RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 127 OF 2023 Ref NO 20230622000506919 BETWEEN GLENRICH TRANSPORTATION LIMITED.......................................... PLAINTIFF VERSUS ADILI AUCTION MART LIMITED...............................................1ST DEFENDANT NMB BANK PLC ......................................................................2ND DEFENDANT RAMJI DHAVJI MAYANI..........................................................3RD DEFENDANT RULING 30th Sept. & 1st Nov. 2024 KIREKIANO; J, On 22nd January 2023, the 1st Defendant, acting as an agent of the 2nd Defendant, invited tenders from the public for the sale/purchase of the property at Plot No. 45 Mandela Express- -Way Buguruni Industrial Area, comprised on CT No. 43260. The sale of the suit property followed the decision in Land Case No. 31 of 2020, whose details are irrelevant here. 1|Page The plaintiff was one of the bidders and claimed he was the highest bidder. The plaintiff claims that the defendant did not declare him a successful bidder; instead, the first and second Defendants unlawfully solicited for improved bids; in the end, despite the plaintiff's protest, the first and second Defendants awarded the third defendant. The propriety and legality of the award of the tender, No. AAM/NMB/Mayo/01/2023 is the subject of this suit; the plaintiff has thus filed this suit claiming against the 1st, 2nd and 3rd Defendants, jointly and severally, the following: - i) For orders of declarations that the 1st and 2nd Defendants acts of nullifying tender NO. AAM/NMB/MAYO/01/2023 (herein the tender) for the purchase of Industrial Property located at Plot No. 45 Mandela Express- Way Buguruni Industrial Area, comprised on CT No. 43260 (the suit property) on the pretext that no bidder was able to reach reserved price is null and void ab initio. ii) For orders that the 1st and 2nd Defendants' acts of re- tendering the suit property is also null and void for it is in contravention of the law and for orders to nullify the 3rd Defendant as successful bidder (winner) thereof. 2|Page iii) iii) For orders to declare the Plaintiff as successful bidder (winner) of the subject tender because her bid price was well above the reserved price recognised in law. The 1st defendant posed a preliminary objection, arguing that; As much as the Plaintiff seeks to challenge the 3rd Defendant’s ownership of Plot No. 456 Mandela Expressway, Buguruni Industrial Area, Certificate of title Number 43260, the Plaintiff's suit is a land matter and should be filed in court clothed with jurisdiction Written submissions were preferred during the hearing of the objection; It is on record that the 1st and 2nd defendants supported the objection; thus, Mr Khalid Rwebangira, learned advocate for the 1st defendant, made the submission in support of the objection, while Mr Elisa Abel Msuya represented the plaintiff. Mr Rwebangira's stance is that, looking at the plaint, the plaintiff seeks to be declared a lawful winner concerning tender No. AAM/NMB/Mayo/01/2023. He submitted that the dispute concerns the ownership and possession of the land, which makes it a land dispute, and it should have been filed as a Land High Court land Division established under section 167 (1) of the Land Act [Cap 113 R. E. 2019]. In support of his 3|Page position, he cited the decision in Musa Makweta Musa vs Faraja Credit Finance (Civil Appeal 8 of 2021) [2021] TZHC 6744 (28 October 2021) at pg ten on the meaning of the land case. He argued that this court should examine Paragraphs 5.0 and 17.0 of the Plaint, which pleads on the title over the property, the subject of the disputed auction, thus making it within the exclusive jurisdiction of the land division. On his part, Mr Msuya premised his argument on two facets: first, this court is a functus official to deliberate the issue on the jurisdiction of this court; second, he disputes the objection, arguing the same is misconceived. On the first facet, he argued that the same issue arose in the high court land division Between Mohammed Enterprises (Tanzania) Limited Vs Adili Auction Mart, NMB Bank Plc and Ramji Dhavji Mayani Land Case No. 54 Of 2023 And Another Case, Glenrich Transport Limited, Vs Adili Auction Mart, NMB Bank Plc and Ramji Dhavji Mayani Land Case No. 75 Of 2023. In its consolidated Land Cases No. 54 and 75 of 2023, it was held that the parties' dispute was not a land matter. Thus, Mr Msuya urged this court to note the decision and refrain from deciding on the same matter. He cited the decision in Mohamed 4|Page Enterprises (T) Limited vs Masoud Mohamed Nasser, Civil Application No. 33 of 2012, which detests such an attempt to deliberate an issue already decided. On the other hand, Mr. Msuya is not content with how the defendant's objection was raised. He pointed out that the defendant's reference to their written statement of defence is barred. It was his submission that the Defendants' attempts to refer this Court to the facts they pleaded in defence are misconceived. In his rejoinder, Mr Rwebangira submitted that the pleaded facts show that the disputed transaction is based on the conveyancing of the Property. He fully subscribed to the case in Mohammed Enterprises (Tanzania) Limited Vs Adili Auction Mart, NMB Bank; however, he maintained that the case differs from the one at hand. I have carefully considered the parties' submissions. Given Mr Msuya's submission, I wish to start with the first aspect, whether this court is functus official in determining the objection posed. I had time to read the decision by my brother, Hemed J, in Consolidated Land Cases Nos: 54 and 75 of 2023. What is clear is that the dispute in those cases involved the 5|Page disputed auction of the property, that is, how the action was conducted. The prayers in those cases were; For orders of declarations that the 1st and 2nd Defendants acts of nullifying tender NO.AAM/NMB/MAYO/01/2023 (herein the tender) for the purchase of Industrial Property located at Plot No. 45 Mandela Expressway Buguruni Industrial Area, comprised on CT No. 33358(the suit property) on the pretext that no bidder was able to reach reserved price is null and void ab initio ". These are the same prayers in this case; the decision of the High Court land division (Hemed J) was that the plaints in both suits were challenging the tendering process in the auction of the house in question. The submission did not persuade me that the case before Hemed J differed from the one at hand. The land division considered whether the same was a land matter and went on to decide, I find the two suits to have been wrongly lodged in this Court as they are typically not land matters. Therefore, this Court lacks jurisdiction to hear and determine them. The only remedy to the matter at hand is to strike out and not transfer the suits to the proper forum as prayed by the learned Counsel for the Plaintiffs. I have opted to refuse the prayer to transfer the suits 6|Page because (i) every forum has its procedure on how to initiate matters before. Based on the above decision, it is clear that this court (land division) deliberated on whether the dispute was a land matter. Now, the principle of functus officio requires that once a court decides on a particular issue, its hands become tied up to redetermine it. The court becomes functus officio when it dispose a case by a verdict or orders, In Bibi Kisoko Medard vs Minister for Lands Housing and Urban Developments and Another [1983] TLR 250, this Court, Mwakibete, J. had this to say: - A matter of judicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes functus officio. In this objection, the same question is posed. There is only one High Court in the United Republic of Tanzania; the divisions and other centres so established do not mean at any standard that the same matter can be decided distinctly as if these court registries were different courts. Doing so will not only go against the principle of being functus official but also twist the parties to wonder on different views from one registry to another. In the above state of facts, I see no difficulty in agreeing with Msuya that this 7|Page court is functus official in entertaining the objection. Ultimately, this objection becomes incompetent to be determined, and the same is struck out. A J KIREKIANO JUDGE 1.11.2024. COURT: The ruling was delivered in the presence of Miss Irene Mchau, advocate for the plaintiff, Mr Khalid Rwebangira for the 1st defendant, and Mr Ibrahim Kibanda for the second defendant and in the absence of the 3rd defendant. A J KIREKIANO JUDGE 1.11.2024. 8|Page