPC RE 2019 as follows; i. Interest rei publicae ut sit finis litium, which means; the interest of the public requires that there must be an end to litigation;and ii. Nemo debet bis vecali si constant curiae quod sitpro una et eadem causa;which means; no man should be twice sued upon one and the same set of facts, if there has been a final decision of a competent court. The learned counsel contended that the instant suit traces its way back in 2023 when the Plaintiff and the first defendant filed land case No. 92 of 2023 against the second and third Respondent herein and the same was dismissed on 20/06/2023 by Hon. Msafiri J for non appearance of Plaintiffs for three consecutive sessions. The Plaintiff instead of filing an Application for setting aside the dismissal order, has decided to knock the door of this court with a fresh suit against the defendants by exchanging parties by moving the first Plaintiff in the previous case to be the 1st Defendant in the present suit and the second and third defendants remain the same under the same cause of action. He argued that section 9 of the CPC bars courts from entertaining a suit which has already been determined by a court of competent jurisdiction That land case between the same parties and the same cause action. no 92/2023 was determined on merit on 20/06/2023 after being dismissed for want of prosecution. He argued that the court is therefore functus officio. The object of the doctrine of res judicata is to bar the multiplicity of suits and guarantee finality to litigation. The learned counsel further submitted that this section had judicial interpretation in the case of Peniel Lotta V. Gabriel Tamaki and two others. Civil Appeal No. 61 of 1999 (unreported) where the court ruled that there are 5 conditions for the matter to be res judicata as per section of 9 Civil Procedure Code. It was stated as follows; The scheme of section 9 therefore contemplates five conditions which when CO exist will bar a subsequent suit. The conditions are; I. The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit. II. The former suit must have been between the same parties or privies claiming under them iii. The Parties have litigated under the same title in the former suit IV. The court which decided the former suit must have been been competent to try the subsequent suit V. The matter in issue must have been heard and finally decided in the former suit. With regard to the first condition, the iearned counsei for the second defendant contended that in order to deal with this condition, the court should compare the cause of action in the former and current case. He reffered the court to the case of Badugu Ginning CO. Ltd Vs. CRDB 265 of 2019, CAT at Bank PLC Civil Appeal No. Mwanza(iinreported) page 19, where the court held that; The law is accordingly well settled that to invoke the bar of res judicata. it is not necessary that the cause of action in the two suits should be identical. It only requires that the matters are directly and substantially m issue and should be the same in both suits. Every matter in respect of which relief is claimed in a suit is necessarily a matter directly and substantially in issue. In the current appeal, it all started with a loan advanced to the appellant by the 1st Respondent which the appellant failed to service. As a result, her mortgaged property(disputed property) had to be sold by the first respondent. The sale of the said property was preceded by the Settlement Agreement between the Appellant and the Respondent which eventually was registered by the High Court and became a decree. He further argued that the cause of action in this case is breach of loan agreement advanced to the Plaintiff in 2019 as per paragraph 05-09 of the Plaint. The same cause of action was claimed in the civil case no 92/2023 which was before this court between Genoveva Ndelimbi Muro & Franklin Peter Lauwo Vs Letshego Bank (T) LTD & Bilo Star Debt Collectors Co. Ltd as witnessed in their Plaint. The learned counsel submitted that the doctrine of res judicata is there to preclude multiplicity of suits. A person cannot institute and claim of one aspect alone on breach of contract then after finalisation that case, institutes another suit over the same aspect of breach of contract. The learned counsel reffered the court to the case of Esther Ignas Luambano Vs. Adriano Gedam Kipalile, Civil Appeal No. 91/2014 to drive a point home that the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject reasonable matter of litigation and which the parties exercising diligence, might have brought forward at the time.The subject matter in the suit must be covered by the previous suit, for res judicata to appiy. Moving to the second condition, the iearned counsei contended that the former suit must have been between the same parties or privies claiming under them. He contended that the parties in the current suit are the same parties which were in previous suit therefore these are the same parties within the meaning of the doctrine of res judicata irrespective of the change of positions of the parties and that the interchange does not change the dispute or parties in the suit. He referred the court to the case of Badugu Ginning Co. Ltd V. CRDB Bank (supra) pg 24 & 25. Regarding the third condition, the learned counsel submitted that parties must have litigated under the same title in the former suitHe argued that since the Plaintiff sued the defendant in the same capacity for breach of the same contract, it entails the same title irrespective of the exclusion of some parties as pointed out in Badugu ginning(supra) Moving to the fourth condition, i.e. the court which decided the former suit must have been competent to try the subsequent suit. The learned counsel argued that, the former suit was determined by the High Court Land Division at Dar es salaam before Hon. A Msafiri. That the Plaintiff has been very tricky to change the parties as the 1st Plaintiff in the previous case and shift her to the 1st Defendant in the current case in order to trick the court as to the genuiness of the suit. This kind of practice should not be tolerated as it will cause delays in dispensing justice.The Palintiff and the first Defendant being loan defaulters are just using the court of law as shelter to hide themselves from repaying the loan as agreed in the Deed of Settlement which emanated from the Loan Agreement that is being challenged. Regarding the fifth and last condition which is to the effect that the matter in issue must have been heard and finally decided in the former suit, the learned counsel argued that the matter was dismissed by Hon. A. Msafiri J on 20/06/2024 for non appearance of the Plaintiffs thus it was finally determined. In the case of Clara Mathias Kwilasa v. EFC Tanzania Microfinance Bank Ltd & Others, Land Case No. 143 of interms of 2020, held that; not all dismissals entails res judicata,but Order IX Rule of Civil Procedure Code CAP 33 RE 2019, the court's hands are tied.In that regard the suit is res judicata and renders the court to be funtus officio. Therefore, he contended that the matter wa finally decided from the moment it was dismissed for want of prosecution by the High Court and the same was finally decided. He further prayed for the court to take judicial notice under section 59(l)(d) of the Evidence Act Cap 6 RE 2019 and rule that the case is res judicata as all the requisite conditions for this doctrine have been met. With regard to the second preliminary objection, that is the suit contravenes mandatory provisions of the law. The learned counsel conteded that following dismissal of the matter by Msafiri J, the Plaintiffs were supposed to appiy for setting aside the dismissal and not to file a fresh suit by exchanging parties. The iearned counsel refferd the court to order IX rule 6(1) of the CPC Cap 33 RE 2019 and the case of Clara Mathias Kwilasa v EFC Tanzania Micro Finance Bank Ltd and Others (supra). He thus prayed for the matter to be dismissed. Submitting in rebuttai, the learned counsel for the Plaintiff stated that; in the notice of preliminary objection fiied together with the written statement of defence the 2"'* defendant raised three preliminary objections to the effect that; a) The suit is substantiaily res-judicata. b) The suit disobeys mandatory provisions of iaw and c) The plaintiff herein abuses the court process. The learne counsel submitted that one rhay note that the raised points of preiiminary objections are incomplete as no reference was made to any case in the notice and therefore it is difficuit to know which case was compared to the instant case as the purpose of notice of the preliminary objection on res judicata is to enable the court to make a comparison of previous case to the case at hand. He then proceeded to reply to the second defendant's submissions by contending that, on the 2"'“ May, 2024, the 2"'“ defendant filed before the court a ten-page submission plus annexed authorities. Having carefully gone through the submissions he has reached a conciusion that the 1=‘ to 9* pages of the 2"^ defendants submissions contain much of iegal position and authorities on the legai doctrine of res judicata. He has also noted that the 2"“ defendant has neither submitted separately nor offered any explanations on the 2"^ limb of preliminary objection, therefore he invites this court to overrule the same as the 2^^ defendant has failed to submit on this point and doing it in a rejoinder will violate the Plaintiff's right to be heard. He thus invited the court to disregard any rejoinder which is based on the second limb of preliminary objection. In replying to the submissions in chief, the learned counsel combined the first and second preliminary objections as argued by the learned counsel for the second Defendant. He submitted that in the first page of the second defendants submissions, on the 2^^^ paragraph, it is stated that the case before the court is res judicata to Land Case No. 29 of 2023 which was dismissed on the 20/6/2024, same date is featured at page no. 7 of the 2""* defendants' submissions. He contended that this is a misleading statement and contain falsehood since it is only in May, 2024 and the second error is with regard the reference made to Land case No. 29 of 2023 which is non existent. He wondered how the 2"^ defendant wants to delay the determination of the case before the court on merits. Further, in the 2'^^, 3''^ and 8^^ pages of the 2"^ Defendant's submissions, he has noted that the 2""^ defendant contrary to what he submitted in the page, has reffered about Land Case No. 92 of 2023 and at page No. 4 of submissions he stated that the case before the court is res judicata to Civil case No. 92/202 (sic). He argued that, be it Land case No. 29 of 2023 or Land Case No. 92 of 2023 or Civil Case No. 92/2022 (sic) none of those case are qualified to bar this honourable court from determining on merit Land case No. 4022 of 2024 which is before the court. He argued that the instant Land case No. 4022 of 2024 has not offended section 9 of the Civil Procedure Code Cap 33 RE 2022. The 2nd Defendant in the last paragraph of page number 2 of their submissions stated that the plaintiff and the defendant filed land case No. 92 of 2023 which was dismissed for want of prosecution on 20/6/2023 before Hon. A. Msafirl and that the plaintiff did not apply for restoration of Land case No. 92 of 2023 and exchanged the parties In the instant case. He emphasized that the conditions for res judicata have not been met. He invited the court to trace the file of Land Case No. 92 of 2023 in the court, and will find out that of which parties are different with parties in this case, cause of action and when it arose are quite different as in the instant case and that the whole cause of action is on breach of mortgage Deed between the parties and the mortgage Deed was not the subject matter in the previous case. He submitted that looking at page number 4 of the 2nd Defendant's submissions, the 2""^ defendant stated that paragraph 05 - 09 of the plaint is on breach of loan agreement. He was of the view that the 2^^^ defendants did not understand well the contents of paragraph 5 up to 9 of the plaint. He argued that, the whole subject of the plaint is on breach of mortgage Deed (See paragraph 10 of the plaint). Similarly, the learned counsel contended that, the rhetorical question which is raised at page number 5 of the 2^“^ Defendants submissions is irrelevant as there is no any single line in the plaint which has pleaded on breach of the loan agreement. The Plaintiff was not privy to the Agreement and has never borrowed and his dealings with the 2nd defendant are based on mortgagor-mortgage relationship and not borrower- lender relationship. He asserted that, since the 2"*^ defendant has failed to show how that the alleged Land case No. 92 of 2023 or Land case No. 29 of 2023 or Civil case No. 92 of 202 is founded on the breach of mortgage Deed or how the two cases are similar and how the present case offends section 9 of the CPC Cap 33 RE 2022. He emphasized that this court has jurisdiction to determine this case on merits. In conclusion, the learned counsel argued that; the 2“^^ defendant has also failed to show whether the plant in this case is same as plant in the alleged three different dismissed cases for want of prosecution, so that this court could direct the Plaintiff to go for process of applying to set aside the dismissed order. He submitted that, the cited authorities and legal maxims cannot help the 2"^ defendant as the case before the court is not on res judicata and the mortgagee has properly filed this suit. He invited the court to overrule the raised points of preliminary objection with costs as they were raised and argued without any basis and justification. In rejoinder the learned counsel for the Plaintiff reiterated his submissions in chief.In particular the learned counsel clarified on the correct numebr of the case which was dismised as case number 92/2023 and that the same was dismissed on 20/06/2023 and not 2024. I shall not reproduce all the submissions but will make reference to them as appropriate, in the course of my analysis. 10 Having gone through the submissions of the parties, the centrai question to be resoived is whether the preiiminary objections raised have merit. However, before I embark into the anaiysis of the preiiminary objections, I have taken note of the submissions of the parties regarding the correct number of the case which was previousiy dismissed and observed that in his rejoinder, the iearned counsel for the 2"'* Defendant, in responding to the submissions of the learned counsel for the Plaintiff addressed or clarified that the correct number of the case is 92/2023 which was dismissed on 20/6/2023 and not in 2024.Therefore, since the said number has also been reffered in the submissions of the 2"" defendant and is not being reffered in the instant case for the first time and considering the doctrine of overriding objective enshrined under section 3A and 3B of the CPC RE 2019, this court has allowed the corrections done by the learned counsel and will thus make reference to the case no. 92/2023 which was dismised as corrected by the learned counsel for the 2nd Defendant. Having meticulously reviewed the submissions of the parties I agree with the submissions of the learned counsel for the 2"'' Defendant that the doctrine of res judicata is founded on two latin maxims which mirror the provisions of section 9 of the Civil Procedure Code which provide for conditions for a case to become res judicata. Further, the concept of res judicata was given its judicial consideration in the case of Peniel LoLLLa (supra) where the court developed five conditions for the matter to become res judicata. The said conditions as argued by the 2nd defendant are as follows; 11 I. The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit. II. The former suit must have been between the same parties or privies claiming under them III. The Parties have litigated under the same title in the former suit IV. The court which decided the former suit must have been been competent to try the subsequent suit V. The matter in issue must have been heard and finally decided in the former suit. With regard to the first condition, that is the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; the learned counsel for the 2nd Defendant contended that the instant matter is direct or substantially the same with the former suit having emanated from the same loan agreement. The learned counsel in his submissions did not dispute the five conditions separately but he submitted that this case is not res judicata since the cause of action is on a mortgage Deed and the Defendant never borrowed money as his relationship with the second defendant is that of a mortgagor-mortgagee relationship and not borrower -lender relatioship. In dealing with this first condition, i have perused the the matter and observed that current matter is connected with the loan agreement taken by the first defendant and secured by the Plaintiff by mortgaging the residential house in the plot no. 2429, Block C at Goba kunguru area Therefore the current subject matter of the case is directly and 12 substantially the same in the previous suit no. 92/2023. In both cases there has been an Issue of breach of loan agreement advanced to the first defendant, which has also involved the mortgaged property of the Plaintiff. This same cause of action was also claimed in the Civil case No. 92/2023. It does not matter whether the previous case was on loan agreement and the current one deals with the Mortgage Deed. I am thus in agreement with the position stated in the case of Badugu Ginning (supra) that; It is not necessary that the cause of action in the two suits to be identical. It is only required that the matters are directly and substantially in issue should be the same in both suits....Every matter in respect of which relief is claimed in a suit is necessarily a matter directly and subtantially in issue. The court in that case went on to state that; In the current appeal, it all started with the loan advanced to the Appellant by the 1st Respondent which the Appellant failed to service . As a result, her mortgaged property was preceded by the Settlement Agreement between the Appellant and the first Respondent which eventually was registered by the High Court and became a Decree In the instant matter, the subject matter involved in both cases started with the loan advanced to the first Defendant in 2019 by the 2"'^ Defendant in which the first Defendant failed to service and as a result the mortgaged property of the plaintiff has been advertised for sale. Thus the current suit emanates from the breach of loan agreement. 13 which is a subject of the previous suit between parties. The same cause of action was claimed in the Civil case no 92/2023 which was before this Honourable court between Genoveva Ndelimbi Muro & Franklin Peter Lauwo Vs Letshego Bank (T) LTD & Bilo Star Debt Collectors Ltd. Further, in the case of Esther Ignas Luambano(supra) the court held that; The test whether or not a suit is barred by res judicata is that, is the Plaintiff in the second suit trying to bring before the court in another way and in the form of a new cause of action, a of transaction which he has already put before a court competent juridiction in earlier proceedings and which has been adjudicated upon. If so the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject matter of litigation and which parties exercising reasonable diligence, might have brought forward at the time. The subject matter in the subsequent suit must be covered by the previous suit, for res judicata to apply. Regarding the Second criteria, the second defendant has contended that this suit has been between the same parties hence res judicata, the learned counsel for the Plaintiff has contended that parties are different. Upon careful perusal of the matter and records, i have observed that, in the previous case no 92/2023 parties were Genoveva Ndelimbi Muro and Franklin Peter Lauwo as Plaintiffs against Letshego Bank (T) & Bilo Star Debt Collectors Ltd as Defendants while in this case, Franklin Peter Ndelimbi lauwo has remained to be the only Plaintiff against Genoveva 14 TP' Muro, Letshego Bank (T) LTD and Bilo Star Debt Collector Ltd as Defendants. Therefore, i agree with the submissions of the Defendants that this suit has been between the same parties regardless of whether there has been a shift of the parties positions in the case title, to wit; the previous first Plaintiff being the first defendant in the instant matter. In the case of Badugu (supra), it was stated that, parties would still be regarded the same in a situation where some of them changed or exchanged positions of suing and being sued. As for the third condition, i agree with the learned counsel for the 2nd in the former Defendant that; parties have litigated under same tittle suit. The Plaintiff sued the 2nd Defendant in the former suit for breach of the same contract. That irrespective of exclusion or ommission of some parties, the doctrine of res judicata would still apply. See the case of Badugu(supra). Moving to the fourth condition regarding the competency of the court, I agree with the learned counsel for the 2"^ defendant that, the previous suit was dismissed by this same court (Msafiri, J) and this court was competent to try the suit and still is for this case. In addittion, the current case was dismissed by Msafiri, J for non appearance of the plaintiffs in court without any good cause and therefore the case was finally determined by this court based on the dismissal order issued. The same has not been overturned by this court hence it was finally determined and decided. With regard to the second preliminary objection, the 2"^ defendant has contended that the case has contravened the mandatory provisions of 15 the law while the Plaintiff has contended that the Plaintiff's case is not res judicata since parties are different and the caue of action is different and also the 2"'' defendant has not been clear which case he has been reffering to and that none of the cases mentioned bars the Plaintiff to institute this suit. Upon careful perusal of the submissions and records, I agree with the submissions of the learned counsel for the second defendant that since the Plaintiff's case was dismissed for non-appearance, the remedy available to the Plaintiff was to apply for the dismissal order by Msafiri J to be set aside and not by the Plaintiff bringing a fresh suit on the similar subject matter or directly and substantially the same subject matter by way of changing parties position in the case in terms of suing and being sued. I therefore agree with the finding in the case of Clara Kwilasa (supra) cited by the counsel for the second defendant, that this case is an abuse of court process and that it should be dismissed with costs. In the upshot i proceed to sustain the preliminary objections and dismiss the case with costs. S. D. MWAIPOPO / JUDGE «- a V r - 31/05/2024 >'■ 16