LAND APPEAL 13624 2024

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 13624 OF 2024 (Originating From Misc. Application No. 893/2021, Ilala District Land and Housing Tribunal) HEDWIGA HERMAN LORRY................................................................... APPELLANT

VERSUS AL SAHI INVESTMENT LIMITED.................................................. 1st RESPONDENT ABDUEL GILEAD KITURURU t/a AMICUS ATTORNEYS................ 2nd RESPONDENT MAK AUCTION MART................................................................... 3rd RESPONDENT

JUDGMENT 5/08/2014 to 20/09/2024 E.B. LUVAN DA, J This appeal emanate from Misc. Application No. 893 of 2021 at the Tribunal where it sustained a preliminary objection that it was res-judicata following withdrawal of Misc. Application No. 328 of 2021 without leave to refile. In the memorandum of appeal, the Appellant raised four grounds of appeal: One, the trial Chairperson erred in law and fact by holding that Misc. Application No. 893 of 2021 was res-judicata'. Two, the trial Chairperson erred in law and fact by failing to appreciate the fact that when Misc. Application No. 328 of 2021 was filed on 4/05/2021 and withdrawn on 1/09/2021 the cause of action for filing of objection proceedings was yet to arise; Three, the trial Chairperson erred in law and fact by failing to appreciate the fact that the attachment of a i property in question is a condition precedent for the application of objection proceedings; Four, the trial Chairperson erred in law and fact by failing to appreciate that the cause of action for filing the objection proceedings in terms of Misc. Application No. 893 of 2021 arose on 20/12/2021 when the District Land and Housing Tribunal for Ilala made an attachment order of the Appellant's motor vehicle. Mr. Mutakyamirwa Philemon learned Counsel for Appellant, for ground number one submitted that objection proceedings are a special category of proceedings in

which the right of a third party to intervene arise only after attachment order. He submitted that in objection proceedings unlike other proceedings, the cause of action arise when an attachment order is made, citing Order XXI rule 57(1) of the Civil procedure Code, Cap 33 R.E. 2019; section 6(b)(i) of the Law of Limitation Act, R.E. 2029; Ramah Bakari Mageuza vs Tumaini E. Mnyoke & Others, Land Revision No. 45 of 2022; Abdallah Saum Luke mo and Others vs Sifuni A. Mbwambo and Others, Misc. Land Application No. 507 of 2019, Land Division; Sarkar on the Code of Civil Procedure, 10th Edition, Reprint 2005, for a proposition that before there can be a claim (for objection proceedings) there must be a valid attachment. He submitted that the attachment order was made on 20/12/2021, arguing the cause of action for purpose of objection proceedings, the cause of action arose on that date. He 2 submitted that it is undisputed that there was no (sic) prior attachment of the Appellant's motor vehicle before 20/12/2021. He submitted that the cause of actions were different as the initial application moved the Tribunal to investigate the correctness of the application No. 310 of 2021 filed on 20/04/2021 and when the application was withdrawn on 1/09/2021, the cause of action for filing objection proceedings which arose on 20/12/2021 was yet to arise. He submitted that for the doctrine of

res judicata to apply either under section 9 or Order XXIII rules 1 and 2 Cap 33 (supra), essential conditions must co-exist including the same parties and the same subject matter in the former and fresh suits or application. He submitted that the parties and the subject matter differed from Misc. Application No. 328 of 2021 where parties were Hedwiga Herman Lorry vs Al Sahi Investment Limited, while herein parties are Hedwiga Herman Lorry vs Al Sahi Investment Limited, Abduel Gilead Kitururu t/a Amicus Attorneys and Mak Auction Mart; in Misc. Application No. 328 od 2021 the Tribunal was invited to investigate the correction of the application while in the impugned application the Tribunal was invited to investigate the correctness of an attachment order. The learned Counsel submitted that the cause of action arose on 20/12/2021 and there was no previous attachment, arguing that the attachment on that date was the cause of action and the previous application 3 cannot bar an application filed after the cause of action had arisen, citing Sarkar (supra), at page 1733. He cited Yohana Dismas Nyakibari and Another vs Lushoto Tea Company Limited and Two Others, Civil Appeal No. 90 of 2008; Christabella Sowela and Others vs Treasury Registar and Others, Labour Revision Application No. 201 of 2021; Emmanuel Eliazry vs Ezronk K. Nyabakari, Land Appeal No. 56 of 2018; Halima Hamis Budda

and Four Others vs Abubakari Hamisi, Misc. Civil Application No. 34 of 2022. For ground number two, three and four the learned Counsel submitted that in line of or replica to what have been argued on ground number one. In reply, Ms. Maryam Saleh Msean learned Counsel for First Respondent submitted that the application was dismissed for being resjudicata, arguing that it is irrelevant whether the cause of action arose or not. She submitted that the test for res judicata applies on matters substantively and directly in issue and not the cause of action. In that respect, she distinguished authorities cited by the Appellant being inapplicable. She cited Mulla, Code of Civil Procedure 15th Edition at page 10. She submitted that in the first application the Appellant instituted the proceedings for the purpose of objecting attachment of the motor vehicle and withdrew the same because the Appellant was pre-mature, arguing it is a legal defect within the ambit of Order XXIII Cap 33 (supra). She submitted 4 that an argument that the cause of action arose on 20/12/2021 was not a bar to res-judicata, for an argument that the application was barred as there was already an identical application previously instituted by the Applicant. She submitted that the cause of action arise once the Applicant is aware of the act complained of. She reinstated her argument that it is immaterial as

the requirement for res-judicata do not base on the accrual of cause of action. She submitted that section 9 Cap 33 (supra) make no mention of the cause of action/subject matter as a requirement. She submitted that the doctrine of res judicata was properly applicable, argued it does not require the same cause of action rather requires that the matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue in the former suit. She submitted that the question of number of litigants in the two application is irrelevant, citing Majanja Lukamba vs Charles Zacharia and Two Others, Land Appeal. No. 43 of 2023. Regarding an argument that there is a difference on the cause of action, the learned Counsel submitted that it is undisputed that both applications arise from Execution No. 310 of 2021, arguing the prayers are one and the same, that is for the court to entertain objection proceedings in regards to the same motor vehicle subject to the execution proceedings, citing CRDB Bank PLC 5 and Others vs Aziz Mohamed Aboud and Another, Misc. Commercial Cause No. 277 of 2015. On rejoinder, the learned Counsel for Appellant submitted that his contention based on observation by Sarkar (supra) page 1733, arguing that Misc. Application No. 328 of 2021 which was filed on 4/05/2021 and withdrawn on 1/09/2021 due to

absence of cause of action for objection proceedings as at the time of the said application was filed and withdrawn there was no attachment order. He submitted that it was until 20/12/2021 when the Tribunal issued an attachment order creating a cause of action for objection proceedings. He submitted that consequently the Appellant filed objection proceedings on 28/12/2021 in Misc. Application No. 893 of 2021. He wrapped up that, in Misc. Application No. 328 of 2021 there was no cause of action for objection proceedings due to lack of attachment order. On my critical examination, there is no gain saying that on 1/09/2021 when Misc. Application No. 328 of 2021 was withdrawn by the Appellant without seeking for leave to refile, the Tribunal was yet to mount an order for attachment. It is until 20/12/2021 when the Tribunal issued a formal order for attachment along warrant for attachment. The learned Counsel for First Respondent technically conceded that the withdrawal of Misc. Application No. 328 of 2021 was predicated on the ground 6 that it was untimely filed prematurely. This to my view is a concession to the argument of the learned Counsel for Appellant that at the time of withdrawal, there was no cause of action for mounting objection proceedings, which is predominantly targeted to attachment warrant. Sarkar (supra), at page 1533, commented, 'Before there can be a claim there

must be a valid attachment.. Before actual attachment of property inherent power of the court cannot be invoked to entertain a claim petitioned by a third party' At page 1535, the author went on to say, 'Attachment ofthe property in question is a condition precedent for the applicability of 0.21 R. 56' The learned Counsel for Respondent submitted that the premature filing of Misc. Application No. 328 of 2021, was among the defects covered under Order XXIII rule 1 and 2 Cap 33 (supra). However, I am unable to ascribe to this view. The rule is settled that when there is no cause of action the dictate of Order XXIII rule 1(3) Cap 33 (supra) is inapplicable. To cement my position, I gain support from the comment of Sarkar (supra) at page 1733, 'When an ejectment suit in which the notice was defective was withdrawn without permission and a fresh suit was brought after service of notice, it was held that it was not barred, for in the first suit there was no cause of action for want of notice and in the secondsuit the giving ofnotice was a cause ofaction' 7 Therefore, the argument for the learned Counsel for Appellant that filing of a subsequent application was not barred by the rule of res-judicata, is valid. It is common knowledge that the objection proceedings form part of execution proceedings, as per the wordings of the margin note in rule 57 of Order XXI Cap 33, reading

investigation of claims to, and objections to attachment of, attached property and postponement of sale. In that regard, the provision relating to withdrawal of suit or abandonment of part of claim or adjustment of a claim, and consequences thereof, does not cover the application and cause falling under the procedure and process for execution. This is in terms of Order XXIII rule 4 Cap 33 (supra), with marginal note, proceedings in execution of decrees not affected, provide, 'Nothing in this Order shall apply to any proceedings in execution of a decree or order' Therefore, without prejudice to the foregoing, withdrawal of application for execution and proceedings or related matters arising therefrom, are not covered under the procedure provided for in the whole of Order XXIII Cap 33 (supra). In that regard, the ruling of the Tribunal sustaining the preliminary objection to the effect that Misc. Application No. 893 of 2021 was res-judicata to Misc. Application No.328 of 2021, is quashed and orders set aside. The Tribunal is directed to hear the merit of the objection proceedings subject to terms and situation as may arise in the circumstances of the matter. 8 The appeal is allowed. Each party will bear its costs. Judgment delivered in the presence of Ms. Jeddnes Jason learned Counsel for Appellant, Ms. Maryam Saleh Msj/an learned Counsel for First Respondent and in the absence of the Second and Third Respondent. 9 *