20031016 TZHC Arusha

IN THE HIGH COURT OF TANZA~IA AT ARUSHA i CIVIL APPEAL NO. 10 OF 2002 (Original from District Court of ARUSHA C.C.23/2001) I NARIVI THOMAS ... •••••• 1 APPELLANT - Versus- HOSEA LOTOVUAKI... ... ... 'RESPONDENT JUDGMENT MSOFFE, J. On 26/2/2002 the District Court of Arusha gave a Rul~ng in its Civil Case No. 23/2001 upholding the defendant (respondent herein) in a preFminary objection which read as follows:- ! "(a) This suit is Res-judicata in that the matter was condusively I decided upon by Arusha Regional Land Tribunal vide Civil Cause No. 8 of 1980 whose judgment was deliverei:I on 3/12/85. (b) The suit is bad in law for failure to disclose any cause ofaction ". The above Ruling is the subject of this appeal. Mr. D'Souza ~earned counsel is advocating for the appellant while Mr. Sabaya learned advocate is appearing on behalf of I the respondent. Learned counsel have filed written submissions in support of the parties' respective positions in the matter. I Learned counsel have addressed me at length on the merits or otherwise of this appeal. While I commend them for the effort and industry in doing so they will, I hope, 1 excuse me that for reasons which will be apparent hereunder I will not dwell on all the points they have canvassed therein. Instead, I will concetratei on ground no.2 of the Additional Grounds of Appeal which reads:- 2 "2. That it was incompetent for the District Court, Arusha to o the Enaboishu Primary Court by a letter to strike offEnabo Primary Court c.c. 117/2001 ". It is common ground that Civil Case No. 117/2001 of the Enaboishu Pri Court was instituted by the appellant. According to the available record it was fi thereat on 18/6/2000 vide ERV No. 12195133 of that date. The case involves/invo these same parties and the same subject matter. At the same time on 2/10/2001 the appellant filed Civil Case No. 23/2001 with the District Court of Arusha. Again, the parties in this latter case are the same, and the subject matter is also the same. It will ', follow, therefore, that Civil Case No. 23/2001 was filed while Civil Case No. 117/2001 was pending. In this regard, the case at the District Court was filed while a matter involving the same parties and the same subject matter was res sub judice. One wonders why this was allowed to happen. However, blame, if any, ought, in my view, to have been attributed to the appellant who appeared not to know the appropriate Court in which to file the case. All in all, the problem was further compounded by an Order of the Enaboishu Primary Court given on 3/10/2002 which read as follows:- "Amri: Kulingana na agizo la Hakimu Mkazi wa Wilaya kwa barua yake yenye Kumb.Na: JYIDM40/C. l/Vol.J/32 ya tarehe 1.10.2001 shauri hili la Madai linafutwa na Mdai ameshau- riwa afungue shauri lake la Madai katika Mahakama ya Mkoa kwa kuwa ardhi yenye mgogoro imepimwa na hivyo Mahakama ya Mwanzo haina mamlaka kusikiliza mashauri ya mashamba yaliyopimwa ". It will be apparent that the above judicial Order was given on the basis of an · administrative letter. Indeed, in my scrutiny of the record I have not come across a judicial Order given in the form of a revision or otherwise directing that judicial proceedings in Civil Case No. 117/2001 be terminated. In the absence of such Order, the ~ - - Primary Court had no legal basis to make the above Order. That being the position, then / \he following are the consequences:- / \ , Civil Case No.ll7/2001 is still pending before the said Court and it is accordingly ~red with the result that.in e1'ercise ofmy revisional powers I hereby quash and set , \ e r of3/l 0/2002 given by the Pnmary Court at Enaboishu. . 3 Two, since a suit involving the sarrie parties and the same subjec( matter cannot be heard in different Courts at the same time, I hereby declare a nullity the proceedings (and Rulingofcourse) in Civil Case No. 23/2001 of the District Court of Arusha. I am taking ' this action because, the ca~e was, no doubt, being pursu~g)n,the pistric( ~ourt while a I' . ·- '• ·. . . . suit involving the same parties . ' an.ct' the same subject matter was. res ,. ' . . .' sub judice . . before . the . ' : . ·, Primary Court.: ·· ·~ ·· · In the light of the fore·goirigr~asorts, I acco.rdingl/alloW 'the appe~1 ·a1beitfor reasons which were partly "authored" by the appellant himself in his quest for "forum shopping". In the circumstances, it will only be fair that each party bears its own costs here and the Court below. For the avoidance of doubt, unless and until a judicial Order is made in the manner I have tried to demonstrate above the parties are free to pursue Civil Case No. 117/2001 at the Enaboishu Primary Court. I may also add that the parties are also still at liberty to move either the District Court or the Primary Court in· any judicial Order they will deem fit and just in determining the controversy or issue at stake between them. J.H~. JUDGE 16/10/2003 Date: 16/10/2003 Coram: P. B. Khaday - DR For Appellant: D'Souza For Respondent: D'Souza/Sabaya Ruling read out today 16/10/2003 in the presence of Mr. D'Souza counsel for the appellant, who also holds brief for Mr. SabaY, counsel for the respondent. ' I P.B. I y/' DISTRIC I TRAR A A 1 3 JHM/jn.