REHEMA PAUL KULABA SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 25980 OF 2024 MUTLU AHMET KORKMAZ........................... .„.............................. ...PLAINTIFF VERSUS REHEMA PAUL KULABA As a Guardian of Talya Mutlu Korkmaz (Minor)............................. DEFENDANT RULING 31/01/2025 to 25/02/2025 E.B. LUVANDA, J The Defendant named above raised preliminary objections vide a notice embedded into his written statement of defence: One, that the suit is not maintainable in law after the Plaintiff had withdrawn Application No. 162 of 2023 at Kinondoni District Land and Housing Tribunal without leave to re-file contrary to Order XXIII rule 1(3) of the Civil procedure Code, Cap 33 R.E. 2019; Two, the prayers by the Plaintiff claiming interests in the suit land in contrary to section 20 of the Land Act, Cap 113 R.E. 2019. For purpose of this ruling, I will deliberate on ground number one. Mr. Meswin Joseph Masinga learned Counsel for the Defendant prefaced his argument by citing Order XXIII rule (1), (2), (3) (sic) Cap 33(supra). He submitted that the Plaintiff did file Application No. 162 of 2023 before Kinondoni District Land and Housing Tribunal, where on 9/08/2023 Advocate Kashindi i Thabit appeared for the plaintiff and prayed to withdraw the suit without leave to re-file, (citing annexure RPK-A to the written statement of defence). He submitted that based on the provision cited above, the Plaintiff is barred from bringing this suit in absence of the prayer to withdraw with leave to re-file. He submitted that the suit is not maintainable, citing Noel Yona Lugenge vs Renzo Hero and Three Others, Commercial Cause No. 70 of 2023 (unreported); Principal Simanjiro Animal Husbandry Vocational Training Centre vs Arnold Makinda [1997] TLR 164, for a proposition that if the Plaintiff withdraw his suit without leave to re-file, he will be precluded from filing the same. The Plaintiff did not file a reply to the Defendant submission. According to annexure PRK-A which was attached to the Defendant's written statement of defence, specifically pleaded at paragraph ten, indicate that on 9/08/2023 Advocate Kashindi who appeared at the Tribunal on behalf of the Plaintiff, prayed for the suit to be withdrawn without costs so that they can proceed with matrimonial proceedings before Temeke One Stop Centre, whereby the learned Chairperson (presiding) granted the prayer by marking the application being withdrawn without costs. In the said order of the Tribunal, there was no reservation allowing the Plaintiff for re-filing in future. Indeed, the same could not be made without a prayer to that effects. Of course, even the 2 essence of withdrawal was to enable the Plaintiff to concentrated with a pending matrimonial proceedings at Temeke One Stop Centre. Order XXIII rule l(2)(b) Cap 33 (supra) require when withdrawing of the suit, the Plaintiff to seek for leave to institute a fresh suit in future, failure of which, the Plaintiff is precluded by sub-rule (3) from instituting any fresh suit in respect of the same subject matter or claim. For brevity, I reproduce the provision of Order XXIII rule 1(1), (2)(b) and (3) Cap 33 (supra), and I bold portion of interest, \1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the court is satisfied- fa) ...N.A.... (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in subruie (2), he shall be liable for such costs as the court may award and shall be 3 precluded from instituting any fresh suit in respect of such subject matter or such part of the claim' As I have hinted above, that at paragraph ten of the written statement of defence the Defendant pleaded that the Plaintiff had withdrawn Application No. 162 of 2023 without seeking or obtaining leave for re-filing another similar claim, as per annexure RPK-A. The Plaintiff did not bother to file a reply to controvert this factual averments, which amount to concession. In that regard, the Plaintiff is precluded in law from filing another suit based on the same claim. This suit is defeated for that reason. I therefore sustain the above preliminary objection. 4