KIPARA MAINA Others vs SAITOTI KIMAI KIVUYO EDITED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI LAND CASE NO.8328 OF 2024. KIPARA MAINA.................................................................................. 1stPLAINTIFF JOYCE KURAMBE................................................................................ 2ndPLAINTIFF KADED KURAMBE............................................................................... 3rdPLAINTIFF NAIRUKOKI KIPARA......................................................................... 4thPLAINTIFF SANE MAINA....................................................................................... 5thPLAINTIFF ESTA SANE...................................................................... 6th PLAINTIFF NATOIWOIKI ALARUBARE.........................................7th PLAINTIFF NEMBURIS SANE.......................................................... 8th PLAINTIFF VERSUS SAITOTI KIMAI KIVUYO.....................................................................1stDEFENDANT AMARIN SWAI....................................................................................... 2ndDEFENDANT EL1BARIK MEPOROO............................................................................ 3rdDEFENDANT. RULING 04th August & 2ndSeptember, 2024. Kahyoza, J.: Saitoti Kimai Kivuyo, Amarin Swai and Elibariki Meporoo (the defendants) raised a preliminary objection that the suit Kipara Maina, Joyce Kurambe, Kaded Kurambe, Nairukoki Kipara, Sane Maina, Esta Sane, Natoiwoki Alarubare and Nemburis Sane (the plaintiffs) against them was res judicata. The plaintiffs refuted the allegation, contending that the preliminary objection was not a pure point i of law which is argued on the assumption that all the facts pleaded by the other side are correct. It was not worth preliminary objection as it required evidence to prove it. Thus, the defendants' preliminary objection did not meet the test in the celebrated case of Mukisa Biscuit Co. V. West End Distributors Ltd [1969] EA 696 at 700, 701. There is one issue for determination, that is whether the suit is res judicata. The doctrine of res judicata as provided for under section 9 of the Civil Procedure code [Cap 33 R.E 2019], which states as that- "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." The doctrine of res judicata bar re-institution of cases which have been conclusively determined by a competent court. The objective and public policy behind the doctrine of res judicata is to ensure finality of litigation. See Umoja Garage v NBC Holding Corporation (2003) TLR 339. The undisputed facts of this case are that, Kipara Maina, and Sane Maina sued Amarin Swai and Elibariki Meporoo before this Court vide Land Case No. 3. 2022 praying for declaration that they are 2 legal owners of a piece of land measuring about 400 acres in which each plaintiff claimed 200 acres situated at Namalulu village of Nabera ward in Simanjiro District. This Court (Barthy J,) heard the suit and dismissed the plaintiffs' claims for failure to prove their ownership of the disputed land. It found that the defendants in that case proved that they owned 150 acres of the land located in Langai village. The Court also found that the plaintiffs could not sue to claim the land which was owned by other families as indicated in what it referred as exhibits Pl and P2. Kipara Maina and Sane Maina, the plaintiffs in Land Case No. 3. 2022 land described the bounders of the disputed land. Kipara Maina stated in the Plaint that the boundaries of his 200 acres of land were North- Imotorot dam, in South- Sane Maina, Langai Village in the East and the road to Imotorot in the west. While the boundaries for Sane Maina's 200 acres of land were Kipara Maina in the North, South Merian Maina, Langai village in the East and a road to Imotorot in the West. Having lost the claims in Land Case No. 3. 2022, Kipara Maina, and Sane Maina joined Joyce Kurambe, Kaded Kurambe, Nairukoki Kipara, Esta Sane, Natoiwoki Alarubare and Nemburis Sane to sue Amarin Swai, Elibariki Meporoo and Saitoti Kimai Kivuyo who was not in the former case. The claims in the subsequent suit (Land Case No. 8328/2024 are for a piece of land measuring 150 acres valued at Tzs. 3 320,000,000.00 located at Namalulu village within Naberera ward. The plaintiffs in the subsequent suit described the boundaries of their land. Kipara Maina, Joyce Kurambe, Kaded Kurambe, and Nairukoki Kipara, who are the 1st, 2nd, 3rd and 5th Plaintiffs, respectively stated in the Plaint that the boundaries of their land are Imotorot dam in North, in South- Sane Maina, Langai Village in the East and the road to Imotorot in the west. Sane Maina, Esta Sane, Natoiwoki Alarubare and Nemburis Sane, who are the 5th, 6th, 7th and 8:n Plaintiffs, respectively pleaded that the boundaries of their land are Kipara Maina in the North, South Merian Maina, Langai village in the East and in the West, it borders the road to Imotorot. It is against the above established facts the defendants raised the preliminary objection that the subsequent suit is res judicata. The parties argue the preliminary objection by way of written submission. The defendants' advocate Mr. Peres Seneto Parpai submitted in support of the preliminary objection that to prove that the subsequent suit is res judicata to the former suit, one must establish for conditions, which are- 1. The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit. 2. The former suit must have been between the same parties or 4 privies claiming under them. 3. The parties must have litigated under the same tittle in the former suit. 4. The court which decided the former suit must have been competent to try the subsequent suit. 5. The matter in issue must have heard and finally decided in the former suit. He submitted regarding the first condition which is the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit, in land case No.3 of 2022 where Kipara Maina and Sane Maina who are the 1st and 5th plaintiffs in this present Case No. 8328 OF 2024 claimed that each owned 200 acres and in land case No.3 of 2022 they prayed the court to order that they are the lawful owners of 400 acres. In this present case, No. 8328 OF 2024 they are also praying for an order to be declared owners of 400 acres with the same boundaries and same documents. He added that in land case No.3 of 2022 this Court made determination that 2nd and 3rd defendants in the present case No. 8328 of 2024 are the lawful owners of 150 acres. He went on to submit that the plaintiffs in the subsequent suit (case No. 8328 of 2024) are claiming that the defendants have trespassed into 150 acres, which they have already been declared lawful owners by this Court. Thus, this court cannot allow the plaintiffs to sue on a matter that has already been determined as it is 5 trite law that when a court finally disposes of a matter, it seizes to have jurisdiction over it. He cited the cases of Tanzania Telecommunication Company Limited and Others v. Telecommunications Tanzania Limited [2006] I EA 393 and Kamunye and others v The Pioneer General Assurance Society Limited (1971) EA 263. In the latter case, the court stated that- "The test whether or not a suit is barred by res judicata seems to me to be - is the plaintiff in the second suit trying to bring before the court, in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon. If so the plea of res-judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time." He also cited the case of Felician Credo Simwela Vs Quamara Massod Battezy & Another, De Civ. Appeal. No. 10 of 2020, Media Neutral Citation [2021] TZHC 6126 at page 6 the court held that- "The trial court had already reached its decision that the appellant was in faulty and ordered to face the consequences of his breach. It cannot be possible to allow him to institute a separate suit that would contradict the trial court's decision on the issue." 6 As to the second element that, the former suit must have been between the same parties or privies claiming under them. The defendant's advocate averred that the parties in Land case No 3 of 2022 are the same in this present case no 8328 of 2024 the 2nd 3rd 4th 6th 7th and 8th plaintiffs are the wives of 1st and 5th plaintiffs hence being privy to them and that they were mentioned during the trial in land case no. 3 of 2022 but they were never brought before the court. He argued further that, the trial judge in stated in the judgment that "Furthermore, the plaintiffs failed to provide any evidence that they were representing other family members as a representative suit. As a result, their legal standing to sue on behalf of these family members is questionable. This is in accordance with the legal principle of locus standi, which requires a person bringing a case to demonstrate a legitimate interest in the subject matter." He contended that the defendants are the same parties as the 1st defendant is privy to 2nd and 3rd as he is the one who sold the 150 acres to them and he even testified as DW2 in Land case No 3 of 2022. My Lord the judgment in land case no 3 of 2022 was that of rem and not persona hence the plaintiffs are trying to trick this court by joining their wives whom they were supposed to bring them in Land Case No.3 of 2022 hence bringing them in this present case it is an afterthought after the decision of this court. In the case of RUTH JACKSON MPUNDA 7 Vs YUSUPH MZEE NGORORO & 4 Others, LAND CASE NO. 57 OF 2023 Media Neutral Citation [2023] TZHCL and D 16439 at page 9 it was held; " It should be noted that the plaintiff does not dispute that David Robinson is her husband, so, he was litigating under the same title which, and therefore the Judgment concerning the disputed land is that of rem and not persona, hence, constructively res judicata under the circumstanced' Regarding the third element that the parties must have litigated under the same tittle in the former suit, the defendants advocate argued that parties in land case no. 3 of 2022 where Kipara Maina and Sane Maina vs Amarin swai and Elibariki Meporoo and in this present case no 8328 of 2024, the parties are Kipara Maina, Joyce Kurambe, Kaded Kurambe, Nairukoki Kipara, Sane Maina, Esta Maina, Natoiwoki Alarubare and Nemburis Sane versus Saitoti Kimai Kivuyo, Amarin Swai and Elibariki Meporoo. Constructively, the parties are litigating under the same title. The defendants' advocate cited yet the case of Witness Rhobi Elia v Khamis Abdallah Mduma & 2 Others, Land Case No. 300 of 2022, (unreported) to argue that it will still be res-judicata if the facts in the subsequent case would have been diligent had the if on page 7 of the Ruling, this Court stated that- "In other words, the suit is constructive res judicata, a suit that 8 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." He argued that the 2nd, 3rd, 4th, 6th, 7th and 8th plaintiffs cannot use the defence that they were not part in land case no 3 of 2022 as in this present case they are claiming under the same title of the 1st and 5th Plaintiffs. In the case of Diodes Kamuhabwa Vs Theonest Kamuhabwa, Civil Appeal No. 436 OF 2022 Media Neutral Citation [2024] TZCA 221 at page 19 the court held that- ”MZe are aware that the appellant was not a party in the previous matter at the Primary and District Courts respectively, but his allegation that he has inherited the land in dispute from his father, means that the appellant was litigating under the same title in the former suits and had legal interest or privity in the said action as correctly submitted by Mr Bengesi." The added that the test was stated in the Case of the Registered Trustee of Chama cha Mapinduzi (supra), where the Court quoted with approval the case of Jarwat Singh and Another vs The Custodian of Evacuee Property, New Delhi, 1985 AIR 1096, into which the Supreme Court of India, while examining section 11 of the Indian Code of Civil Procedure which is in pari materia with section 9 of the CPC observed that- "the test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action 9 which was the foundation of the former suit or proceedings" Regarding the fourth element which is that the court which decided the former suit must have been competent to try the subsequent suit, the defence advocate submitted that there is no dispute that the High Court Manyara Sub Registry in land case no 3 of 2022 which previously decided the matter was competent to try the parties herein and thus, it was proper to hear and finally determine them as it did. On the last element which is that the matter in issue must have heard and finally decided in the former suit, the advocate argued that this Court heard the parties and finally decided the former suit, Land case no. 3 of 2022. It declared the defendants as lawful owners of 150 acres. He was emphatic that all elements of res judicata are established. He added that the doctrine of res judicata hinges on the public policy that litigation must come to an end so that the parties can continue with their normal developmental activities. It therefore bars multiplicity of suits and ensures finality of litigation, and protecting an individual from multiplicity of litigations as it was held in the case of Umoja Garage vs NBC Holding Corporation [2003] T.L.R. 339. He prayed this Court to uphold the preliminary objection and dismiss the plaintiffs' suit with costs. The plaintiffs' advocate in his reply, he submitted that the preliminary objection was not a pure point of law which is argued on the io assumption that all the facts pleaded by the other side are correct. It was not worth preliminary objection as it required evidence to prove it. He submitted that the Court of Appeal in COTWU (T) Ltd Ottu Union and Another v. Honourable Iddi Simba, Minister of Trade and Industries and Others [2002] TLR, 88 quoted with approval the holding in Mukisa Biscuit Manufacturing Co. Ltd. v West End Contributors Ltd. [1969] EA 696, -700, where it was stated that- "The preliminary objection is in nature of what used to be demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to ascertained or what is sought is the exercise of the judicial discretion." He submitted further that, the cases the defendants' advocate submitted are distinguishable as the facts are different from the facts of case at hand. He argued that the facts of the former case (Land case no 3 of 2022) are different from the facts of this case. Having heard rival submissions from the parties' advocates, I will commence to determine the issue whether the preliminary objection the defendants' advocate raised was a pure point of law. The plaintiffs' advocate submitted that the preliminary objection cannot be determined without referring to pleadings and the evidence. The defendants advocate vehemently opposed the contention that ii the preliminary objection was not a pure point of law. He argued that there is no harm for the defendants in this case to make a reference to the plaint and its annexure and the exhibits in land case No. 3 of 2022. He cited the case of Moto Matiko Mabanga vs Ophir Energy Plc & Others (Civil Appeal No. 199 of 2021) [2021] TZCA 599 (22 October 2021) where the Court of Appeal held that- "At any rate, we hold the view that no preliminary objection will be taken from abstract without reference to some facts plain on the pleadings which must be looked at without reference examination of any other evidence." I wish to associate myself with the position that a court when determining the preliminary point law is mandated to examine the plaint and the annextures. Considering the preliminary objection by looking at the plaint does not render a preliminary objection not a pure point of objection. For the sake of clarity, I wish to quote in extenso the position of the Court of Appeal in the case of Moto Matiko Mabanga vs Ophir Energy Plc & Others (supra) the defendants' advocate cited. The Court of Appeal stated that- "To determine such an objection, the court needs only to look into the plaints and its annexures without any further facts or evidence to be ascertained in determining as to whether the suit is time barred. In the case of AH Shabani and 48 Others (supra) when 12 ive were faced with an akin situation, at page 8 of our Judgement, we stated that: - "It is dear that an objection as it were on account of time bar is one of the preliminary objection which courts have held to be based on pure point of law whose determination does not require ascertainment of facts or evidence. At any rate, we hold the view that no preliminary objection will be taken from abstract without reference to some facts plain on the pleadings which must be looked at without reference examination of any other evidence." Similarly, in the case at hand, having perused the pleadings and specifically the appellant's amended plaint and its annexures, where it is clearly indicated that the consultancy agreements subject to the appellant's" It is not stretching too far to refer to the pleadings when determining the preliminary objection as preliminary objection is not taken from abstract without reference to some facts plain on the pleadings which must be looked at without reference examination of any other evidence. To add to that it would be absurd if the law barred a court to consider the facts in the plaint when determining the preliminary objection as the facts in the plaint are proven facts as against the plaintiffs. Thus, the facts in the Plaint do not need to be proved against the Plaintiff. The facts in the Plaint are true facts as far as the Plaintiff is concerned. It is trite law that parties are bound by their pleadings. The court treats facts in the plaint as proved against the plaintiff that is why in 13 determining the preliminary objection, the court is entitled to consider the facts in the plaint. I therefore find no merit that the preliminary objection is not a pure point of law. I now determine the issue whether the current suit is res judicata. It is obvious, though disputed facts that, the facts in the former case are similar to the facts in the present case. I pointed above that, the boundaries of the disputed land in the former case are the same boundaries of the disputed land in the current case. Thus, the land subject of dispute is the same in both cases. The plaintiffs in the former suit claimed a piece of land measuring 150 acres located at Namalulu village within Naberera ward. The plaintiffs' claim, in the current case, is a piece of land measuring 150 acres valued at Tzs. 320,000,000.00 located at Namalulu village within Naberera ward. The reliefs are the same in both cases. In addition, it is not disputed that this Court determined the former case conclusively and that it was competent to do so. The only dispute is whether the parties are the same or they are claiming under the same title. In the former case, Kipara Maina, and Sane Maina sued Amarin Swai and Elibariki Meporoo whereas in the current Kipara Maina, Joyce Kurambe, Kaded Kurambe, Nairukoki Kipara, Sane Maina, Esta Sane, Natoiwoki Alarubare and Nemburis Sane sured Saitoti 14 Kimai Kivuyo, Amarin Swai and Elibariki Meporoo. The subject matter is the same in both cases. On the face of it one may argue that the parties are different but the plaint shows that the plaintiffs are related. As submitted by the defendants' advocate, 2nd plaintiff, Joyce Kurambe, 3rd plaintiff, Kaded Kurambe, 4th plaintiff, Nairukoki Kipara, 6th plaintiff, Esta Sane and 7th plaintiff, Natoiwoki Alarubare and 8th plaintiff, Nemburis Sane are wives of 1st Plaintiff, Kipara Maina, and 5th Plaintiff, Sane Maina. Depending of the facts, a husband and wife may be privy. I will come back to this. As to the defendants, it clear that they are privy. The defendants in the former case were Amarin Swai and Elibariki Meporoo whereas the defendants in the current case are Saitoti Kimai Kivuyo, Amarin Swai and Elibariki Meporoo. Saitoti Kimai Kivuyo was the original owner of the suit land who sold it to Amarin Swai and Elibariki Meporoo. Amarin Swai and Elibariki Meporoo trace their title from Saitoti Kimai Kivuyo. They have the same interest in the disputed land although Saitoti Kimai Kivuyo has currently relinquished and passed his title to Amarin Swai and Elibariki Meporoo. Back to the plaintiffs, the plaintiffs in the present cases are related. 2nd plaintiff, Joyce Kurambe, 3rd plaintiff, Kaded Kurambe, 4th plaintiff, 15 Nairukoki Kipara, 6th plaintiff, Esta Sane and 7th plaintiff, Natoiwoki Alarubare and 8th plaintiff, Nemburis Sane are wives of 1st Plaintiff, Kipara Maina, and 5th Plaintiff, Sane Maina. 1st Plaintiff, Kipara Maina, and 5th Plaintiff, Sane Maina in the current case were plaintiffs in the former case. The plaint demonstrates that 1st Plaintiff, Kipara Maina and his wives part of the disputed land jointly that is why the stated the boundaries of their joint land. Kipara Maina, Joyce Kuambe, Kaded Kurambe, and Nairukoki Kipara, who are the 1st, 2nd, 3rd and 5th Plaintiffs, respectively stated in the Plaint that the boundaries of their land are Imotorot dam in North, in South- Sane Maina, Langai Village in the East and the road to Imotorot in the west. Sane Maina, Esta Sane, Natoiwoki Alarubare and Nemburis Sane, who are the 5th, 6th, 7th and 8th Plaintiffs, respectively pleaded that the boundaries of their land are Kipara Maina in the North, South Merian Maina, Langai village in the East and in the West, it borders the road to Imotorot. I have pointed out that facts pleaded in the plaint are proved as far as the plaintiffs are concerned. I find that the two plaintiffs in the current case are the same plaintiffs in former suit, while the rest of the plaintiffs in the current case are privy to the plaintiffs in the former suit. Explanation VI to section 9 of the CPC, states when persons may be taken to be privy. It provides that 16 persons interested in a certain right are deemed to claim under the persons litigating. It states - "Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating." Simply stated, the above explanation means that if a person files a suit where others are interested in common with the that person, those other persons where not part of that suit but interested in the subject matter of the suit are deemed to claim under that person. In the present case, since Kipara Maina and Sane Maina instituted the suit claiming for land to which, they held in common with their wives or their wives had interest in, Kipara Maina's and Sane Maina's wives are regarded to have litigated in the former case. They barred from instituting another case. The Court of Appeal in Paniel Lotta vs Gabriel Tanaki &Others [2003] TLR 312 while considering Explanation VI under section 9 of the CPC state that- "That means a person does not have to be formally enjoined in a suit, but he will be deemed to claim under the person litigating on the basis of a common interest in the subject matter of the suit." 17 In eventually, I find that current suit is res judicata, as the parties are the same or privy to the parties in former case i.e. Land case No. 2/2022, the subject matter, the claim and reliefs are the same in both cases, the former case was adjudicated by a competent court and conclusively. I uphold the preliminary objection and dismiss the suit for being res judicata with costs. I order accordingly. Dated at Babati this 2nd day^f^teptembe r, 2024. J. R. Kahyoza JUDGE Court: Ruling delivered in the virtual presence Mr. Daudi Haraka advocate for the Plaintiffs and Mr. Kushua Advocate for the defendants. Ms Fatina (RMA) is present. J. R. Kahyoza JUDGE 2.09.2024 18