BYARUSHENGO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 15829 OF 2024 HAMZA B. BYARUSHENGO PLAINTIFF VERSUS MWANGA HAKIKA BANK LIMITED DEFENDANT RULING S.M, MAGHIMBl. J: On 4^^ July, 2024, the Plaintiff filed a Plaint against the Defendant claiming inter alia for a declaration order that withholding of the plaintiff's residential license No. KND024074 by the defendant is unlawful; a compensation to the tune of Tshs. 50,000,000/= being loss of Income; a further compensation to the tune of Tshs. 270,000,000/= being loss of expected earnings; interest at the rate of 30% p.a counting from the date of filing the suit till judgment. The plaintiff further claimed for general damages to be assessed by the court, interest on the decretal sum at the court rate from the date of judgment till payment in full; costs of the suit and other relief this court may deem fit to grant. On her part, the defendant filed her written statement of defence (WSD)dated 24"^ July, 2024 disputing the alleged claims. The defendant also avers that there was a Land Case No. 45 of 2019 in which this court decided that the plaintiff failed to prove specific damages as claimed. The court further decided that, the withholding of residential license No. KND24074 by her is unlawful. Aggrieved, both parties lodged notices of appeal to the Court of Appeal of Tanzania to challenge the said decision. From that position, the defendant lodged along with her WSD a notice of preliminary objection on point of law that: 1. This suitis resjudicata to Land Case No. 45of2019. 2. This suit is res subjudice with Land Case No. 45 of2019 which is pending before the Court ofAppeaiof Tanzania. 3. This suitis res subjudice with Land Case No. 335of2023 which ispending before the High Courtof Tanzania(Land Division)(sic)at Oar es saiaam. 4. This suitis an abuse ofcourt process. With the directives of this court dated 29'^ October, 2024, determination of the preliminary objection was by way of written submissions. I appreciate the parties insight submissions on the subject at hand. The determination of the objections raised will start with the 1=^ limb of objection that the current suit is res judicata to Land Case No. 45 of 2019. Should the objection be sustained, then it will suffice to dispose the suit and if it is not, then determination of the remaining objections will follow cause. In support of the 1=' limb of objection, Mr. Cleophace James, learned advocate for the defendant submitted that the claim in this suit is replica of Land Case No. 45 of 2019. He clarified that, in Land Case No. 45 of 2019 and Civil Case No. 15829 of 2024 parties are the same; that the cause of action in both cases is similar i.e unlawful withholding of residential license No. KND024074 and that the parties are litigating under the same title which is residential license No. KND024074. He then elaborated that the Land Case No. 45 of 2019 was determined by the court of competent jurisdiction to its finality as underscored in section 9 of the Civil Procedure Code, Cap.33 R.E 2019 (herein the "CPC"). To bolster his position, he cited the case of Peniel Lotia vs Gabriel Tanaki & Others[2003] TLR 312 and that of Dastan Kikwesha vs Abdallah Omary Kunha & 4 Others, Land Appeal No. 230 of 2021 (HC). He prayed for the dismissal of the suit with costs for being res judicata to Land Case No. 45 of 2019. In reply, Mr. Ashiru Hussein Lugwisa, learned advocate for the plaintiff contended that the submissions by the defendant's counsel are misplaced. He argued that, there is a distinction between Civil Case No. 15829 of 2024 and Land Case No. 45 of 2019 In that the cause of action and prayers sought in the former suit and current suit respectively are not intertwined but different ones contrary to the principle of res judicata as embodied under section 9 of the CPC. He concluded that, the case of Peniel Lotia (supra) is distinguishable with the circumstances of this case. Re-joining, Mr. James reiterated his submissions in chief and added that since all the conditions did fit squarely as analysed, there is no doubt this suit is res judicata contrary to section 9 of the CPC. Having heard the parties' submission for and against the objection, I will start my determination by reproducing the provisions of Section 9 of the CPC which provides that: - ''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 formersuit 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 subsequentsuit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court''. In light of the above provision, in order to make a conclusive that a matter is res judicata of the previous suit, in the cited case of Peniel Lotia (supra) the court held that in interpreting section 9 above, the court held that the Section contemplates five conditions which, when they 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 must have been litigated under the same title in the former suit; Iv. The court which decided the former suit must have been competent to try the subsequent suit; and V. The matter in issue must have been heard and finally decided in the former suit. As indicated above, and having examined the record, it is crystal clear that, in the cited Land Case No. 45 of 2019 the parties were the same. In the said previous suit, the subject matter is the same suit property herein with residential license No. KND024074 situated at Ubungo-Msewe in Ubungo District, Dar es salaam Region. The matter substantially In Issue therein was unlawful withholding of its residential license which is the same subject matter herein. In the previous suit, the decision in was pronounced by this court on 17'^ July, 2023 which finally determined the rights of parties and in the plaintiff's favour. From the aforesaid, it is obvious that the current matter is replica to Land Case No. 45 of 2019 hence res judicata of the previous suit. (See the cases of The Registered Trustees of Chama Cha Mapinduzi vs. Mohamed Ibrahim Versi & Sons and Another, Civil Appeal No. 16 of 2008 (Unreported); Peniel Lotta vs. Gabriel Tanaki and Others^ Civil Appeal No. 61 of 1999[2003] TLR 314 and George Shambwe vs. Tanzania Italian Petroleum Company Ltd [1995] TLR 21). Further to the above, in the decision of Badugu Ginning Co. Ltd vs CRDB Bank Pic & Others,(Civil Appeal No. 65 of 2019)[2021] TZCA 158(3 May, 2021)TanzLII it was held that: 'The law is accordingly well settled that to invoke the bar of res judicata, it is not necessary that the cause ofaction in the two suits should be identical. It is oniy required that the matters are directly and substantially in issue should be the same in both suits". With that in mind, the contention by the plaintiff's advocate that, there is a distinction between Civil Case No. 15829 of 2024 and Land Case No. 45 of 2019 as to the cause of action and prayers sought is out of context, I find the argument to be misplaced. I join hands with the defendant's counsel that the cause of action and the reliefs pursued herein are directly and substantially the same with the previous suit. The object behind the doctrine of res judicata is to guarantee finality of litigation and hence to protect an individual from a multiplicity of litigation. Insistently, the applicability of the doctrine is for the sake of promoting the fair administration of justice and honesty and to prevent the law from being abused by greedy parties who lodge endless litigation over same subject matter between same parties with the same cause of action to a matter already finally determined. In conclusion therefore, the first point of objection is hereby sustained, the current suit is res judicata to the Land Case No. 45/2019. Having so determined, the suit automatically crumbles hence there is no need to determine the remaining points of objection. In consequence of what I have determined above, this suit is hereby dismissed with costs. Dated at Dar es salaam this ll**" d^y cfr December, 2024. qDRT o X ^S.M. MAGHIMBI \y N UJ JUDGE ★