Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 25238 OF 2024

BETWEEN JOANNA FRANSYCER CHIFUNDA.................................................... APPLICANT

VERSUS ZAKARIA MASHAKA MAFTAH............................................... 15T RESPONDENT GREENLIGHT AUCTION MART.............................................. 2nd RESPONDENT

RULING 26/11/2024 & 16/12/2024 N.E MANDIA, J This is a ruling on a preliminary objection taken at the instance of the 2nd respondent, attacking the competence of the application which is pending in this Court. On 3rd October, 2024 the applicant under a certificate of extreme urgency filed an application against the respondents, claiming inter alia that this court be pleased to grant an order of injunction to prevent the respondents' and their agents or servants and assignee from evicting the applicant from the disputed landed property located on plot No. 27 at Mikocheni Area, Kinondoni Municipality, Dar es Salaam comprised in a Certificate of Title No. DSMT 23712. The application has encountered an impediment by way of preliminary objections raised by the 2nd respondent to the effect that: - i i. The application is misconceived and bad in Law ii. Non-joinder of a necessary party iii. The application is resjudicata iv. Abuse of court process Hearing of the preliminary objection was done through written submission. The applicant enjoyed the legal service of Mr. Vedastus Majura, learned counsel whereas the 2nd respondent was represented by her principal officer one Mr. Bernard Kuweta. The 1st respondent appeared through the representation of Mr. Raymond Wawa, learned counsel but had nothing to say on the preliminary objections. In support of the first point of preliminary

objection, Mr. Kuweta submitted that the 2nd respondent acted merely as an agent on behalf of Kuringe Real Estate Company Limited, the rightful owner of the property in dispute. That in agency law an agent acting on behalf of a disclosed principal cannot be held liable for actions taken in representation of the principal. He referred section 182(1) of the Law of Contract Act, [Cap. 345, R.E.2019] and the case of Peter Kibwana vs. Mohamed Ally [1986]TLR 84 to bolster his argument. Mr. Kuweta contended that this application against the 2nd respondent is improperly constituted and should be strike out. On the second point of preliminary objection, Mr. Kuweta submitted 2 that non joinder of Kuringe Real Estate Company as a party to this application renders it fatally defective. That Order I Rule 9 of the Civil Procedure Code, [Cap 33, R.E. 2019], mandates the inclusion of all necessary parties in a dispute. That Kuringe Real Estate Company, as the lawful owner of the disputed property is an indispensable party. Mr. Kuweta was of the view that any decision made in absence of Kuringe would be unenforceable and prejudicial to her interests. He cited the case of Lujuna Shubi Ballonzi v.Registered Trustees of Chama cha Mapinduzi [1996] TLR 203, where the Court emphasized the requirement for joining parties with substantial interest in the subject matter. On the third point of

preliminary objection, Mr. Kuweta submitted that the instant application is res judicata as provided for under section 9 of the Civil Procedure Code(supra). That the applicant had previously filed Land Case No. 387 of 2023 in the High Court, Land Division on the same subject matter with the instant application which was dismissed for want of prosecution. He cited the case of Gerald Chuchuba v. Rector, Itaga Seminary [2002] TLR 213, where the court reinforced that the principle of res judicata prohibits filing of a fresh suit on a matter which has once been dismissed. That allowing this application would negate the finality of judicial 3 proceedings and fostering endless litigation on the same issue. On the fourth point of preliminary objection, Mr. Kuweta contended that this application is an abuse of court process. That the applicant having filed a prior suit on the same subject matter is attempting to sidestep the dismissal by re-filing the matter against a different respondent. He referred in the case of J.K. Chande & Sons Ltd v. A.G. & Others, Civil Appeal No. 59 of 2008 (unreported) where the Court of Appeal highlighted that an abuse of court process includes any frivolous or vexatious action that hinders justice. That re-filing of this application against the 2nd respondent while the underlying issue remains the same, is precisely such an abuse. Mr. Kuweta prayed for the

court to strike out the application with costs. On the contrary, Mr. Majura, contended that this application has been filed against the 1st respondent who had entered into a lease agreement with the applicant on the disputed property. That while the applicant was serving her lease tenure the 2nd respondent made an attempt to evict her hence, this application. Mr. Majura contended further that the applicant is not claiming ownership of the suit property rather breach of the lease agreement. He submitted that the 2nd respondent has been joined because of his intention to evict the applicant from the suit property hence, there is 4 no misconception of law as alleged. That whether or not the 2nd respondent is an agent is unknown to the applicant. He cited the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969)1 EA 696 to bolster the argument that a preliminary objection must be on pure point of law and not factual issues. That the claim by the 2nd respondent to be an agent is the issue which require evidence and, alleging that Kuringe Real Estate Company has substantial interest on the suit property is a hearsay which need proof. Mr. Majura submitted that the objection does not fit the criteria set in Mukisa Biscuit's case hence, be overruled. Responding to the second point of preliminary objection, Mr. Majura submitted that the applicant has seen no

reason of joining another party who was not the party in the said lease agreement. He submitted that this objection also lacks the criteria set on Mukisa Biscuit's case(supra). On the third point of preliminary objection, Mr. Majura submitted that the application is not res judicata because it does not fit the threshold provided for in section 9 of the Civil Procedure Code(supra). That the said section require that a former and later suit must be between same parties or between parties under whom they or any of them is ligating under the same title; that the court which decided the former and later suit have competent 5 jurisdiction; the matter which is directly and substantially in issue in the present suit must be directly and substantially in issue in the former suit; and the matter in issue in the former suit must have been finally and conclusively heard and determined. He cited the case of NSK Oil and Gas Ltd & Another v. National Microfinance Bank Pic Civil Application No 732/02 of 2024[2024] TZCA 968, to bolster his contention. He submitted that in the former suit the applicant prayed for the declaratory orders that the purported sale agreement of the disputed property be rendered null and void whereas in the present application the applicant is claiming for breach of the said lease agreement against the 1st respondent. That parties in Land Case No. 387 of 2023, were not

heard and their rights were not substantially determined and were different from parties in the present application. That the case of Gerald Chuchumba(supra) is distinguishable from the present application. On the fourth point of preliminary objection, Mr Majura contended that there is no abuse of court process because Land Case No. 387 of 2023 is different from the present application. That the 2nd respondent has been joined in this application because she attempted to forcefully evict the applicant while her contractual rights have not yet been determined by this 6 court. Finally, Mr. Majura invited the court to evoke the principle of overriding objective and determine the merit of the application and prayed that the points of laws raised by the 2nd respondent have no merit and be dismissed with costs. In rejoinder, Mr. Kuweta reiterated that the application is misconceived and bad in law. He submitted further that the 2nd respondent acted solely as an authorized agent of the registered proprietor Kuringe Real Estate Company Limited. That the applicant's failure to acknowledge or address this agency relationship does not absolve the applicant of her obligation to properly identify the appropriate parties to the suit. That the lease agreement was exclusively between the applicant and the 1st respondent and the 2nd respondent has no privity to contract with the applicant.

He referred Mukisa Biscuit's case (supra)to bolster the argument that his preliminary objection raised a pure point of law and not factual issues as alleged by the applicant. On the point of non-joinder of necessary party, Mr. Kuweta maintained that Kuringe Real Estate Company Limited being the registered proprietor of the disputed property is a necessary party to this suit. He referred to section 7 22 of the Civil Procedure Code(supra) to emphasize the necessity of involving all parties whose rights may be directly affected by the outcome of the case. On the point of res judicata, Mr. Kuweta maintained that the application is res judicata against Land Case No. 387 of 2023. That the applicant overlooked the fact that both suits revolve around the same property and involve substantially similar parties and interests and that, absence of a judgment in the said land case does not preclude the applicability of the doctrine of res judicata. That what matters is whether the issues raised in the instant application was also raised in the earlier suit. On the point of abuse of court process, Mr. Kuweta reiterated that the application is an abuse of the court process. That the applicant's strategy of filing multiple suits relating to the same property undermines judicial efficiency and fairness. Finally, Mr. Kuweta contended that the preliminary objections are well founded and prayed

for this court to uphold them and dismiss the application with costs. Having examined the application and considered the submissions advanced by the parties on the preliminary point of objections, the pertinent issue for determination is whether the preliminary objections raised are meritorious. It is trite to point at the outset that in determining the point of 8 preliminary objections raised, I will be guided by the principle in Mukisa Biscuit's case (supra) that objections should be raised on a pure point of law, and cannot be raised if any fact has to be ascertained. For that reason, I will deliberate on the objections jointly. Mr. Kuweta submitted that non joinder of Kuringe Real Estate Company as a necessary party to this application renders it fatally defective. He referred to Order I Rule 9 of the Civil Procedure Code(supra). Mr. Kuweta was of the view that any decision made in the absence of Kuringe Real Estate Company as the lawful owner of the property in dispute will be unenforceable. Also that the instant application is res judicata because the applicant had previously filed in this court Land Case No. 387 of 2023 which was on the same subject matter with the instant application. There are two issues still begging - whether the parties in Land Case No. 387 of 2023 are the same as the parties in the present suit; and whether the subject matter in the former suit is

the same with the present application. In order to resolve these issues, the controversy over the application of the doctrine of res judicata and non-joinder of necessary party have to be tackled. Having gone through the record, I have noted that there was a Misc. Land Application No. 25463 of 2023 in which the applicant herein requested an 9 interim order against the 1st respondent herein, one Salama Maftah and Kuringe Real Estate and the application was granted. Similarly, in the said land case parties were the applicant against Zakaria Mashaka Maftah, the 1st defendant/respondent, Salama Maftah, as the 2nd defendant and Kuringe Real Estate as the 3rd defendant. The subject matter in the said application and land case involved the disputed property and relief sought in the said land case was a declaration that the purported sale agreement of the suit premise by the 1st defendant/respondent to the 3rd defendant was fraudulently conducted hence illegal, null and void. It is evident from the record that parties in the former suits QA were almost similar to parties in the instant application and the subject matter is the same. The said land case was however, dismissed for want of prosecution. It is also on record that the 2nd respondent on 25th September, 2024 issued a 14 days' notice on behalf of Kuringe Real Estate Company Limited to whoever was living or doing business on the

disputed property to vacate within that period of time. It is my considered view therefore that, the instantly application is a constructive res judicata for non - joinder of necessary party. In Juliana Francis Nkwabi vs. Lawrent Chimwaga (Civil Appeal No. 531 of 2020) [2021] TZCA 645 (4 November 2021) CAT cited with approval the case of io Tang Gas Distributors Limited vs. Mohamed Salim Said & 2 Others, Civil Application for Revision No. 68 of 2011(unreported) and stated that: - "...an intervener, otherwise referred to as the NECESSARY PARTY, would be added in a suit under this ru/e ...even though there in no distinct cause of action against him/where: - (a) NA (b) his proprietary rights are directly affected by the proceedings and to avoid a multiplicity of suits, his joinder is necessary so as to have him bound by the decision of the court in the suit [emphasize added] As rightly submitted by Mr. Kuweta that Kuringe Real Estate Company, as the purported lawful owner of the disputed property has interest on the disputed property hence, his joinder would have been necessary for one, to avoid multiplicity of suits, and two so as to make her bound by the decision of the court in the suit. In my view, non- joinder of Kuringe Real Estate in the instant application makes it constructive res judicata. In the case of Witness Rhobi Elia vs. Khamis Abdallah Mduma & 2 Others, Land Case

No. 300 of 2022, TanzLII, it was stated that: - "the suit is constructive res judicata, a suit that sets to bar any claims being raised in a later proceeding if the claim on the same subject matter ought to have been raised and decided earlier". It should be noted that the applicant does not dispute that Kuringe Real Estate was a party to Land Case No. 387 of 2023, which was litigated 11 under the same subject matter, and therefore the ruling concerning the disputed property is that of rem and not persona hence, constructively res judicata under the circumstances. Therefore, the applicant is barred from instituting a suit involving the same subject matter. It was submitted by the applicant counsel that the said land case was not conclusively determined because it was dismissed for want of prosecution. It is my considered view, which is worth noting that the dismissal of the suit has the effect of barring subsequent proceedings on the same cause of action, and the same subject matter even where the parties are different. In the event and for the reasons I have endeavoured to explain above I accordingly uphold the preliminary objections that this matter is res judicata and hence bad Waw. In the upshot i hereby dismiss the application < C‘A'\s with costs. It is so ordered 4 V- I p- ■ • ■' '< r. h - ’*} ApJ /_••• C N7E. MANDIA -' ■' JUDGE 16/12/2024 12