Land Case No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND CASE NO. 27463 OF 2024 JOANNA CHIFUNDA............................................................... PLAINTIFF

VERSUS ZAKARIA MAFTAH..............................................................1st DEFENDANT KURINGE REAL ESTATE COMPANY LIMITED................... 2nd DEFENDANT 04/12/2024 & 17/12/2024

RULING A.MSAFIRI, J This is a ruling on the point of law which was raised suo motu by this court on the competency of this suit before the court. The legal point of the court was based on the same discovering and taking judicial notice of the previous case filed and determined by this court which is similar to the instant suit and hence making the instant suit res judicata to the previous case and robbing this court the jurisdiction to entertain and or determine the instant suit. The court therefore summoned the parties to address it on whether this instant matter is res judicata to Land Case No. 387 of 2023 between Joanna Fransycer Chifunda vs Zakaria Mashaka Maftah& 2 others which was dismissed in this court on 04/7/2024 for want of prosecution. 7m/« i The plaintiff was represented by Mr Peter Madeleka, learned Advocate, the 1st defendant was represented by Mr. Raymond Wawa, learned Advocate and the 2nd defendant had legal services of Ms. Asia Tokutoola, learned Advocate who was assisted by Mr Sisty Massawe, learned Advocate. Mr Madeleka was the first to address the court on the issue on whether the instant suit is res judicata to the previous case. He submitted that the issue of res judicata being a point of law is reflected under Section 9 of the Civil Procedure Code, Cap 33 R.E 2019. (herein the CPC). That recently, the Court of Appeal of Tanzania in the case of NSK Oil

and Gas Ltd & another vs National Microfinance Bank PLC, Civil Application No 732/02 of 2024, CAT at DSM at pages 5 and 6, it emphasized the circumstances where the principle of res judicata can be invoked. The counsel submitted further that it is apparent on the face of record of the previous cases that Land Case No 387 of 2023 does not meet the criteria for the principle of resjudicataXsa apply. That, this is for the reason that the above case was not decided to its finality as it was dismissed for want of prosecution and that there is no any order which was directed by the court subject for execution. 2 Mr Madeleka's other reasons that the case is not res judicata was that parties are not the same in the previous case and the present case, and that the cause of action is not the same in the previous case and the present case. He averred that the same also applies to Misc. Application No. 20996 of 2024, that since it was the application to set aside the dismissal order, the cause of action was different from the current case. Mr Madeleka argued that guided by the principle of resjudicata, the recent case is properly filed before this court and the said principle cannot be used as a bar to present case. He urged this court to find that Land Case No. 27463/2024 i.e., the instant case is different from the previous cases which has ever been filed before this court and thus can

not be prevented by the principle of res judicata. Mr Wawa, for the 1st defendant responded in contention and submitted that the instant case squarely falls within the ambit of Section 9 of the CPC. He said that Land Case No 387 of 2023 was before Hon. Hemed,J. and was dismissed for want of prosecution. That, thereafter the plaintiff invoked Order IX Rule 3 of the CPC and filed an application for restoration of the dismissed suit but the application was also dismissed in October MU 3 Mr Wawa submitted further that the cited Order IX Rule 3 of the CPC provides for the three options when the matter is dismissed. The first option is to file a fresh suit or a party may apply to set aside the dismissal order. That, after the dismissal of the application which was in terms of Order IX Rule 3 of the CPC, the plaintiff had no right to file a fresh suit as he has already opted to apply for setting aside the dismissal order. Mr Wawa was of the view that, the cited provision does not provide that if the application to set aside the dismissal order is dismissed then the concerned party file a fresh suit. He pointed that it was not correct for the plaintiff to come with the second option to institute a fresh suit after the dismissal of her application to set aside the court order. On the principle of res judicata, Mr Wawa submitted that the instant matter is res judicata as all conditions

necessary for the application of the said principle have been met. On the case of NSK Oil and Gas Ltd (supra)cited by the counsel for the plaintiff, Mr Wawa said that the cited case is distinguishable from the circumstances in the matter before this court hence it should not be considered. He prayed to this court to hold that the matter is resjudicata. 4 Ms Asia, for the 2nd defendant subscribed to the submissions by Mr Wawa and added that the instant suit is res judicata to the previous case as all the conditions have been met. On the issue that the previous matter was not determined to its finality, Ms Asia submitted that failure of the plaintiff to appear before the court on the date of hearing without any notice, was clear that the plaintiff had waived her right to be heard. Mr Madeleka, made a rejoinder whereby he reiterated his submissions in chief and added that the proper authority for the interpretation of Section 9 of the CPC is the Court of Appeal as per the cited decision of NSK Oil and Gas Ltd and therefore this Court cannot ignore the interpretation of the principle of res judicata in the cited case hence the cited case is not distinguishable from the circumstances of the present matter. He reiterated his prayers. I have well considered the submissions by the rival parties along with the cited authorities and the pertinent issue for my determination is

whether this instant case which shall be referred herein as the subsequent suit is res judicata to Land Case No 387 of 2023 which shall be referred herein as the former suit, -/m I L- 5 It is not in dispute that the former suit was instituted in this court by Joanna Fransycer Chifunda against Zakaria Mashaka Maftah, as the 1st defendant, Salama Maftah as the 2nd defendant and Kuringe Real Estate as the 2nd defendant. The suit was dismissed for want of prosecution on 04/7/2024. Following that the plaintiff in the former suit unsuccessfully filed Misc. Application No. 20996 of 2024 seeking to set aside the dismissal order. The said Application was dismissed for the reason of being time barred. Mr Madeleka, the counsel for the plaintiff has argued that the subsequent suit is not res judicata as the conditions have not been met for the said doctrine to apply. The counsels for the defendants Mr Wawa and Ms Asia asserted that all conditions for resjudicata have been met and that makes the subsequent suit res judicata to the former suit. As correctly observed by the counsels for all parties, the principle of res judicata is established under Section 9 of the CPC and elaborated much in plethora of authorities in our legal jurisdiction including the one cited by the counsels for the parties in dispute. In the case of Badugu Co. Ltd vs CRDB Bank Pic & 2 others, Civil Appeal No. 265 of

2019, CAT at Mwanza, (Unreported), the Court of Appeal reiterated the principle set under Section 9 of the CPC as follows; i f . 6 "Section 9 of the CPC provides for circumstances under which courts are barred from entertaining suits for being res judicata. It reads: "No court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same 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 issue has been subsequently raised and has been heard and finally decided by such court" Also, in the case of NSK Oil and Gas Limited & another vs National Microfinance Bank PLC (supra) which was referred to me by the counsel for the plaintiff, the same Court of Appeal cemented its position on the principle of res judicata as follows; It is recalled that the Court has reiterated that the principles of res judicata and functus officio aim at barring the courts from entertaining multiplicity of suits or applications for that matter which may cause end/ess litigation. See- Panie! Lotta v Gabriel Tanak and others [2023] T.L.R 312. Moreover, it is common knowledge that, for the two principles to apply, the following essentials have to be established and proved; one, the subject matter in the previous case and in the subsequent suit is substantially

the same; two, both the suits involve the same litigating parties or privies; three, the court which decided the former suit and the one trying the 7 present one have competentjurisdiction; and four, the matter in issue has been decided to its finality', (emphasis added). Holding on to the above guidance by the superior court, in the instant suit I find that all conditions necessary for the principle of resjudicata to apply have been met. I will analyze the conditions for res judicata as they have been reiterated in the recent case of the Court of Appeal of NSK Oil and Gas Limited & another vs National Microfinance Bank PLC. The first condition is that the subject matter in the previous case and in the subsequent suit is substantially the same. In the instant suit, the subject matter in the former suit was Plot No. 27 located at Mikocheni B area (Mwai Kibaki Road), Kinondoni Municipality, Dar es Salaam. The cause of action was that plaintiff in the former suit claimed to have entered into a lease agreement with the 1st and 2nd defendants on 08/02/2021 whereby the plaintiff leased the said suit premises owned by the 1st defendant for the purpose of constructing business buildings. The copy of the said Lease Agreement was attached by the Plaint. The plaintiff in the former suit claims that she constructed the shops on the suit property and rented the same to the tenants.

That surprisingly on 02/11/2023 the plaintiff was served with eviction notice by the 3rd defendant with the intention of evicting the plaintiff from the suit 2^ 8 property. That it came to the knowledge of the plaintiff that the 1st and 2nd defendants have sold the suit property to the 3rd defendant. The plaintiff in the former suit was seeking the court to declare that the purported sale agreement between the 1st,2nd and 3rd defendants on the suit property and a transfer if any of the ownership of the suit property from the 1st defendant to the 3rd defendant was null and void. In the subsequent suit, the subject matter is the same i.e. Plot No. 27, Mikocheni, Mwai Kibaki Road, Dar es Salaam. The plaintiff claims from the 1st defendant 10 years right of tenancy on the suit premises the tenancy which the plaintiff entered with the 1st defendant on 08/02/2021. The plaintiff in the instant suit claims to have entered into a ten (10) years lease agreement on the suit premises. In the subsequent suit, the plaintiff seeks for a declaration order (among other reliefs), that she is a ten (10) years rightful tenant on the suit premises. Having gone through the two suits on the first condition, it is crystal clear and it does not need an expert to see that the subject matter and cause of action in the two suits are the same. To cement this, I find guidance in the case of Badugu Co. Ltd

vs CRDB Bank Pic & 2 others (supra) whereby the Court of Appeal while analysing the conditions set for res judicata, cited the book by A 9 Mulla, Code of Civil Procedure, 13th edition, Vol.l where the phrase ' matter directly and substantially in issud was expressed at pages 55- 56 as follows: "The law is accordingly well settled that to in voke the bar of res judicata, it is not necessary that the cause of action in the two suits must be identical. It is only required that the matters directly and substantially in issue should be in both suit...."(emphasis added). By this, it is my view that it was not necessary that the cause of action in the former suit and the subsequent suit to be identical but the matters which are directly and substantially in issue are the same in both suits. The second condition is that both the suits involve the same litigating parties or their privies. In the former case, the plaintiff was Joanna Fransycer Chifunda against Zakaria Mashaka Maftah, as the 1st defendant, Salama Maftah as the 2nd defendant and Kuringe Real Estate as the 3rd defendant. In the subsequent suit, the plaintiff is Joanna Chifunda against Zakaria Maftah as the 1st defendant and Kuringe Real Estate as the 2nd defendant. In his submission, the counsel for the plaintiff has argued that parties are different in the subsequent suit. That the changes of the names of the parties

alleged by the counsel by the defendants need evidence as it is io needs proof that Joanna Chifunda and Joanna Fransycer Chifunda are the same person. In this, it is my finding that even if it happens that Joanna Chifunda and Joanna Fransycer Chifunda are not the same person as the counsel for the plaintiff Mr Madeleka wants the court to believe, then Joanna Chifunda, the plaintiff in the subsequent suit is privy to the former suit. The reason for my finding is that the current Joanna have interest on the same subject matter which was also the subject matter in the former case which was dismissed by this court. Hence even if she was not physically party to the previous suit, this does not disqualify the matter from being regarded res judicata but rather there is constructive res judicata. This finding also goes to Zakaria Maftah who is the 1st defendant in the subsequent suit and Zakaria Mashaka Maftah who was the 1st defendant in the former suit and Kuringe Real Estate who was the 3rd defendant in the former suit and now the 2nd defendant in the subsequent suit. I also find that there is constructive resjudicata on one Salama Maftah who was the 2nd defendant in the former suit but she is not a party to the subsequent suit, because she is privy to the subsequent suit. In the case of Peniel Lotia vs. Gabriel Tanaki & Others [2003] TLR 312, it was held that, a person does not

have to be formally enjoined in a ii suit, but he will be deemed to claim under the person litigating on the basis of a common interest therein. The plaintiffs and the defendants in the former suit have similar interest in the subject matters involving both suits. Therefore, the fact that one Salama Maftah who was the 2nd defendant in the former suit is not the party in the subsequent suit does not disqualify the application of the principle of resjudicata. The third condition is that, the court which decided the former suit and the one trying the present one have competent jurisdiction. This need not take much time as it is undisputed that the former suit was instituted in this court and subsequent suit have been instituted and is pending before this court which have a competent jurisdiction. The fourth condition is that the matter in issue has been decided to its finality. It is the argument of Mr Madeleka that this condition was not fulfilled since the former case was not decided to its merit but rather it was dismissed for want of prosecution. I totally disagree with the counsel's position. I say so for the strong reason that the former suit was decided by this court to its finality. It is my view that the dismissal of the suit has the effect of barring subsequent proceedings on the same cause of action, and the same subject matter. 1 12 I am of the view that, having

exercised her right by filing an application to set aside the dismissal order vide Misc. Application No.20996 of 2024 and the same was dismissed for want of prosecution, the Land Case No. 387 of 2023 was determined conclusively by this court. The remaining option the plaintiff had was to file an appeal (if she so wishes) to the higher court against the decisions of this court but certainly not instituting a fresh case which is similar to the one which was dismissed. I find that the former case was decided by this court to its finality hence all the conditions necessary for the principle of res judicata to be invoked has been met. I find that this suit is resjudicata and therefore the court is functus officio to entertain it. The suit is hereby dismissed with costs. It is so ordered. A. MSAFIRI

JUDGE 17/12/2024 13