KAUNDIME YUSSUF SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE N0.1480 OF 2025 KAUNDIME YUSSUF..................................................................... 1stPLAINTIFF REHEMA RAMADHAN.................................................................. 2ndPLAINTIFF AMANI YUSSUF........................................................................... 3rdPLAINTIFF SALMA RAMADHAN..................................................................... 4™PLAINTIFF BARUT YUSSUF............................................................................ 5™PLAINTIFF MRISHO YUSSUF......................................................................... 6thPLAINTIFF TWALIB YUSSUF............................ 7™ PLAINTIFF ALLY YUSSUF.......................................................8™ PLAINTIFF MUSSA YUSSUF................................................. 9™ PLAINTIFF VERSUS SHARIF MUSTAPHA JUMBE(Administrator of the Estate of the late Ismail Khamis Kalolo)................. ................. 1st DEFENDANT FOSTERS AND COMPANY LIMITED...................... 2nd DEFENDANT RULING Date ofLast Order: 05.02.2025 Date ofRuling: 28.02.2025 T.N. MWENEGOHA, J In this Ruling, I am invited to decide on the merits or otherwise of the following preliminary objection by the 1st and 2nd defendants, that, the suit is not maintainable for being res-judicata. i Mr. Haji Mlosi, counsel for the 1st and 2nd defendants, insisted in his submissions that, this case is not maintainable owing to the existing of Judgment and Decree entered in Land Case No. 246 of 2022, by this Court through Hon. Msafiri J. In the said case, the plaintiffs are the same as those listed in the instant case. Further, the 1st defendant herein above was also sued in the former case, save for the 2nd defendant. That, the subject matter is same as in this case and has already been declared to be the lawful property of the 1st defendant as seen at page 24 of the Judgment of Hon. Msafiri J. In reply, Advocate Kennedy Steven Sangawe, for the plaintiffs, insisted that, the present suit is different from Land Case No. 246 Of 2022. That, it has different parties, the two defendants were not Involved in the former case. The 1st defendant in this case is sued in the capacity of an Administrator of the Estate of the late Khamis Kalolo. Also, the matter to be discussed is different. In the former case, the claim was on ownership of the suit property described as House No. 58, located on Plot No. 31 Block J, Bukoba Street, Hala Dar es Salaam. As for the current case, the claim is on trespass. Therefore, this case cannot be barred by res-judicata rule, as the conditions stated at section 9 of the Civil Procedure Code, Cap 33 R.E 2019 and the case Felician Credo Simweta versus Quimara Masoud Battery & Another, DC Civil Appeal No. 10 of 2020, High Court of Tanzania at Sumbawanga (unreported), were not met. In his brief rejoinder, Mr. Haji Mlosi reiterated his submission in chief and insisted that the case is res-judicata to land Case No. 246 of 2022. 2 As I turn to analyze the arguments advanced by parties, I find it necessary to go through Annexure Pl, attached with the Written Statement of Defense. I have taken a judicial note of this attachment as it is a Judgment which has merits. It is evident that, this case is res-judicata as it has already been decided by this very same Court, involving the same parties, which are all the 9 plaintiffs and the 1st defendant, Sharifu Mustapha Jumbe, who was the 3rd defendant in the former case. It is immaterial whether the 1st defendant in the present case is being sued in a different capacity (as an Administrator of the Estate of Ismail Khamis Kalolo) and that he was sued in his personal capacity in the former case. That does not change the fact that, he is the same person being sued in two cases of the same nature. The 2nd defendant in this case, is a necessary part, therefore she is litigating under the same title with the 1st defendant. Further to that, the suit property is the same. That is, House No. 58, located on Plot No. 31 Block J, Bukoba Street, Hala Dar es Salaam. The plaintiffs' counsel has tried in his submissions to distinguish the claims, that in the former case the major claim was on ownership of the suit land and in the present case it is on trespass. This argument in my opinion is unfounded, the claims are the same, just the opposite of the other. When one has been declared to be owner of a property then he/she cannot be a trespasser. As rightly argued by Mr. Haji Mlosi, the 1st defendant has already been declared as the lawful purchaser of the suit property by this Court, vide Land Case No. 246 of 2020. By the Decision of Hon. Msafiri J, the 1st defendant has been given a right as a de-facto owner of the suit property 3 subject to completion of the disposition of the suit land. He cannot afterwards be sued for trespassing as his entrance and presence on the suit land is justified through the Decision of Hon. Msafiri J. For the reasons given above, I am of the settled opinion that, the present case contravenes the mandatory provisions of section 9, of the Civil Procedure Code, Cap 33 R.E 2019, which states; - "'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 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." Also, see the case of Paniel Lotta versus Gabriel Janaki & Others (2003) TLR 312. In the end, the objection is sustained. This Court finds the case to be incompetent and the same is struck out with costs. T.N MWENEGOHA, JUDGE, 28/02/2025 4