HERMAN MGALE SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 15766 OF 2024 HERMAN MGALE.............................................................. 1«t APPLICANT HIDA YA ALLY KATAMBO............................................... 2nd APPLICANT SAID SHOMARY MUHONDOGWA.................................. 3rd APPLICANT ANDREA THOMASI........................................................ 4th APPLICANT PASIANO PHILIPO MABULA.......................................... 5th APPLICANT ELIUD MAHUTA MAHWAGO.......................................... 6th APPLICANT NYAFULU MKEPE........................................................... 7th APPLICANT VICKY E. AMANI............................................................ 8th APPLICANT TUMSIFU MARIKO MUNUO........................................... 9th APPLICANT MARY MBWAMBO.......................................................... 10™ APPLICANT OMARY WAZIRI............................................................. 11™ APPLICANT LUCY ALOYCE MLINGI................................................... 12™ APPLICANT ASHERY SUSOYA MKUYU.............................................. 13™ APPLICANT STIVIN NSHAURWA....................................................... 14™ APPLICANT SIGIFIRD G. TESHA....................................................... 15™ APPLICANT HAIKAEL RICHARD LEKULE........................................... 16™ APPLICANT MARIA CHARLES............................................................ 17™ APPLICANT LIVING MAN JIA RICHARD............................................. 18™ APPLICANT VERSUS COMMISIONER FOR LANDS...................................... ....... 1st RESPONDENT BAGAMOYO DISTRICT COUNCIL................................... 2nd RESPONDENT THE ATTORNEY GENERAL.............................................. 3rd RESPONDENT ESTHER DANIEL MWAIKAMBO being legal Administrator of the late Gibbons Mwaikambo................. 4™ RESPONDENT RULING AIA v 1 16/8/2024 & 30/8/2024 A, MSAFIRI, J. This is a ruling on the preliminary objection raised by the 4th respondent through her advocate, Mr Jerome Msemwa who filed in court a Notice of Preliminary objection to the effect that; 1. This Hon. Court has no jurisdiction to hear the Application relating to ownership or institution of suit in respect of Plot No. 951 or 591 as matter was decided in the case ofALEX A. LEOLE &57 OTHERS VS MRS ESTHER MWAIKAMBO (as Administrator of the Estate of the late GIBBONS MWAIKAMBO), Land Case No. 225 of 2012. The preliminary objection was heard orally. Mr Msemwa, learned advocate for the 4th defendant was the first to address the court and submitted that the court has no jurisdiction to entertain the matter since the subject matter is the disputed land described as Plot No. 591/951 located at Mapinga. That the dispute on the said Plot has already been determined and decided in Land Case No. 225 of 2012. The counsel for the 4th respondent submitted further that although the current applicants were not parties to the said Land Case No. 225/2012, the remedy is for them to seek for revision before the Court of Appeal and not filing a new case. He pointed that this is the position of law as it was set in the case of Dorice Keneth Rwakatare vs. Nurdin Abdalla/ 2 Mushi (bothers, Civil Application No. 403/17 of 2021. He prayed for the dismissal of the application with costs. Ms Joyce Yonazi, State Attorney was representing the 1st,2nd and 3rd respondents. She subscribed to the submissions and prayers by the counsel Mr Msemwa and added that the application is res judicata to the Land Case no. 225/2012. She referred this court to the Court of Appeal case of Fredrick August Massawe vs. Celine Ephrahim Ngahugha (bothers, Land Case No. 155 of 2022. Ms. Yonazi went on to analyze the five conditions set in the cited case and submitted that all five of them has been fulfilled. She said that the subject matter on the two cases is the same, on the parties, the 4th respondent was also a party in Land Case No. 225/2012 and that although the applicants were not in the previous case, subsequent proceedings is barred on the same cause of action. She said further that, parties are litigating under the same title and that the previous suit was heard and determined by a competent court and the dispute was finally determined. The counsel insisted that the current matter is barred under Section 9 of the Civil Procedure Code, Cap 33 R.E 2019 hence it should be dismissed with costs. Jd L ■ 3 Mr Jonathan Mbuga, and Mr. Hans Mrindoko, learned Advocates were representing the applicants. In response, Mr Mbuga submitted that the raised preliminary objection lack the quality of being termed so in the perimeters set in the case of Mukisa Biscuits Manufacturing vs. West End Distributors Manufacturing Co. Ltd [1969] EA 696. He said further that this court was moved to determine on Plot No. 951/591 but the instant application is in respect of Farm No. 951 or 591. That the evidence is needed to determine whether suit property is a farm or a plot. That Farm No 951 or 591 is not mentioned or indicated in the entire Land Case No. 225/2012. That it is not indicated whether this Farm No. 951/591 is located at Kibosha, Mapinga, Bagamoyo. Mr. Mbuga said further the parties in the two cases i.e. the previous case No. 225/2012 and the instant application are not the same. He argued that the application is not res judicata. The counsel pointed that this court can lack jurisdiction only when the doctrines of res judicata and judgment in rem can successfully be proved. He said that the two doctrines were not proved by the respondents through their counsels. He cemented his arguments by citing the case of Masumbuko Kowolesya Mtabazi vs Dotto Salum Chande, Civil Appeal No. 44 of 2013. He prayed that the preliminary objections to be overruled with costs. 4 In rejoinder, Mr Msemwa and Ms Yonazi reiterated their submissions in chief. Having gone through the submissions by the parties through their counsels, the issue for determination is whether this court has no jurisdiction to entertain the instant application for the reason that it is res judicata to Land Case No. 225 of 2012. The principle of resjudicataXs well established under Section 9 of the CPC. The conditions necessary for the principle of res judicata to apply has been well elaborated in numerous authorities both of this court and the Court of Appeal. In the case of Peniel Lotta vs. Gabriel Tanaki & others (2003) TLR 312, the Court of Appeal set five conditions which when coexistent, will bar a subsequent suit. The conditions set are as follows; 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. Hi). The parties must have 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. v) . The matter in issue must have been heard and finally decided in the former suit. JVHr 5 In the instant matter, the counsel for the respondents were of the view that the instant application is res judicata to Land Case No 225 of 2012. (herein shall be referred as the former suit and the current application). After reading the judgment of the Land Case No. 225 of 2012, I am convinced that the issue whether this application is res judicata to Land Case No. 225/2012 needs to be ascertained by the evidence due to uncertainty on whether the subject matter in the former suit is the same in the current application. The reason for my finding is basing on the fact that in the former suit, the plaintiffs were seeking to be declared the owners of pieces of land they own at Mapinga Village. According to the judgment of Land Case No. 225/2012, it was said that the claimed area by the plaintiffs in the former suit was surveyed sometimes in 1995 as farm number 591 Mapinga Village registered in the map No. 28296. In the judgment at page 12, it was observed further thus: " This is to the effect that PW1 and PW2 had been informed by the /and authorities (Bagamoyo District Council) that the area had been surveyed sometimes in 1995 as farm number 591 Mapinga Village registered in the map No. 28296. Their alleged pieces of land form part 6 of this vast land known as farm number 591. PW1 and PW2 have tendered documents from the land authorities confirming the existence of Plot No. 28296. In such a given scenario the plaintiffs had a duty to ascertain to the court on a balance of probabilities that Plot No. 28296 does not exist, (emphasis added). From the above paragraph reproduced from the judgment of the former suit, it seems that there is Farm number 591 which was registered in Plot No.28296 and located at Mapinga Village which was a subject matter in the former suit. But in the current application, the applicants are seeking for interim orders on farm number either 591 or 951 located at Kibosha Mapinga, Bagamoyo. It is my view that the court will need an ascertainment of the evidence that the disputed areas in the two matters are the same because in the former matter there is this Plot No. 28296 which does not feature in the current application. For this reason, once the preliminary objection needs to be ascertained by the evidence, it is automatically disqualified from being the preliminary objection as per the principle set in the famous case of Mukisa Biscuits (supra) and reiterated in the plethora of authorities in our jurisdiction. In the decision of the said case at page 701, the court stated that:- TV/ L 7 "a preliminary objection is in the nature of what used to be a demurrer. It raise a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised ifany fact has to be ascertained or what is sought is the exercise of judicial discretion" (emphasis added). I find that according to the nature of the current application, the respondents have raised this preliminary objection prematurely and I am convinced that if the applicants will later file the intended main case, then the issue of res judicata will be better placed to be determined in the main case. Basing on the reason that the issue on whether the subject in dispute in the two suits is the same need to be ascertained, I find that the objection is premature and I overrule the raised preliminary objection with no order as to the costs. It is so ordered. a.msafir: JUDGE 30/8/2024. 8