godbless foster and 11 others vs antony faustin msacky and 2 others 2021 tzhc 6118 31 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI REGISTRY AT MOSHI LAND CASE NO 6 OF 2020 GOODBLESS FOSTER... ........................... ...... ...... 1st PLAINTIFF BRYSON FOSTER...................... .................... ...... ..2nd PLAINTIFF JULIAS FOSTER....... ......... ................... ............ ..-3rd PLAINTIFF JOHN FOSTER...... .......... .......... ........ .............. .....4th PLAINTIFF JOSEPHAT FOSTER...... ............... ....... ..... ............. 5th PLAINTIFF JAMES FOSTER ........... ...... .... ......... ......... ............6th PALINTIFF OMBENI FOSTER ......................................... ............ 7thPLAINTIFF MARTHA FOSTER.......,....,....,,.,.,.,,..... ,...... ......... ...8thPLAINTIFF DEO FOSTER.... ....... ......................................... .....9th PLAINTIFF JORAH FOSTER..... ...... ..... ................ ..... ...........10th PLAINTIFF JEROME FOSTER.... .............. ................................11th PLAINTIFF PHIOTEA FOSTER..................... ... ........................,12th PLAINTIFF VERSUS ANTHONY FAUSTIN MSACKY (as administrator of the estate of the late Foster Sungusia Msacky............ ,1st DEFENDANT BENEDICT ANTHONY KIMOSO........... ..........„2"d DEFENDANT DOROTHY NJAU.... .......................... ............. ,3rd DEFENDANT 13* July & 31*August, 2021 RULING The 2m, and 3rtl defendants have raised 4 points of preliminary objection contending that; 1. The 15V 2nd,5th ,9th and 10th plaintiffs are not competent to sue. 2. The suit is time barred. 3. The plaint is bad in law for want of; (i) Signature of the plaintiffs and their advocate (ii) Proper verification clause (iii) Identification of the subject matter of the suit 4. The suit is resjudicata The plaintiffs sued the defendants over a suit iand measuring 4.5 acres situated at Telia, Old Moshi Rural District claiming that the defendants wrongly attached and auctioned the suit land in order to compensate the respondents in Civil Case No. 72 of 1993. They are now seeking relief for a declaration that the plaintiffs are the rightful owners of the suit land. At the hearing parties consented to argue the preliminary objection by filing written submission. Mr. Francis Alex, learned advocate appeared for and represented the plaintiffs while Mr. Ralph Njau also learned advocate represented the 2nd and 3rd defendants respectively. Submitting in support of the 1st point of preliminary objection Mr. Njau contended that the 1st, 2nd,5th ,9th and 10th plaintiffs were improperly joined since they were deceased as evidenced by the attached affidavit of one Gibson Asaeli Ngowi. Arguing on the second preliminary objection Mr. Njau submitted that under paragraph 6 of the plaint the plaintiffs admitted to have been allocated the 2 suit land In .1988 by their late father, He further submitted that. 2,ul defendant's fattier and the 3,< J defendant were In occupation of the suit land since 199-4, having acquired the same through public auction ordered by court He went on arguing that, as per the schedule to the Law of Limitation Act, the present suit Is for the recovery of land, thus the limitation period Is 12 years, Hence the suit has been brought out of time after the period of limitation had lapsed, He thus prayed for the preliminary objection to be sustained, As to the 3rd preliminary objection, learned advocate submitted that the plaint was deliberately not signed by all the plaintiffs. That, the omission was deliberate to cover for existence of some of the plaintiffs in the pleadings. Mr. Njau argued further that, the plaint was not properly verified as required by the law. That the subject matter of the suit being immovable property, no description was stated as required under Order VII Rule 3 of the Civil Procedure Code, Cap 33 R.E, 2019 (CPC). He prayed for the Plaint to be struck out with costs. As regards the 4th preliminary objection, Mr. Njau contended that the suit was res judicata in terms of section 9 of the CPC. That, the applicants in Application No. 67/2008 of the District Land and Housing Tribunal for Moshi at Moshi are the same as the plaintiffs in the present suit, the 2nd and 3rd defendants in the present suit were basically the same parties in the previous suit and the substance of the matter in issue at the said District Land and Housing Tribunal is the same as the one this Court has been called upon to adjudicate. The applicant aggrieved by decision of the Land and Housing Tribunal did appeal to the High Court in Land Appeal No.43/2010, the same was dismissed for being time barred. He prayed for the objection to be sustained. Responding to the points of preliminary objection raised, Mr. Alex, conceded to the first objection to the effect that, they were misinformed by their clients on this matter. He prayed to amend their pleadings under Order VI Rule 17 of the CPC. On the 2nd objection the learned counsel submitted that the defendants acquired the suit land through public auction ordered by the District Court of Moshl at Moshi and that is where the problem started. He explained that the auctioneer sold the land in dispute to two different people while the owners were not informed. He also asserted that since there was a pending case, they could not institute another case in different court thus had to wait until the case ended in 2014. As to the 3rdobjection on pleadings not being signed by some of the parties or their advocates, Mr. Alex opposed the objection for lacking point of law. The issue of proper verification clause was considered in their pleading by stating where they received the information from. On the description of the suit land, the learned counsel argued that the same was identified according to the geographical area where the parties resided, Thus he prayed for the objection to be overruled for lacking point of law. Regarding the last objection Mr. Alex argued that, the suit is not resjudicata as the parties who instituted the previous case were not the same in this matter. He cited the case of Samweli Kimaro V Hidaya Idd, Civil Application No, 22 of 2012, in support of his argument. in his brief rejoinder submission the counsel for the defendants reiterated his earlier submission in chief and maintained his stance that the points of preliminary objection raised be sustained with costs. Having heard both parties' submissions for and against the points of preliminary objection raised the question that arises is whether the points of preliminary objection raised are maintainable. Considering the manner I intend to deal with this matter, I will only deal with the 2nd and 4th points of objections respectively, as they fall under the purview of the preliminary objection propounded in the leading case of Mukisa Biscuits Manufacturing Co. Ltd V. West End Distributor Ltd (1966) EA 696 as the two points of objection touches on the issue of this Court's jurisdiction in entertaining this matter. The counsel for the respondents had raised an issue of the suit being time barred. A perusal of paragraph 6 of the plaint revealed that the Plaintiffs were allocated the suit property by their father the late foster Sungusia Msacky. The cause of action for this suit aroused in 1994, when the suit property was attached and sold following the order from execution of District Court of Moshi, in Civil Case No 72 of 1993, where the 3rd defendant herein was the judgment debtor and the said property was sold by auction to the 2ndand 3rddefendant respectively. It is also on record that the plaintiffs filed Land Case No. 67 of 2008 at District Land and Housing Tribunal at Moshi, and prayed for the tribunal to revoke the said auction, but the tribunal dismissed the same for lack of jurisdiction. Being aggrieved by the decision of the tribunal they appealed to this Court vide Land Case Appeal No. 43 of 2012 and the same was dismissed for being time barred. 5 \ It is after 21 years from. I he dcrte of tlumeeutiou of the oukn whi^v ii\ m\* considered opinion and m rightly aioued by tho d^hm tot’s vm w\ is ttv cnuso of action for this mm, tho plaintiff resurtaml ctalminy to tv rightful owners,of tho suit land, Tho counsel for the yU^twUtfs. in \kv^ t\> submissions nwlo by the counsel for tho defendants h<Kl evvn wto\KM the fact that the defendants acquired the suit land thmuyh public auction, ordered by tho District Court of Moshl In Civil Case No, 72M993, ;mt that the owners were not informed, However, the learned counsel asset tt\l th<\t In 2008 the plaintiffs Instituted a case at the Moshl District Und mxt Houston Tribunal, Land Case No. 67 of 2008, which was finally dtftetmtei in then they filed an appeal to this Court and the same was dismissed for tvu^i time barred In 20 H It was the learned counsel's contention that s^oce ttm> was a pending case, they could not Institute 21 fresh suit in diffcavut c m t thus had to wait until In 2014 when the ease was finally determined Following the above narration the question to be asked is whether the afcxw enumerated series of events justified the delay In filing their other c k fe against the defendants? From the outset it would be appropriate to revisit the provision of ssctictt $ of the Law of Limitation Act, Cap 89, [R,E, 20X9] which tsads,' Subject to the provision of this Act the right o f arffc*? t respect of any proceeding, shall accrue on th&date-m xhteh the cause o f action arises, In the Instant matter, It Is on record that the cause of action v\w back In 1994 thus the right of action accrued from 1994, it means 21 from the date (ho cause of action arouse to the date the plaintiffs tiled the case In this court. Which undoubtedly was Hied out of time. Considering the counsel for the defendant's daim that them was a pending case In this court which Involving same parties and same cause of action, it Is a convincing excuse for filing this case out of time as provided for under section 21 of Cap 89, However, section \A (l) and (2) thereof, provides the following; "1<1'(I) Notwithstanding the provisions o f this Act, the court may, for any reasonable or sufficient cause, extend the period o f limitation for the institution o f an appeal or an application, other than an application for the execution o f a decree, and an application for such extension may he made either before or after the expiry o f the period o f limitation presented for such appeal or application. (2) For the purposes o f this section "the court" means the court ha ving jurisdiction to entertain the appeal or, as the case may be, the application.* As the law is categorical on the fact that the claim over land rights is limited to 12 years and in the instant matter such time had already lapsed while no extension of time was sought prior to filing the current suit, it is sufficiently established that this matter is miserably time barred and this Court is barred from entertaining the same. The decision of the Court of Appeal in Fanuel Mantiri Ng'unda V Herman Man tin Ng'unda & 20 Others* (CAT) Civil Appeal No. S of 1995 (unreported) is relevant where the Court observed; 'The question o fjurisdiction for any courtis basic, it goes to the very root o f the authority o f the court to adjudicate upon cases o f different nature ... The question of jurisdiction is so fundamental that courts must as a matter ofpractice on the face o f it be certain and assured of their jurisdictionalposition at the commencement of the trial It is risky and unsafe for the court to proceed with the trial of a case on the assumption that the court has jurisdiction to adjudicate upon the case, '[Emphasis mine.] I found the 2nd preliminary objection has merit as the instant matter is time barred for this court to have jurisdiction to entertain it I therefore proceed to sustain it. As to the 4th preliminary objection raised on the suit being res judicata, Section 9 of CPC reads; "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suitin which such issue has been subsequentlyraisedand has been heard and finally decided by such court" The aforementioned section bars Courts from entertaining any suit or issue which involves same parties on the same subject matter which has been finally adjudicated by a court of competent jurisdiction. The above legal position has been affirmed in Breenhalgh Mallard [1947]2 All ER p. 255 where the court observed; 8 "Res judicata for this purpose is not confined to issues which the Court is actually asked to decide but that it covers issues or facts which are so clearly part o f the subject matter o f litigation and clearly could be raised that it would be an abuse o f the process o f the Court to allow a new proceeding to be started in respect o f them." From the above leading authority and the provisions of the law in order for the doctrine of Res Judicata to be established, the fol (owing criteria must be proved namely; i. there must be two suits, the former suit and the subsequent suit; ii. the former suit must have been between the same litigating parties or between parties under whom they or any of them claim; iii. the subject matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and subsequently in issue in the former suit either actually or constructively; iv. the party in the subsequent suit must have litigated under the same title in the former suit; v. the matter must have been heard and finally decided; vi. that the former suit must have been decided by a court of competent jurisdiction; I am of the considered view that the counsel for the defendants sufficiently established the above criteria that, the applicants in Application No. 67/2008 in the District Land and Housing Tribunal for Moshi at Moshi are the same as the plaintiffs in the present suit, the 2nd and 3rd defendants in the present suit were also parties to the previous suit, and the substance of the matter in issue in the said case at the District Land and Housing Tribunal is the same as the one at hand this court was about to adjudicate. The applicant being aggrieved by decision of the Land and Housing Tribunal did appeal to the High Court in Land Appeal No.43/2010, the appeal was dismissed for being out of time. From a perusal of the evidence adduced, I am in agreement with the learned advocate for defendant that the suit is res judicata. For the reasons discussed above, the two points of objection raised are sustained. Consequently, the suit is dismissed with costs. It is so ordered. Dated and delivered at Moshi this 31st day of August 2021. S. B. MKAPA JUDGE 31/08/2021 10