MARCO KAGHEMBE SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO. 5366 OF 2024

BY WAY OF COUNTER CLAIM MARKO KAGHEMBE.................. PLAINTIFF

VERSUS AHMAD MOHAMED MTUNDU (Legal Personal Representative of the Late Mohamed Mtundu)........... 1st DEFENDANT KIGAMBONI MUNICIPAL COUNCIL............................................... 2nd DEFENDANT THE REGISTRAR OF TITLES........................................................... 3rd DEFENDANT THE COMMISSIONER FOR LANDS.................................................. 4th DEFENDANT THE HONORABLE ATTORNEY GENERAL..........................................5th DEFENDANT

RULING 2nd to 10th December, 2024 E.B. LU VAN DA, J The Second, Third, Fourth and Fifth Defendant above mentioned raised a preliminary objection to the effects that the counter claim is incompetent on that the Plaintiff is precluded from bringing a counter claim in respect of the same cause of action after the previous matter has already been decided on merit in Civil case No.72/1994 making this suit res judicata. In the submission in chief, Ms. Mariam Matovolwa State Attorney for Second, Third, Fourth and Fifth Defendant submitted that the suit is incompetent for being res judicata for reason the Plaintiff had already instituted Civil Case No i 72/1994 suing the City Council of Dar es Salaam who is the predecessor of the Second Defendant. She submitted that, going deep dive into the Plaintiff's the claims they all revolves around the Second Defendant and other government offices are joined as a matter of compliance and mandatory legal requirements. She submitted that the Defendants in the present suit are under the same cause of action. She submitted that the cause of action under paragraph seven of the current plaint is for declaratory orders, payment of compensation and general damages in respect of Plots No.122 formerly No. 30, Block A, at Kigamboni, Dar es Salaam, argued that the Civil Case No 72 of 1994 had similar claims and reliefs sought by the Plaintiff against the

Second Defendant, the Court decided in favour of the Plaintiff. She submitted that, the principle of res judicata is well delivered (sic, provided) by the provisions of section 9 of the Civil Procedure Code, Cap 33 R.E. 2019 Also cited Tanganyika Motors Ltd vs Trans-continental Forwarders & Another [1997] TZHC 190 (29 May 1997). She submitted that the matter in issue and reliefs claimed by the Plaintiff to the counter claim in Land Case No 5366/2024 are directly and substantially in issue in the Civil Case No. 72/1994 which have been finally determined argued bars the jurisdiction of this Court to entertain the matter. 2 In reply, Mr. Mlyambelele Abedinego Levi Ng'weli learned Counsel for the Plaintiff submitted that after the conclusion of Civil Case No. 72 of 1994, in 2024 through a different cause of action, the First Defendant assisted by the Second, Third, Fourth and Fifth Defendant encroached the Plaintiff suit and demolished the wall and building thereon against the wishes of the Plaintiff, hence constituted a new cause of action against the said Defendants. He submitted that one of the key attributes for a suit to be res-judicata is a cause of action, citing Zuberi Paul Msangi vs Mary Machu, Civil Appeal No. 316 of 2019, CAT. Also cited Registered Trustees of Chama cha Mapinduzi vs Mohamed Ibrahim and Sons & Another, Civil Appeal No. 16 of 2008, CAT. He submitted that

since the current suit emanate from a different cause of action in cooperative to Civil Case No. 72 of 1994, argued that there is no way the current suit can be termed to be res judicata to the previous one. He submitted that for the principle of res judicata to stand, five conditions (sic) as described in Esther Ignas Luambano vs Adriano Gedam Kipalile, Civil Appeal No. 91 of 2014. He submitted that the matter at hand, parties (Defendants) are different in comparison to the previous suit, parties are not litigating on the same title, the cause of action is not the same to Civil Case No. 72 of 1994. He submitted that in law the Plaintiff can never realize the reliefs he is claiming currently by using what was adjudicated in Civil Case No. 3 72 of 1994. He cited Jacquiline Jonathan Mkonyi and Another vs Gausal Properties Limited, Civil Appeal No. 311 of 2020, CAT. That is all about submission for both parties. In his argument in reply, the learned Counsel for plaintiff does not dispel a fact that his client had previously instituted Civil Case No 72/1994 suing the City Council of Dar es Salaam who is the predecessor of the Second Defendant. The learned Counsel for Plaintiff did not contest an argument that in Civil Case No. 72 of 1994 parties were litigating in respect of Plots No. 122 formerly No. 30, Block A, at Kigamboni, Dar es Salaam. The learned Counsel for Plaintiff did

not dispute a fact that in Civil Case No. 72 of 1994, his client was declared a winner or lawful owner over a portion of land subject to this counter claim. In Civil Case No. 72 of 1994, parties were Marko Maghembe (Plaintiff, who is also the Plaintiff herein), City Council of Dar es Salaam (First Defendant who is the predecessor of the Second Defendant herein) and Mohamed Said Abdulrahim. In a judgment of Civil Case No. 72 of 1994, part of annexure MK3 collectively to the plaint, at page eight extreme bottom paragraph, the Resident Magistrate's Court of Dar es Salaam at Kisutu, held, 'This court has aiso been asked by the plaintiff to give a declaration that the plaintiff is the lawful owner and occupier 4 of the portion of Plot No. 30 Block A Kigamboni where the plaintiff's wall was unlawful demolished by the 1st defendant and which now is being occupied by the second defendant. That prayer is also granted' At paragraph twenty-three of the plaint to the counter claim, the Plaintiff pleaded that, 'That, after the 1st and 2nd Defendants acts of demolishing the Plaintiff's buildings it has come into the attention of the Plaintiff that the 3d and 4h Defendant did process a title deed and forthwith issue the 1st Defendant with the same, irrespective that the said title deed had dispossessed 178 square meters from the Plaintiff's Plot No. 30, without consulting him as neighbour and

in ignoring the unchallenged judgment and decree as referred under paragraph 14 of this counter claim' It is obvious that the suit land which was adjudged in favour of the Plaintiff herein vide Civil Case No. 72 of 1994, constitute the same portion of land, which the Plaintiff invite this Court to make a declaration that he is entitled to occupy it. In law, the plaintiff having obtained a judgment over the suit land which declared him as the lawful owner, is precluded to come back to this Court in disguise of seeking a declaration that he is entitled to occupy that portion of land which was adjudged in his favour by a court of competent jurisdiction. In the case of Zuberi Paul Msangi (supra), the apex Court ruled, 5 'Today, it is generally understood among the legal fraternity, that the doctrine of res judicata is based upon two other maxims ofRoman law. One, that, interest reipublicae ut sit finis iitum, that is, it concerns the State that there should be an end to law suits, and two, that, nemo debet bis vexari pro una et aedem causa, that is, no man should be vexed twice over for the same cause. Otherwise, no one can gainsay that, when the doctrine is applicable, if it is not given full effect, an abuse of the court process takes place' Therefore, the argument by the learned Counsel for Plaintiff that the encroachment and demolish of the wall and building, constitute a new

cause of action, is misleading. This is because at paragraph sixteen of the plaint, the Plaintiff pleaded that after the judgment in Civil Case No. 72 of 1994, he was compensated by the Government machineries as decreed (where he was decreed to be paid TZS 5,747,000 as value of wall unlawful demolished; TZS 3,659,500 being the total value of the properties taken away from the site). However, the Plaintiff concealed a fact as to whether he asked the Kisutu Court to enforce the award in respect of a portion of land (suit land) where he was declared the lawful owner, for purpose of official handing over under judicial process (execution) along other administrative arrangements to the office of the Third and Fourth Defendant. Had it being an enforcement was done under judicial fiat, the Plaintiff could bother to come back to this Court, by a way of 6 fresh suit in replica to Civil Case No. 72 of 1994, in furtherance of attempting to procure a second judgment, a cause which is prohibited under the dictum in Zuberi (supra). Arguably, the Defendants are different, to wit the First Defendant was not impleaded in Civil Case No. 72 of 1994, but as per the lucid argument of the learned State Attorney, that the Second Defendant herein is the successor of City Council of Dar es Salaam who was the First Defendant in the former suit and other government offices are joined as a matter of

compliance and mandatory legal requirements. Meaning that the Plaintiff's suit is still caught under a doctrine of constructive res judicata. Section 9 of Cap 33 (supra), provide, I bold a portion of emphasis to the point or constructive res judicata, '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' 7 In the case of Sabuni Detergents Limited and Another vs Haroon Daud Abdulla and Two Others, Commercial Case No 46 of 2006, HC at page 8 this Court quoted Indian case of Rajendra Kumar Versus Kelyan Air 2000 where it was held that; 'The doctrine of res judicata or constructive res judicata pre dominantly is a principle ofequity, good conscience andjustice. It would neither be equitable nor in accordance with the principle of natural justice that the issue concluded earlier ought to be permitted to be raised later in a different casd Therefore the suit (counter claim) of the Plaintiff is unmaintainable as against the Second, Third, Fourth and Fifth Defendant, because it is res judicata to the former suit

Civil Case No.72 of 1994. With that remark, I sustain the point that the counter claim is res judicata. It is strike out against the Second, Third, Fourth, Fifth Defendant. No order for costs 8 Judgment delivered in the presence of Ms. Sunday Msomi learned Counsel holding brief for Mr. Mlyambelele Abedinego Levi Ng'weli learned Counsel for the Plaintiff in the counter claim, also holding brief for Mr. Huruma Ntahena learned Counsel for First Defendant in the counter claim, in the absence of the Second, Third, Fourth and Fifth Defendant. 9