LAND CASE NO

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 12356 OF 2024 KINONI ADAM WAMUNZA (The Administrator of Estate of the late PAUL JAMES, P JAMES, K, PAUL JAMES....... PLAINTIFF VERSUS RAYMOND PETER MBILINYI........................................... 1st DEFENDANT KINONDONI MUNICIPAL COUNCIL................................. 2nd DEFENDANT THE REGISTRAR OF TITLES.............................................. 3rd DEFENDANT THE COMMISSIONER FOR LANDS.................................... 4th DEFENDANT THE HON. ATTORNEY GENERAL....................................... 5th DEFENDANT RULING 21/08/2024 & 17/09/2024 A.MSAFIRL J, This is a ruling in respect of the preliminary objection raised by the 1st defendant herein which state as follows:- 1. That this court tacksjurisdiction to entertain this suit for being res judicata as it was already been determined by the Court of competentjurisdiction. By leave of the court, the preliminary objection was heard by way of written submissions. The submission in support of the preliminary objection was drawn and filed by Mr Amoni Rwiza, learned Advocate while i the submission opposing the preliminary objection was drawn and filed by Mr. Benjamin Mwakagamba, learned Advocate. Mr. Rwiza submitted briefly that the suit is bad in law for being res judicata, and it contravenes Section 9 of the Civil Procedure Code [Cap 33 R.E 2019] (herein as the CPC). That the plaintiff has instituted the suit at District Land and Housing Tribunal for Kinondoni (DLHT) by Land Application No. 413 of 2007 against the 1st and 2nd defendants in which the plaintiff prayed to be declared a lawful owner of the suit premises located at Plot No. 416 Block J Mbezi Medium Density Area at Dar es Salaam. That, after the judgment the 1st defendant was dissatisfied with the findings thereof and appealed to the High Court of Land Division at Dar es Salaam in Land Appeal No. 203 of 2017 and the appeal was fully heard and allowed accordingly. That the plaintiff was dissatisfied with judgement and appealed to the Court of Appeal of Tanzania vide Civil Appeal No. 424 of 2020 in which the Court of Appeal dismissed the appeal with costs. Mr Rwiza argued further that the proceedings of the Land Application No. 413 of 2007 in the District Land and Housing Tribunal for Kinondoni District remains intact and it does not give the option for the plaintiff to institute the fresh suit. He cited the case of Michael Obiero (Administrator of- 2 the estate of the late Obiro Okinyi) vs Ager Ondiek and another, Civil Case No. 422 CAT at Musoma (Tanzlii), whereby the Court of Appeal laid down five conditions for the doctrine of res judicata to apply. In reply Mr. Mwakagamba for the plaintiff argued that the preliminary point of law raised must be on point of law, which does not need evidence or necessary facts to prove. He cited the case of Mukisa Biscuit Manufacturing Company Limited vs West End Distributors Limited (1969) 1,EA, 696 and the case of Jeras Sharia & Company vs Chotai Fancy Store (1960) EA 374. He contended that the suit at hand is not resjudicata, as the matter before the DLHT was for determination of ownership and both courts departed and addressed the issue of discrepancies in names as P. James and Peter James were used interchangeably to refer to one and same person. He contended that the parties in this present suit are not the same parties. Regarding the argument that parties are ligating under the same title, the counsel argued that the letter of offer issued to the plaintiff with Reference No. D/KNA/ 15298/1 for the period of 99 expired on 15th July 2079, Plot No. 416 Block J, Mbezi Medium Density, Area, Kinondoni while the 1st defendant was issued with a letter of offer with reference No. D/KN/A/1528/Ems dated 10th July 1981 for the period of 33 expired on 9th 3 July 2014, thus the issue of double allocation has not been resolved by the court of competent jurisdiction. He asserted that the courts have not determined the claims and reliefs set in the instant plaint. He prayed the court to dismiss the preliminary objection for lack of merits. Having heard the submissions of both parties, the issue for determination and consideration is whether this suit is res judicata? The doctrine of res judicata is embedded in Section 9 of the CPC which provides thus: - "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 the 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" From the foregoing, the following elements have to be satisfied which are; i. That the judicial decision was pronounced by a court of competentjurisdiction; ii. That the subject matter and the issues decided in the former suit are the same or substantially the same as the issues in the subsequent suit; Hi. That the judicial decision was final; iv. That it was in respect of the same parties or parties litigating under the same title, Ar L. 4 Upon examining the aforesaid elements (i) and (iii) in line with paragraphs 7,8, 9,10, 13, 14, and 15 of the plaint together with annexures BMA-D & BMA-E to the plaint, it seems that the similar matter was instituted by the plaintiff through Land Application No. 413 of 2007 in the DLHT, which was determined in favour of the plaintiff, then after the decision of the DLHT, the 1st defendant appeal against the decision of the DLHT in the High Court, Land Division through Land Appeal No. 203 of 2017 whereby the High Court allowed the appeal, and proceed to quash and set aside the decision of the DLHT. The plaintiff appealed against the decision of the High Court of Tanzania, through Civil Appeal No. 424 of 2020, the court dismissed the appeal with costs. This matter was finally determined by the court. Further, the subject matter in the instant suit, a premise located at Plot No. 416 Block J, Mbezi Medium Density, Area, Kinondoni Municipality, Dar es Salaam is similar to that in Land Application No. 413 of 2007 and Civil Appeal No. 424 of 2020 as evidenced at page 2 of the said Judgment attached as annexure BMA-E to the plaint. Finally, the parties are the same both in this suit and with Land Application No. 413 of 2007 again litigating under the same title. The only difference is on the names as in Land Application No. 413 of 2007, the parties were Adam Wamunza (The administrator of the Estate of the late Paul James )■ 5 vs Kinondoni Municipal Council and Raymond Peter Mbiiinyi, while in this instant suit, the parties are Kinoni Adam Wamunza (The administrator of Estate of the /ate Paul James, P.James, K, Paul James) against the defendants herein. Thus, there are additions of names of the plaintiff but the claim is the same over the same title. In that regard, I am at one with the counsel for the 1st defendant that, this matter is purely resjudicata. Therefore, the facts pleaded in the plaint suffice to constitute a point of res judicata on the face of the record to warrant disposal of the matter at hand as was stated in the case of Lyamuya Construction CompanyLtd vs Board of Registered Trustees of Young Women Christians Association of Tanzania, Civil Appeal No. 2 of 2010 (Unreported). Therefore, I sustain the preliminary objection that the present suit is res judicataXa Land Application No. 413 of 2007 and the subsequent appeals both at High Court and the Court of Appeal. Consequently, it is hereby dismissed with costs. It is so ordered. 17/9/2024 6