KESSYNURU TAJIRI SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT DAR ES SALAAM LAND CASE NO 26425 OF 2024 KESSYNURU TAJIRI ..................................................... PLAINTIFF

VERSUS PPF SACOS LIMITED.................................. 1st DEFENDANT YONO AUCTION MART AND COPANY LIMITED.......2nd DEFFENDANT

RULING Date of last Order: 25/2/2025 Date of Ruling: 28/2/2025 LALTAIKA, J. This ruling arises from a Preliminary Objection raised by the Defendants, challenging the competency of the present suit on the ground that it is res judicata, having already been conclusively determined in Land Case No. 367 of 2023. The Defendants, through their Counsel, Mr. Paulo Peter Mtui, learned Advocate, also submitted that the Plaintiff failed to file a reply to the 1 Defendants' written submission, thereby waiving her right to contest the objection. A brief background necessary to connect the dots in this Ruling is that the Plaintiff filed the present suit seeking, among other reliefs, a declaration that she is the lawful owner of the disputed property and a permanent injunction restraining the Defendants from evicting her. In response, the Defendants raised a Preliminary Objection, asserting that the matter was already determined in Land Case No. 367 of 2023, whose judgment was delivered on 7th December 2023 by Hon. L. Hemed, J. It was the Defendants' submission that the present suit involved the same parties, the same subject matter, and the same cause of action as the previously decided case. They relied on Section 9 of the Civil Procedure Code, Cap 33, RE 2019 which bars courts from entertaining suits where the issue in question has already been adjudicated upon by a

competent court. Despite being afforded the opportunity to respond, the Plaintiff failed to file her reply to the Defendants' submission, thus leaving the objection unopposed. 2 Having carefully considered the Defendants' submissions and the applicable legal provisions, this Court is called upon to determine whether the suit is indeed res judicata and whether the Plaintiffs failure to file a reply thereto warrants dismissal of the case. The doctrine of res judicata is founded on the principle that litigation must come to an end, and no party should be vexed twice for the same cause of action. For a matter to be deemed res judicata, the following conditions must be met: (a) The matter must have been directly and substantially in issue in the former suit (b) The former suit must have been between the same parties or their privies. (c) The parties must have litigated under the same title (d) The issue must have been heard and finally determined by a court of competentjurisdiction. In the present case, the Defendants have demonstrated that: The Plaintiff and the Defendants were parties to Land Case No. 367 of 2023. The subject matter and reliefs sought in both suits are identical. The previous suit was conclusively determined on 7th December 2023, thereby extinguishing the Plaintiffs right to re-litigate the matter. 3 Given these facts, the Court is satisfied that all the elements

of res judicata are met. Accordingly, entertaining this suit would amount to an abuse of the court process. If the Plaintiff was dissatisfied with the previous decision, the proper course would have been to seek review or appeal, not to file a fresh suit. Let me also take a few more minutes to put it in records that it is trite law that where a party fails to file a reply to a submission, it is deemed that the submission remains uncontroverted. In NBC Ltd v. Superdoll Trailer Manufacturing Co. Ltd, Civil Application No. 13 of 2002 (Unreported), the Court held that failure to file a reply to a submission is equivalent to conceding to the opponents arguments. By failing to file a reply to the Defendants' submission, the Plaintiff has effectively conceded to the argument that the suit is res judicata. Consequently, there is no justification to allow the matter to proceed. Considering the foregoing, this Court finds that the present suit is res judicata, and the Plaintiff's failure to contest the Preliminary Objection only reinforces the conclusion that the objection is meritorious. Accordingly, the 4 suit is hereby dismissed. Given the uniqueness of the matter, each party to bear its own costs. It is so ordered. E. I. LALTAIKA

JUDGE 28.02.2025 Court: Ruling delivered in Court Chambers this 28th day of February 2025 in the presence of the Plaintiff who has appeared in person, unrepresented and in the absence of the Defendants. 5