hassan hiari pagali vs sokoine maitei kotemo 2018 tzhclandd 145 31 may 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO.45 OF 2017 HASSAN HIARI PAGALI........................................................... PLAINTIFF VERSUS SOKOINE MAITEI KOTEMO..................................................DEFENDANT RULING Date of Last Order: 19.03.2018 Date of Ruling: 31.05.2018 S.A.N WAMBURA, J: Hassan Hiari Pagali instituted this suit against the defendant Sokoine Maitei Kotemo for the following reliefs:- (a) An order that the d efen dan t should b e com pelled to v a ca te to the Land at Hassan Hiari Pagali. (b) An order for injunction to stop any developm ent c o n d u c te d by the defen da n t to the Land of Hassan Hiari Pagali. (c) G eneral d a m a g es as m ay be determ ined by the court. (d) Costs of this plaint provide by the defendant. (e) Any other reliefs this honorable Court deem s fit and just to grant. However before the hearing of the suit, Mr. Nkwera learned counsel for the defendant raised the preliminary objection on a point of law to the effect that; “That the plaint is defective due to being res judicata. ” The plaintiff appeared in person unrepresented. With leave of this court, the preliminary objection was disposed of by w a y of written submissions. I thank both parties for adhering to the schedule. In supporting the preliminary objection, Mr. Nkwera contended that the suit is res judicata because there was a suit at Msata Ward Tribunal with No. 202/2015. He stated that the said suit was filed by the plaintiff claiming that the defendant trespassed into his land measuring 20 acres. That the facts in C ase No. 202 of 2015 are similar to the facts of plaintiff’s plaint in Land C ase No. 45 of 2017 especially in paragraph 4 and 6(a) (1) and (11). 2 Mr. Nkwera further averred that even the parties before the Ward Tribunal and in Land Appeal No. 21 of 2016 at Kibaha District Land and Housing Tribunal are the same. He therefore prayed to this court to dismiss the suit with costs. In rebuttable, the defendant did not submit any thing on the preliminary objection raised, but he rather submitted on the jurisdiction of the District Land and Housing Tribunal which is not the part of the objection. Having carefully gone through the submissions from both parties, I have observed that the main issue for determination is whether this suit is res judicata or not. The requirements of the doctrine of res ju dicata couched in the provision of Section 9 of the Civil Procedure C o d e C a p . 33 R.E 2002 which provides as herein quoted: - “Section 9 No court shall fry 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 sam e parties or between parties under whom they or any of them claim litigating 3 under the same title in a court com petent to try subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally d ecid ed by such court". [Emphasis is mine]. The requirements of the doctrine of res judicata couched in the provisions of Section 9 of C ap . 33 R.E 2002 are applicable in a particular case once the following five essential ingredients are proven to co-exist: 1. The m atter directly and substantially in issue in the subsequent suit must have b een directly and substantially is issue in the former suit. 2. The former suit must have b een b etw een the sam e parties or privies claiming under them. 3. The parties must have litigated under sam e the title in the former suit. 4. The court which d e c id e d the former suit must have b een co m p eten t to try that suit. 5. The m atter in issue must have b een heard and finally d e c id e d in the former suit. 4 Moreover the court’s decision, in the case of GEORGE SHAMBWE VERSUS TANZANIA ITALIAN PETROLEUM COMPANY LTD [1995] TLR 21,m ade the following proposition:- “For res ju dicata to apply not only it must be shown that the m atter directly and substantially in issue in the con tem p lated suit is the sam e parties but also it must be shown th a t the matter was finally heard an d determ ined b y a co m p e te n t court". [Emphasis is mine] Now the controversy before me is whether the present suit is res- jud icata as contended by Mr. Nkwera learned counsel for the defendant or not. Having carefully gone through the learned counsel’s submissions and on the basis of the plaint, it is evident that the facts in the plaintiff’s plaint in this suit are similar to the facts of the plaintiff’s claims in Complaint No. 202 of 2015 before Msata Ward Tribunal. Paragraph 4 and 6 (a) (i) and (ii) of the plaint clearly evidence that the cause of action alleged in this suit is the same as alleged 5 in the previous suit No. 202/2015 before Msata Ward Tribunal as well as Land Appeal No. 21/ 2016 of Kibaha District Land and Housing Tribunal. The said complaint was already determined by the Ward tribunal on 31/12/2015 where the trial tribunal dismissed the plaintiff’s application. Being aggrieved by the said decision the plaintiff herein ap p ealed to the District Land and Housing Tribunal of Kibaha in Land Appeal No. 21 of 2016. The said tribunal on 20/10/2016 upheld the decision of the trial ward tribunal and dismissed the plaintiff’s app eal with costs. I note that the prayers which the plaintiff herein claim ed before the Ward tribunal, are the same prayers prayed before Court. Even the parties who were in the dispute are similar and the sam e to this suit. At the trial Ward tribunal the parties were Hassan Hiari Pagali and Sokoine Maitei Kotemo and in the instant suit it is the same plaintiff who instituted this suit claiming that the defendant trespassed into his land measuring 20 acres. It is the sam e land in dispute which was the subject matter before Msata Ward 6 Tribunal, and the matter was finally heard and determined by the com petent tribunal. It is my settled view that as far as the parties and the subject matter were the sam e and the dispute was finally determined, the plaintiff is stopped from filing a fresh suit on the same issue. This is because after the courts with com petent jurisdiction heard and finally determined the suit, the court becom e functus officio and cannot determine the same issue in dispute. The rationale behind this principle is that every litigation should com e to an end, and the one who succeeds in the suit to enjoy the fruits of his/her success. If the plaintiff was still aggrieved with the said decision he still had a rem edy which was to appeal to this Court and not file a fresh suit. Having said so, the preliminary objection raised by Mr. Nkwera is sustained. 7 The suit is accordingly struck out with costs for being res judicata. S.A.N WAMBURA -JUDGE 31.05.2018 8