ibrahim ally yusuf mpore administrator of the estate of salum ally yusuf mpore vs pius arobogast massawe another 2022 tzhclandd 12711 8 december 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 132 OF 2022 IBRAHIM ALLY YUSUF MPORE (administrator of the estate of SALUM ALLY YUSUF MPORE.................................................... PLAINTIFF VERSUS PIUS AROBOGAST MASSAWE.................................................................. 1stDEFENDANT NALGIS ALLY YUSUF MPORE.................................................................. 2ndDEFENDANT RAHMAT AHMAD JUMA........................................................................... 3rdDEFENDANT Date of last order: 30/11/2022 Date of ruling: 08/12/2022 RULING A. MSAFIRI, J. This is a ruling on preliminary objections raised by the 1st defendant to the effect that; 1. The suit is bad in law as the court is functus officio following judgment in Land Case No. 175 of 2011 which had determined the ownership ofthe suitplots between the Plaintiff, 2nd and 3d defendant. That the suit is bad in law for being res judicata. i On 2nd November 2022 I ordered the above preliminary objections be disposed of by way of written submissions whereby Messrs. Halfani Msumi, Godwin Musa Mwapongo and Mashaka Ngole learned advocates appeared for the plaintiff, 1st defendant, 2nd and 3rd defendants respectively. It was the submission by Mr. Mwapongo in respect of the 1st preliminary objection that there was Land Case No. 175 of 2011 between the plaintiff and the 2nd defendant which was decided by this court. The issue of ownership was determined by the court hence the court is functus officio to determine the same issue again in the present suit. To fortify his stance Mr. Mwapongo referred the decision of Bibi Kisoko Medard v Minister for Lands and another [1983] TLR 250 in which it was stated that in matters of judicial proceedings once a decision has been reached and made known to the parties, the adjudicating Tribunal thereby becomes functus officio. On reply Mr. Msumi contended and admitted that there was truly a suit filed in this Court in Land Case No. 175 of 2011 over ownership of Plots No. 65 and 66 situated at Gerezani area (the disputed property). Mr. Msumi contended further that the plaintiff was aggrieved with the said decision^ 2 hence he preferred an appeal to the Court of Appeal but was struck out. That again, the plaintiff filed again the appeal to Court of Appeal and it is still pending until now. It was submitted further that during the pendency of the appeal before the Court of Appeal the 2nd defendant sold the disputed property to the 1st defendant hence this case. Mr. Msumi submitted that the ownership of the disputed property has not been finally determined by this court due to the fact this court is not final as there is still an appeal pending at the Court of Appeal. On further submission Mr. Msumi contended that the issue in the present matter is not on ownership of the disputed property rather illegal sale and transfer of the disputed property made by the 2nd and 3rd defendants to the 1st defendant as clearly stated under paragraph 6 of the plaint. Hence Mr. Msumi was of the view that the 1st preliminary objection lacks merits and should be overruled. On rejoinder Mr. Mwaipongo essentially reiterated his submission in chief and he added that the issue of ownership of the disputed property has not been reversed by any court. Wife' 3 Having gone through the parties' submission in respect of the 1st preliminary objection it is not in dispute that there was Land Case No. 175 of 2011 which was between the plaintiff herein against the 2nd and 3rd defendants herein. I discerned from the parties' submissions that the plaintiff is a half-brother of the 2nd defendant and a step son of the 3rd defendant. The Land Case No. 175 of 2011 was determined in favour of the 2nd defendant who raised a counter claim while the main suit by the plaintiff was dismissed. The 2nd defendant was declared a lawful owner of the disputed property. From the parties' submissions, the plaintiff was aggrieved with the decision in Land Case No. 175 of 2011 hence he preferred an appeal to the Court of Appeal which was however struck out for being time barred. Following the order striking out the appeal the 2nd defendant who was declared a lawful owner of the disputed property proceeded to dispose it to the 1st defendant who is now a registered owner. Therefore, there is no dispute that the disputed property has been disposed to the 1st defendant. Now the question I am called to answer in respect of the 1st preliminary objection is whether this court is functus officio in the present suit. The 1st /X 4 defendant submitted that the court is functus officio because the question of ownership of the disputed property has already been determined while the plaintiff claimed that the court is not functus officio as the reliefs in the former case and in the present case are different and also there is still a case pending at the Court of Appeal. In the case of Malik Hassan Suleiman v S.M.Z [2005] TLR, the Court of Appeal stated that; "A court becomes functus officio when it disposes ofa case by a verdict of guilt or by passing a sentence or making orders finally disposing of the case" In the instant case as rightly submitted by the plaintiff there is no relief regarding the ownership of the disputed property rather is to challenge the sale of the disputed property to the 1st defendant done by the 2nd and 3rd defendants. Although the reliefs in the previous matter and in the current matter are different, I am of the settled opinion that the present suit is not competent before this court and it has been filed by the plaintiff after his failure to challenge the decision in the former case. This court became 5 functus officio in respect of the plaintiff and 2nd and 3rd defendants as far as the disputed property is concerned. I am unable to agree with Mr. Msumi learned advocate for the plaintiff that the issue of ownership is not yet conclusively determined as there is a case still pending before this court. There is no such case pending before the court apart from Land Application No. 365 of 2021 which was lodged by the plaintiff seeking an extension of time to appeal to the Court of Appeal but the same was dismissed for lack of merits on 13th September 2022. Hence there is nothing pending before this court. I have taken seriously the argument by the plaintiff that the 2nd and 3rd defendants sold the disputed property to the 1st defendant the fact which is not in dispute. The plaintiff contended that the sale is illegal as there was no application for execution. The mere disposition of the property to the 1st defendant could not have prompted the plaintiff to file a fresh suit after the earlier suit was determined to finality. And the issue of legality of sale of the disputed property to the 1st defendant cannot be safely determined without resolving the issue of ownership which as I have stated before was already determined by this court. Afll h ■ 6 The plaintiff did not put it clear whether there is still an appeal pending before the Court of Appeal, after his earlier appeal was struck out. Even if there is an appeal against the decision in Land Case No. 175 of 2011, the 1st defendant being the purchaser of the disputed property and though not a party should be served with the notice of appeal in terms of Rule 84 (1) of the Court of Appeal Rules as he is likely to be affected by the outcome of the appeal. Having determined the 1st preliminary objection I see no reason to determine the 2nd preliminary objection. The present suit is incompetent before the court and it is hereby struck out with costs. It is so ordered. J . ft /) A. MSAFIRI JUDGE 08/12/2022 7