LAND CASE NO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND CASE NO. 000013505 OF 2024 CASE REFERENCE NO. 202400071000013505 fDR J l 1 A plaintiff NEEMA JOSECK MAGANGA (As the next friend of Caren Titus Gamnazi and Chris Gamnazi Minors................ .2nd PLAINTIFF VERSUS YUDA GIDEON MTIGI ..............................................................1st DEFENDANT TITUS MICHAEL GAMNAZI.................................. .2nd DEFENDANT MAIOMME SEMGULO t/a MASS AMD ASSOCIATES CO. LTO„„„03RS DEFENDANT RULING 17th September & 15thOctober 2024 GWAE, J The 1st and 3rd defendant named herein invited me to determine on, whether the suit filed by the plaintiffs namely; Neema Joseck Maganga and Neema Joseck Maganga (as the next friend of Titus Gamnazi and Chris Titus Gamanazi) is competent before the Court. The points of the law canvassed and relied by the defendants questioning competence of the suit are three, to wit;- i 1. This Court lacks jurisdiction to entertain the matter since it contravenes Order XXI Rule 62 of the Civil Procedure Code Cap 33 Revised Edition, 2019 (CPC) 2. That, the 2nd plaintiff was not in the objection proceedings namely, Misc. Land Application No. 7386 of 2024 at Kinondoni District Court objecting to the attachment of the suit property. Hence, in contravention of Order XXI Rule 62 of the CPC 3. That, the 2nd plaintiff did not attach, the ruling of the objection proceedings, which they claimed to have been denied When the matter was placed before me for hearing of the preliminary objection (PO) raised by the learned counsel for the 1st and 3rd defendant, Mr. Julius Moris, Mr. Benjamin Kiwanga and Mr. Joseph Kipeche, learned advocates appeared for the plaintiffs, 1st defendant and 3rd defendants respectively. However, the hearing of the PO was ordered to proceed by way of written submission. In the course of their submissions in chief, the defence counsel aforementioned abandoned the 3rd point of objection and proceeded arguing the 1st and 2nd limbs of objection. It was the submission by the defence counsel who raised the PO that, this court lacks the requisite jurisdiction since the plaintiff's suit ought to have been instituted in the District Court of Kinondoni where 1st plaintiff's Misc. Civil Application No. 7386 of 2024 was 2 instituted, heard and it was eventually dismissed. According to the view of the defence advocates, the suit ought to have been filed in the District Court of Kinondoni, which heard the original case, Civil Case. 139 of 2019 whose consent decree was issued on 8th day of April 2020 as well as the objection proceedings. Bolstering their arguments, the defence counsel invited the Court to refer to Order XXI Rule 62 of the CPC, the judicial decisions in Grace Furaha Lugoe vs. Furaha Ngeregere Lugoe, (Land Case 120 of 2017) [2020] TZHCLandD 59 (9 April 2020). Rosebay Elton Kwakabuli vs. Aziza Selemani and Others, (Misc. Land Application 553 of 2017) [2018] TZHCLandD 424 (13 July 2018). Supporting the 2nd point of objection, the advocates for the defence stated that, it is wrong for the 1st plaintiff to join the 2nd plaintiff who was not the party to the objection proceedings before District Court. Hence, it is their view that, the joinder of the 2nd defendant in this stage renders the suit incompetent. Responding to the defence submission in support of the PO, the counsel for the plaintiffs, Mr. Moris argued that, the 1st plaintiff is properly joined to the suit since the 2nd defendant was a privy to the objection 3 proceedings taking into account the named persons are the 1st plaintiffs children. He also argued that, the 2nd defendant is same person acting on behalf of her children as their next friend and that, the children were pleaded in the plaintiff's affidavit as well as in the ruling pertaining the objection proceeding. He urged this court to refer section 8 and 9 of the Civil Procedure Code (supra). Submitting on the 2nd point of objection, the counsel for the plaintiff stated that this court is clothed with jurisdiction to entertain the matter since has estimated value of Tshs. 500,000,000/=and that the dispute is over ownership of landed property that is House No. 158 located at Chachui Street, Book, Kinondoni Municipality. He cited section 167 (10 of the Land Act, Cap 133, Revised Edition, 2019 and section 3 (1) of the Land Disputes Courts Act, Cap 216 R. E, 2019 (LDCA). Having summarized the parties' arguments in respect of the PO raised by the 1st and 2nd defendants' advocates, it now the duty of the court to determine the same are sustainable or otherwise. As to the 2nd point on joinder of the 2nd plaintiff in this suit while she was not party to the objection proceedings. In essence, I am in agreement with the defendants' counsel that, the 2nd plaintiff was not a party to the 1st 4 plaintiff's application for objection proceeding conducted in the Kinondoni District Court. I am further aware of the acceptable principle that, the parties that are in the original proceedings should always appear in the subsequent case. It is perhaps apposite to endorse the decision of the Court of Appeal of Tanzania stressing the judicial practice in the case of Joseph Magombi vs. Tanzania National Parks (TANAPA), (Civil Appeal 114 of 2016) [2021] TZCA 464 (14 September 2021) where it was intel alia stressed that, "................ We think and agree with the Judges in the case of William Godfrey Urassa (supra) that, the parties who featured in the initial proceedings should be the same parties featuring before the High Court as well as this Court. We further say, that unless a proper procedure has been followed to change or alter a name, no change of party's name should occur. Nothing convinces us that at any stage of the proceedings in the present situation a change of a party's name was entertained. The change of names in the present appeal is thus unjustified." However, in this particular case where an objection is preferred and a party against whom an adverse order is made and such losing party, the applicant (1st plaintiff) is entitled to institute a fresh suit, parties may not necessarily be as used in an appeal, review or revision. I am of that view 5 due to reason that, in the course of filing a fresh suit after losing in the objection proceeding the one who is interested in instituting a fresh suit may add a part who was not a party to the objection proceedings. Thus, joinder or otherwise depends on the circumstances of the subject matter for example in a situation where the disputed property has already been sold. Here a buyer/purchaser must be added or any other interested person in the property like the children /2nd plaintiff in our instant case. Moreover, I find the 2nd defendant is not completely new party since the children are interested persons in the suit property and they were privies to the proceedings as rightly argued by the plaintiff's counsel. The 1st plaintiff is mentioned in the proceedings as guardian of the 2nd plaintiff. Hence, in my firm view, nothing significantly wrong to join the children in this suit in order to put the pleadings proper and eventually enable the court do justice to whoever is interested in the property in dispute. Now coming to the 1st limb of the defence objection. It is general principle under Order XXI Rule 62 of the CPC that, the remedy available for a person who has preferred an objection regarding execution of a decree or order by way of attachment of a property, which he claims an interest thereto or ownership, is to file a fresh suit. Therefore, the party against whom the 6 decision is made has no right of appeal or revision except to filing of a fresh suit. It thus sounds to me that, a decision in an objection proceeding is final and conclusive, connoting that, it is not amenable to appeal or revisional proceedings. The same legal position underscored in numerous courts' decision for example in National Housing Corporation vs. Peter Kassidi & Others (Civil Application 294 of 2017) [2022] TZCA 475 (27 July 2022) where the upper Bench interpreting the Order XXI Rule 62 of the CPC reasoned as hereunder: " Going by the above-cited two authorities, we take it to be firmly established law that, pursuant to Order XXI Rule 57(1) of the CPC, where an objection is preferred and an order determining that objection is subsequently made, in terms of Rule 62 of the same Order, the only remedy available to the party against whom that order is made is to institute a regular suit to prove his claim. Put in other words, after the decision on an objection proceeding has been made by a competent court, there is no remedy for appeal or revision. The rationale behind the above-stated stance of the law is not farfetched. We hope that it will be immediately appreciated even by the doubting Thomases that, not emanating from a suit, an order determining objection proceedings is not appealable. (See Ibrahim Mohamed Kabeke vs. Akiba Commercial Bank and 7 The same position was also recapped in Thomas Joseph Kimaro vs. Apaisaria Martin Carl Mkumbo and Oscar Carl Mushin (2002) TLR 369 "Where a claim or objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute but, subject to the result of such suit, if any, the order shall be conclusive". See also Mohamed Enterprises Tanzania Ltd vs. The Tanzania Investment Bank Ltd and Others [2012] 1 EA 173 Having held as herein, the issue is whether the filing of a fresh suit after the decision in objection proceeding is mandatorily filed in the court that made the order. In our case, it was Kinondoni District Court, which the defence counsel are attempting to convince the Court that, the competent court was the District Court. I have closely looked at the decisions made by my learned judges of the Court in Grace Furaha and Rosebay Elton (supra) and referred by the defence counsel but I am not persuaded, if I am to take that course. Despite the fact that, I am aware that, it is instructive that, a judge should not easily depart from a decision of his fellow judge of the court of the same hierarchy unless and until when it is right to do so. 8 (See Echaria vs. Echaria [2007] 2EA 139 and Dodhia vs. National and Grindlays Bank Limited and another [1970] EA 195). Essence of Order XXI Rule 62 of the CPC requiring an aggrieved party of the decision made in objection proceedings to file a fresh suit before a court of law in order to establish rights over the disputed property. It is thus my view that the proof of existence of right over suit property must be before a competent court not necessarily the one which determined an objection proceeding. I have further taken the stance that, objection proceedings may be preferred to an executing court of a decree be it Labour Court or Matrimonial Courts, or Land Courts or ordinary civil Courts like Kinondoni District Court at Kinondoni. However, the issue of competence of the court is dependent on the value of the subject matter (See Section 40 (2) (a) of the Magistrate's Court Act, Cap 11 Revised Edition, 2019 and section 33 (2) of the LDCA, territorial jurisdiction, nature of the case. For example execution of a decree of Labour Court at DSM attaching land, an objection proceedings has to filed before Labour Court if one who filed such objection, is aggrieved by the Order, will file a fresh case in the land courts as per provisions of 167 of the Act and 3 (1) of LDCA. It should be noted that jurisdiction is a creature of a 9 statute. Hence, courts clothed with jurisdiction to hear and determine land disputes are land courts and not District Courts or Resident Magistrate Courts as per as the existing laws. In Shyam Thanki and Others vs. New Palace Hotel (1972) HCD 92, it was held and I quote; "Since jurisdiction of any court of law is a creature of a statute, therefore it follows that, any case must be filed in a court or quasijudicial body vested with power by a statute. AH courts in Tanzania are created by statutes and their jurisdiction is purely statutory. It is an elementary principle that parties cannot give court jurisdiction which does not possess". Another scenario is where a Government's Institution or its agency or authority is to be joined in a fresh suit as necessary party or any other legal reason or new developments after the decision in objection proceedings. For instance registration of the suit property or sale after decision thereof, the proper forum is neither the subordinate Court nor the land tribunals but the High Court. This position is clearly stipulated under section 7 of the Government Proceedings Act, Cap 5, Revised Edition, 2019, which reads; "Notwithstanding any other written law, no civil proceedings against the Government may be instituted in any court other than the High Court." io See also Written Laws (Miscellaneous Amendments) Act No. 1 of 2020 amending section 16 of the Government Proceedings Act, Cap 5, Revised Edition, 2019 by adding subsection 4 immediately after subsection (3) of the Act). In the instant case, after the District Court had turned down the 1st plaintiff's objection proceedings, the remedy available was to institute a land case, as rightly done by the plaintiffs, in the competent land court. It is worth noting that, a dispute involving ownership of a piece is entertainable by land courts clothed with the requisite jurisdiction, in our instant dispute this court is conferred with power to hear and determine it as the estimated value of the suit property is more than 300,000, 000/= In the light of the foregoing discussions, I hereby overrule the preliminary objection on both points raised by the 1st and 3rd defendants as the same are very porous. The 1st and 3rd defendant shall bear the costs of the preliminary objection. Ordered accordingly DATED and DELIVERED at DAR ES salaam, this 15th October 2024