20181019 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA LAND DIVISON AT DAR ES SALAAM LAND CASE NO. 111 OF 2011 GEORGE WILLIAMSON TANZANIA. LIMITED .......................... PLAINTIFF . . VERSUS. NATIONAL HOUSING CORPORATION .............................. DEFENDANT RULING E.B.LUVANDA, J. The defendant had raised preliminary objection asking the court to dismiss with cots the plaintiff's suit on the ground that: this court has no jurisdiction to entertain this case because it is functus officio as the matter is res judicata, in view _of the order of this court delivered on 5/3/2015 Hon. Kibela J which effectively dispose of ·this case. Mr. Sekule learned Advocate at the defendant's Legal Service Unit, filed submission in support of preliminary 1 objection, Mr Symphorian Kitare learned counsel file submission for the plaintiff. The learned Counsel for defendant submitted that the order of the present suit delivered on 5/3/2015, the plaintiff had agreed to pay rent and the defendant agreed to re-measure the area to resolve the dispute of the claimed rent in which the report was submitted to the court on 8/4/2015 and the matter was disposed of in the circumstances. That the plaintiff did not challenge the said order of the court and it is on record that the plaintiff Counsel requested the court to re-measure the area so that can pay the proper rent and the defendant agreed to re-measure in which rent arrears of Tsh 84 million was removed and deleted from tenant history. That the defendant complied with the said order and was enforced upon the parties and execution report was presented in court on 8/4/2015. He submitted that to continue with this case while there in an order of his court is improper, illegal and procedural (sic, improcedural) because this court is functus officio in so far as the order of the court dated 5/3/2015 is concerned, which was enforced upon the parties to the suit. He cited 2 a case of Abdillay Ally Vs· National Housing Corporation Misc. Civil Cause· No. 3/2018. He submitted that if the plaintiff was aggrieved by the order dated 5/3/2015 he ought to appeal to the Court of Appeal as it appealable in terms of section 4( 1) of Cap 141 R.E. 2002. He submitted that he plaintiff is caught by section 9 of Cap 33 R.E. 2002. That since the parties have been fighting in court with regard to the re-measurement the area and the same was compiled as per the order dated 8/5/2015, this court is f unctus officio for being captured by the provision of res judicata under section 9 CPC, as the subject matter with regard to this case is similar to the subject matter which was decided in Misc. Land Appl. No. No. 10/2015 with the order of the court dated 5/3/2015. In this matter Land Case No. 11 /2011, the plaintiff is seeking for the following reliefs: the defendant be ordered to re-measure the space occupied by the plaintiff the defendant establishes a realistic rent based on the measurement at the ( sic, rate) of Tsh 12,586 per square meter; the defendant credit on the account of the plaintiff amount of Tsh 7, 249910.4 being a total monthly overcharge rent of Tsh 453,119.4 for 16 months since 3 August 2010 till November 2011, general damages Tsh 10,000,000/=. In the order of this court dated 5/3/2015 in Misc. Land Application No. 10/2015 between the same parties to wit . George Williamson Tanzania Ltd Vs N.H.C & others, the Court ruled, I reproduce the whole version, for appreciation. " order: Since the applicant willing to pay rent due, but the same rent required, seems to be exorbitant, and since the respondent is willing to re-measure the area to solve the dispute of the claimed rent. I hereby order that the applicant to remain in that premises where by the respondent and the applicant shall have to cooperate to make sure the re- measurement of the area ts effected so that the real required rent to be paid by the applicant be obtained. Therefore the applicant 4 shall pay the obtained amount of rent effectively as do not dispute paying the same. Hence the matter/application is hereby disposed of. It is so ordered. Report for the execution of the same to be on 8/4/2015" As much the real question of controversy between the parties was resolved in that way and the matter and application was marked disposed of, continuation with this suit is not only caught by a doctrine of res judicata but is legally untenable and a futile exercise. What remain is the execution and enforcement of that order and not by way of re-adjudication of the same issue, which this court is barred for being functus officio. More interesting is a submission which was made by the learned Counsel for plaintiff (applicant therein) while responding to argument of the learned Counsel for respondent (defendant herein) in Misc. Land Appl. No. 10/2015, the learned Counsel was record to have said, I quote. s "My Lord, it is true that the applicant is using the court for hiding and not paying the required rent" Actually this constitutes abuse of court process, which this court cannot condone. Having said, this suit is defeated by both the doctrine of re judicata and for being an abuse of court process. A suit is dismissed with costs. JUDGE 19/10/2018 6 19/10/2018 Coram: Hon. Luvanda, J For the plaintiff: absent, but the legal officer from Kitale advocate one Respicious Rweyemamu is present For the defendant: absent Cc: Placidia Court: Ruling delivered. B.LUVANDA JUDGE 19/10/2018 7