isamilo plaza company limited vs mwajuma mussa another 2023 tzhc 18641 30 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 10 OF 2021 (Arising from the judgment of the District Land and Housing Tribunal of Mwanza in Land Application No. 158 of 2018) ISAMILO PLAZA COMPANY LIMITED.…….…………………..………..…APPELLANT VERSUS MWAJUMA MUSSA…………..………………………………………….1ST RESPONDENT TELESPHORY MALIBATE……………………………………………...2ND RESPONDENT RULING 21st June & 30th June, 2023 Kilekamajenga, J. The appellant, after being irked with the decision of the District Land and Housing Tribunal at Mwanza in Land Application No. 158 of 2018, appealed to this court vide Land Appeal No. 30 of 2019. The appeal was objected on the reason that it was preferred after the expiry of the prescribed time allowed to lodge an appeal. After the determination of the point of objection, the appeal was dismissed for being time barred. Immediately thereafter, the appellant lodged Miscellaneous Land Application No. 64 of 2020 in this court seeking extension of time to file the appeal. The application was assigned before the same judge who dismissed the initial appeal and he granted extension of time. The appellant lodged the instant appeal (Land Appeal No. 10 of 2021) impugning the decision of the trial tribunal. The appeal was assigned to another judge for 1 determination. However, the appeal was objected by the first respondent on the ground that: 1. The appeal is bad in law for disregarding the doctrine of res judicata or estopel per rem judicatum and that makes the appeal at be the abuse of court process. On 1st June 2021, the judge invited the parties to argue the point of objection. The learned advocate, Ms. Suzane appeared for the appellant whereas the learned advocated Ms. Lilian Lyimo and Mr. Stephen Mhoja appeared for the respondents. Ms. Lilian for the first respondent argued that, appeal No. 30 of 2019 which intended to challenge the decision of the District Land and Housing Tribunal was dismissed under section 3(1) of the Law of Limitation Act for being brought out of time. The appellant filed application No. 64 of 2021 praying to file an appeal out of time. The prayer to file the appeal out of time was granted before the same judge who dismissed the initial appeal. The appellant, thereafter, filed the instant appeal. In her view, the instant appeal disregarded the doctrine of res judicata or estoppel per rem judicatam and the same is an abuse of court process. To reinforce the argument, the counsel referred the court to the case of Stephen Masato Wasira v. Joseph Sinde Warioba and AG [1999] TLR 334. She argued further that, the appeal was res judicata as per section 9 of the Civil Procedure Code because the matter was determined by the court which had jurisdiction on the same parties and on the same subject matter. 2 The appeal was determined to its finality and consequently dismissed. It was therefore improper for the appellant to file the instant appeal as it was stated on the case of MM Worldwide Trading Company Ltd and two others v. National Bank of Commerce Ltd, Civil Appeal No. 58 of 2017. The counsel stressed that, the appellant wrongly re-filed the appeal which was dismissed. She urged the court to dismiss the appeal with costs. Ms. Suzane for the appellant conceded that the appeal challenging the decision of the District Land and Housing Tribunal was dismissed for being time barred. The appellant lodged Miscellaneous Land Application No. 64 of 2020; despite being objected, the application was granted which allowed the appellant to file the instant appeal. Counsel resisted the allegation that the appeal is res judicata because the appeal was not heard but was dismissed on technical reasons. Only one issue of time limit was considered. She cemented the argument with the case of Gurback Signh Karlsi v. Yoani [1958] EALR 451. In her view, so long as the application for extension of time was granted, the instant appeal cannot be res judicata. Furthermore, the initial appeal was not determined on its finality and therefore not res judicata. She invited the court to consider the principle of the law stated in the case of Tanzania Fertilizer Ltd v. National Insurance Tanzania Limited and another, HC Commercial Case No. 71 of 2004. The counsel further distinguished the case of MM (supra) from the instant case. 3 Citing the book of Muller 7th Ed. Vol. 1 of 2007 the counsel revisited the conditions for the application of the doctrine of res judicata thus, the parties must be the same, the subject matter must be the same, and such a matter must have been determined by a competent court. These conditions do not fit in the instant case because it was not determined on merit but rather on technical reasons. She drew the attention of the court to the case of Karshe v. Uganda Transport Company LTD [1967] EALR 774. On the stance taken in the above cases, the appellant was not restricted from filing the appeal. She prayed for the dismissal of the point of objection with costs. Mr. Stephen further stressed that the second respondent has not been heard as the matter was determined exparte against him. On the application of the doctrine of res judicata, section 9 of the Civil Procedure Code only applies where the matter is determined to its finality. The doctrine does not apply because the appellant was granted leave to refile the appeal. Also, the case of Stephen Masato Wasira (supra) is distinguishable to the case at hand because the appellant was granted leave to file the appeal. The instant appeal was therefore filed following the leave granted by this court. In the rejoinder, the counsel for the first respondent resisted the allegation that the appeal was filed following the leave granted to the appellant. As the appeal 4 was dismissed, this court was restrained from determining the same matter. The consequences of a dismissal order are different from the order to strike out the case. After the dismissal order, the appellant had no right to apply for extension of time but to file revision, review, or appeal to the Court of Appeal and not otherwise. It is not correct to argue that the appeal was dismissed on technical reasons because it led to the dismissal of the case. After the dismissal order, the court had no jurisdiction to entertain the application for extension of time unless until the dismissal order is set aside. In her view, the appeal is a quintessence of the abuse of court processes and the same should be dismissed. After hearing the oral submissions from the parties, the judge felt uncomfortable to determine the appeal. On 11th June, 2021 she recused herself from rendering a ruling on the contested point of objection. She placed the file before the Judge in-charge for re-assignment to the same judge who dismissed the previous appeal and determined the application for extension of time. On 16th June 2021, the file was before the judge who delivered the previous orders. The new judge also remarked, interalia that, as the parties were before him twice, for the interest of justice, it was prudent for the appeal to be determined by another judge. 5 The file went back to the judge that heard the parties; still irritated to determine the same, she made reference to the Court of Appeal of Tanzania reasoning that, as she sat in the same court that made the contradicting orders, she felt functus officio to correct the erstwhile anomalies. She urged the Court of Appeal to provide guidance and directives on how to proceed with this matter. The matter was place before his Lordship, the Chief Justice who directed the following: (a) Since the Judge who presided the matter i.e. Land Appeal No. 10 of 2020 had heard submissions from both parties and reserved the matter for ruling, was obliged to compose the ruling. (b) The matter be remitted back to judge through Hon. Judge in Charge High Court of Tanzania at Mwanza with direction for her to compose the ruling. The file came back to the High Court for the judge to compose the ruling. Before the judge could make the ruling, she was elevated to the Court of Appeal of Tanzania. Hence, I am now obliged to compose the ruling. In this case, the first respondent objected the appeal on the ground that the matter was res judicata. Before venturing into further discussion, I wish to consider our law on the doctrine of res-judicata. Section 9 of the Civil Procedure Code, Cap. 33 RE 2019 provides that: “9. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a 6 former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II: For the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court. Explanation III: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV: Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V: Any relief claimed in the plaint which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 7 For the doctrine of res-judicata to apply, the following elements must exist: First, the matter in the subsequent suit must have been the matter directly or substantially in issue in the former suit. Second, the subsequent and former suit must have involved the same parties or their proxies or privies. Third, the parties or any of them must be claiming under the same title. Fourth, the former suit must have been conclusively determined. In other words, for the doctrine of res-judicata to apply, there should be no pending appeal concerning the same matter otherwise it may invite the application of the doctrine of res- subjudice. Fifth, the former suit must have been decided by a competent court. The doctrine of res-judicata is expounded further by C.K Takwani ‘Civil Procedure’ 7th Ed. 2016 at 71 that: ‘The doctrine of res-judicata is based on three maxims: (a) Nemo debet bis vexari pro una et eadem causa (no man shall be vexed twice for the same cause) (b) Interest reipublicae ut sit finis litium (it is in the interest of the State that there should be an end to a litigation); and (c) Res judicata pro veritate occipitur (a judicial decision must be accepted as correct). Therefore, the rationale behind the application of the doctrine of res-judicata is four fold. First, a person who has been sued in a competent court and the matter came to an end, he/she should not be taken to court again for the same 8 cause of action. Second, for the interest of justice of the parties and the State at large, a litigation which is based on the same cause of action should come to an end. Of course, litigants whose suit has come to an end should rest and deal with other economic activities than labouring on the same matter over and over again. Also, the courts should be left to deal with other issues rather than dealing with the same matter which was concluded by a competent court. Third, where a court has already given a decision on the matter, such a decision should be accepted as correct. Where a matter has been concluded by a competent court, no person is allowed to challenge that decision in court. Fourth, this principle is intended to protect the parties from multiplicity of suits. The major issue that crops-up in this case is whether or not the dismissal order rendered the dispute res judicata. However, it is not a novel issue in our legal jurisprudence. This court was confronted with a similar predicament in the case of Tanzania Fertilizer Company Limited (supra) and had the following decision: “With that interpretation in mind, I do not think, as Mr. Mbamba appears to do, that a decision under section 3(1) is necessarily as good as decision on merit. Indeed, he has produced no authority for such proposition of law. In my humble view, a dismissal order under section 3(1) of the Law of Limitation Act does not necessarily bring the doctrine of res judicata into play as it is not necessarily a decision on the merits 9 of the case. What the court does under that section is simply declare such proceeding incompetent and the court thereby enjoined to dismiss that which is not properly before it. However, that does not mean that the doors of the applicants or appellants or suitors are closed. That is why under section 14(1) the court is allowed to entertain an application for extension of time notwithstanding the dismissal.” I join hands with the above principle of the law that, a dismissal order under section 3(1) of the Law of Limitation Act does not necessarily invite the application of the doctrine of res judicata. Possibly, the most relevant issue in this case is whether or not the appellant was right to file an application for extension of time in the High Court after the dismissal order under section 3(1) of the Limitation Act. On this point, there is a plethora of legal authorities for guidance and direction. For instance, in the case of Hashim Madongo and two others v. Minister of Industry and Trade and two others, Civil Appeal No. 27 of 2003, the Court of Appeal held that: “…After the application before Kalegeya, J. was dismissed…it was not open to the appellants to go back to the High Court…the only remedy available to the appellants after dismissal of the application was to appeal to the Court of Appeal.” 10 Furthermore, this court, in the case of Tanzania Breweries Limited v. Edson Muganyizi Barongo and 7 others, Miscellaneous Labour Application No.79 of 2014 held that: “…I entirely and respectfully agree, that a dismissal under the Law of Limitation Act bars a matter which has already been dismissed to be re- filed by way of applying for an extension of time to file an application for revision that was dismissed for being time barred by the court…the dismissal for want of jurisdiction permits the applicant to re-file the same matter before the proper forum i.e. before the court of competent jurisdiction.” The court went further stressing that: “The court cannot resurrect a matter or an application it killed [dismissed] under the circumstances of being time barred and without leave of the court to be filed. It needs another power from another powerful forum or court to resurrect the dismissed application or matter c’est-a-dire [that is to say] a superior court like the Court of Appeal of Tanzania and this is by the applicants going to the Court of Appeal for remedy of a dismissed matter and not to come before this court which ‘killed’ or dismissed the matter or application.” In an another case of Olam Uganda Limited v. Tanzania Harbours Authority, Civil Appeal No. 57 of 2007, the Court of Appeal of Tanzania stated that: 11 “In our considered opinion then, the dismissal amounted to a conclusive determination of the suit by the High Court as it was found to be not legally sustainable. The appellant cannot refile another suit against the respondent based on the same cause of action unless and until the dismissal order has been vacated either on review by the same court or on appeal or revision, by this Court.” Also, the Court of Appeal of Tanzania, while referring to the case of East African Development Bank v. Blue Line Enterprises Limited, Civil Appeal No. 101 of 2009 (unreported) stated that: “Briefly, East African Development Bank (EADB), had lost to the respondent in arbitration proceedings. EADB’s attempt to challenge the arbitral awards was quite uncharacteristic. Her first petition to set aside that award was struck out by the High Court for being incompetent. Since the time for filing for fresh petition had already run out, she lodged an application for extension of time to file a petition for setting aside the arbitral award. However, she subsequently withdrew the application on a belief, albeit mistakenly, that time had not yet expired for doing so. A fresh petition was filed thereafter but yet again, it met a snag; the High Court found the petition filed beyond 60 days to be way out of time and dismissed it. Finding, herself in that precarious situation, EADB filed another application for extension of time which was struck out and hence the appeal. The Court was confronted with issue whether it was open for EADB to go back to the same court seeking extension of time upon her petition being dismissed on account of time bar. Guided but the provisions of section 3(1) of the 12 Act and its previous decision in Olam Uganda’s case (supra) and Hashim Madongo and Two others v. Ministry for Industry and Two others, Civil Appeal No. 2003 (unreported), the Court held that it not open for a party to go back to the same court and seek extension of time as it happened in Hashim Madongo’s case (supra) which was what the appellant bank had done.” The Court of Appeal went on insisting that: “It is clear to us that irrespective of the words used, the final order amounted to a conclusive determination by the trial court disposing of the former suit for being time barred. In our view, it was not open for the respondent to institute a fresh suit as it were, simply because the trial court struck out the former suit rather than dismissing it as mandated by section 3(1) of the Act.” Gleaned from the above legal authorities is the principle of the law that, a court can only dismiss a matter which is competent before it. Where an incompetent case is filed in court, the only remedy is to strike it out so that an interested party may file a competent suit. When a suit is dismissed, any aggrieved party cannot refile a fresh suit based on the same cause of action. The only remedy available against a dismissed suit is for the aggrieved party to challenge it by way of appeal, review or revision. It was therefore improper and against the established principles of the law for the appellant to file an application for extension of time after the appeal was dismissed under section 3(1) of the Law 13 of Limitation Act. Despite the fact that this court granted extension of time enabling the appellant to file the instant appeal, the procedure used contravened the principles of the law. I agree with the counsel for the first respondent that the appellant acted illegally and it is an abuse of court processes. I sustain the point of objection raised by the first respondent and dismiss the appeal with costs. Order accordingly. DATED at Mwanza this 30th day of June, 2023 Ntemi N. Kilekamajenga. JUDGE 30/06/2023 14 Court: Ruling delivered this 30th June 2023 in the presence of the counsel for the applicant, Mr. Charles Kiteja and the 1st respondent. The second respondent was absent. Ntemi N. Kilekamajenga. JUDGE 30/06/2023 15