idd omary kipingu ta lord baden powel memorial high school vs opportunity microfinance tanzania limited 2 others 2021 tzhclandd 13 27 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE N0.41 OF 2020 IDD OMARY KIPINGU t/a LORD BADEN POWEL MEMORIAL HIGH SCHOOL....................................... PLAINTIFF VERSUS OPPORTUNITY MICROFINANCE TANZANIA LTD..1ST DEFENDANT MAKAMA INVESTMENT CO. LTD......................... 2nd DEFENDANT HASSAN MAWA................................................... 3rd DEFENDANT RULING OPIYO, J. The 1st and 3rd defendants objected the instant suit on account that the same is res judicata. In their joint arguments, by written submissions through their learned Counsel, Mr. Yuda Dominic Mushi, they maintained that, on the 15th day of December 2017, the Plaintiff insistuted a Land Application number 191 of 2017 and Miscellaneous Land Application number 191 of 2017 at the District Land and Housing Tribunal for Kibaha at Kibaha. The two cases were before Honourable Njiwa, Chairperson and against the Defendants herein above. Her prayers among others in the Land Application no. 191 of 2017, were for a declaration that, the Honourable Tribunal be pleased to declare that the sale of Lord Baden Powel Memorial Secondary School situated at Mapinga Area, Coast Region was illegal thus void. Both cases were dismissed for want of prosecution. i Mr. Dominic insisted that, under Order IX Rule 8 of the Civil Procedure Code Cap 33 R.E 2019, the plaintiff is precluded from bringing a fresh suit against the same parties and same reliefs rather the remedy available is to apply for setting aside the dismissal order. She didn't do that and preferred a fresh case, the same is unprocedural hence illegal owing to the existence of a dismissal order against the former cases. Mr. Mushi went on to argue that, this case is also barred by the res judicata rules as it involves same parties, same subject matter and same reliefs as the former dismissed case. The dismissal serves as a final determination of the case at hand; hence it cannot be re-entertained based on the rules under section 9 of the Civil Procedure Code cap 33 R.E 2019. To cement his arguments for the defendants, he cited the case of Kamunye and Others Vs. The Pioneer General Assurance Society Ltd (1971) EA 263, which was quoted with approval the case of National Bank of Commerce vs Rabia Murro, Miscellaneous Application No. 559 of 2016(unreported) where the principle of res judicata was amplified to the effect that:- "the test whether or not a suit is barred by res judicata seems to me to be-is the plaintiffin the second suit trying to bring before the court, in another way and in the form of a new cause of action a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time". 2 In reply, Advocate Eric Mora Magige for the plaintiff has insisted that, the preliminary objection is founded on great misdirection and misleading view as far as the case is concerned. It is intended to mislead this Honourable court. He maintained that the Land Application No. 191 of 2017 and Land case No. 41 of 2020 cannot be treated to be one and the same since, the subject matter is different with the present dispute regarding ownership. He submitted that the subject matter on Land Application number 191 of2017 was Plot. No. 42 where the plaintiff herein sued the 1st and the 2nd defendant herein for the Plot No. 42, but in the current suit, which is Land case No. 41 of 2020 the subject matter is Plot No. 40 and 41 where the plaintiff is suing the 1st and 2nd Defendant herein who were also parties to Land Application No. 191/2017 and the 3rd defendant who was not a party in the previous case, since he was not in the picture. Therefore, the res judicata rule in the case at hand do not apply. In emphasizing his arguments, Mr. Eric cited the case of Yohana Hilarious Nyakibari & Another vs Lushoto Tea Co. Ltd & Others, Civil Appeal No. 90 of 2008, Court of Appeal of Tanzania, at Dar Es Salaam, (unreported) clearly stated the five conditions which must co­ exist before the doctrine of res judicata can be invoked; - 1. The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit, 2. The former suit must have been between the same parties or privies claiming under them; 3 3. The parties must have litigated under the same title in the former suit; 4. The court which decided the former suit must have been competent to try the subsequent suit; and 5. The matter in issue must have been heard and finally decided in the former suit. It was therefore his argument that looking at the cause of action in the plaintiffs amended plaint, what is in dispute is the legality of the transfer of Plot No. 40 and 41 (from paragraphs 19 of the Plaintiffs plaint), where in Land Application No. 191 of 2017 between the Plaintiff, the 1st and 2nd Defendants Application is specific for plot No. 42. This confidently shows that the disputes are absolutely not related. He also cited the case of Gerald Chuchuba vs Rector Itaga Seminary (2002) TLR for the same contention. Having gone through the rivalry submissions from the learned counsel for the parties in the case at hand, the issue needs to be determined at this juncture is whether the preliminary objection as advanced by the 1st and 3rd defendants has merit or not. Nir. Mushi in his submissions favour of the objection, argued basically two issues, the first one being the impact of the dismissal order of the former case, Land Application No. 191 of 2017, that it prevents the plaintiff to open a fresh case, but she can apply to set aside the order as per Order IX Rule 8 of the Civil Procedure Code Cap 33 R.E 2019. The second issue is the fact that the suit is resjudicata, contrary to section 9 of the Civil Procedure Code. However, the defendant has not attached the copy of the order given in the former case (Land 4 Application No. 191 of 2017), purported to have been insistuted before District Land and Housing Tribunal for Kibaha for this court to satisfy itself that, what the counsel for the defendants is asserting as far as the two cases are concerned, really exists. In absence of proof that the two cases are similar in terms of the parties, reliefs, subject matter and that the former was determined to its final stage or was just dismissed for want of prosecution, the contentions by the counsel for the 1st and 3rd defendants would have remained hanging in the balance, if not for plaintiffs failure to dispute these facts. The plaintiff instead admitted existence of such facts but submitted that, it is a cause of action which differs between the two suits. He contended that the cause of action in this matter as per amended plaint, what is in dispute is the legality of the transfer of Plot No. 40 and 41 while in Land Application No. 191 of 2017 between the Plaintiff, the 1st and 2nd defendants claim was specifically specific for plot No. 42. What is revealed by the pleadings is that even in the current suit, the dispute is still revolving around the same property, plot no 42 (see paragraph 6 of the amended Plaint. For the reason, the suit is dismissed with costs for being res judicata. M.P. OPIYO JUDGE 27/8/2021 5