nolasko hyacint hyera vs registered trustees of chama cha mapinduzi 2015 tzhc 2288 25 august 2015

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT IRINGA LAND CASE NO. 9 OF 2013 NOLASKO HYACINT H Y E R A ................... PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF ............ DEFENDANT CHAMA CHA MAPINDUZI 11/08/2015 & 25/08/2015 RULING Kihwelo J. The Plaintiff filed this suit on 5th September, 2013 claiming among other things the sum of TShs. 135,286,400/= as specific and general damages arising from the breach of lease agreement. The Plaintiff was not represented. The Defendant has instructed Dodoma Law Firm to defend the suit and Mr. A. Kanyama appeared from the said law firm. On 13th November, 2013 the Defendant filed a Written Statement of Defence and in addition to the Written Statement of l Defence the Defendant filed a notice of preliminary objection to the effect that; 1. The purported land case is res judicata. 2. The purported land case is bad at law fo r failure to disclose a cause o f action. 3. The purported land case is misconceived. Since the Plaintiff was not represented and in order to afford him fair hearing the court directed that the preliminary objection be argued by way of written submission which both parties consented to and dully filed the written submission as scheduled. Arguing in support of the first limb of the preliminary objection the counsel for the Defendant contended that the Defendant filed a Land Application at the District Land and Housing Tribunal of Iringa Land Case No. 20 of 2012 in which the Plaintiff in this suit was the respondent who in his defence raised a counter - claim of TShs. 135,286,400/= as damages arising from the breach of a lease agreement. The Defendant’s counsel submitted further that the Plaintiff failed to prove the counter - claim which was consequently dismissed whereas the application was decided in favour of the Defendant. To buttress further his argument the counsel for the Defendant cited Section 9 of the Civil Procedure Code Act, Cap 33 RE 2002. In his rejoinder submission the learned counsel for the defendants forcefully argued that the present suit is res judicata because it is brought before the court with the same parties and the same cause of action being the claim of TShs. 135,286,400/= as the counter - claim in the application. On the second ground of the preliminary objection the Defendant’s counsel submitted that the suit is bad in law for failure to disclose the cause of action or that the cause of action is defective. Mr. Kanyama valiantly argued that the failure by the Plaintiff to pay rent throughout the contractual period nor carry out the renovation as agreed precludes the Plaintiff from instituting the present suit and claiming that amount of money. He cited the case of Musa Ng’andwa V Chief Japhet Wanzagi & 8 Others (2006) TLR 351. In response to the first limb of the preliminary objection the Plaintiff contented that the present suit is not similar to the one which was filed at the District Land and Housing Tribunal although parties are the same. He further argued that for the doctrine of Res judicata to apply there must be same parties and same issue and because in the present case some elements of Res judicata are missing then the suit is not barred by the doctrine of Res judicata. As regards the second point of preliminary objection the Plaintiff submitted that the plaint discloses the cause of action since there is breach of lease agreement which led the Plaintiff to claim the sum of TShs. 135,286,400/= as specific and general damages. Having carefully considered the above submissions two issues are central to be considered one whether the present suit is barred by the doctrine of res judicata and two whether the Plaint discloses a cause of action. I will start with the doctrine of res judicata. The law is very settled and clear on the applicability of the principle of res judicata and this is clearly restated in the case of Registered Trustees of Chama cha Mapinduzi V Mohamed Ibrahim Versi and Sons, Civil Appeal No. 16 of 2008 Court of Appeal of Tanzania (unreported), the Court stated inter alia that; “It is well settled law and leading authorities are at one, that in order fo r the plea o f res judicata to successfully operate, the follow ing conditions must be proved; namely, (i) the form er suit must have been between the same litigating parties or between parties under whom they or any o f them claim; (ii) the subject matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the form er suit either actually or constructively; (iii) the party in the subsequent suit must have litigated under the same title in the form er suit; (iv) the matter must have been heard and finally decided; (v) that the form er suit must have been decided by a court o f competent jurisdiction Needless, to say that the above elements of res judicata applies squarely in the present suit where the Plaintiff was originally sued in Land Application No. 20 of 2012 in which he raised a counter - claim of TShs. 135,286,400/= which is also claimed in this present suit and that the same arose under the same dispute in relation to the lease agreement entered upon between the parties and that the former suit was finally and conclusively decided by the competent tribunal. I am therefore in no doubt that the present suit is barred by the doctrine of re judicata and this point by itself suffices to rest the case. The Plaintiff could have taken another legal cause when he lost in Application No. 20 of 2012. However, for the sake of argument purposes I wish to address the second and last issue of cause of action. This was well articulated in the case of Jerej Sharrif & Co Ltd V Chotai Fancy Stores (1960) EA 374 that; “It determining a cause o f action, a plaint should be looked at and anything attached to it That, the Plaintiff is simply required to prove from the plaint and its annextures i f any, that he has facts which give him right to judicial redress or relief(s) against the Defendant”. The above position was celebrated in the famous case of Auto Garage and Others V Motokov (number 3) [1971] EA 51. A cursory perusal to the plaint and the attached annextures reveals nothing but the fact that there is a dispute in relation to lease agreement hence there is no doubt that there is a cause of action. Therefore all the above views considered. I am satisfied that this suit is barred by the doctrine of res Judicata. The Plaintiffs views on the present suit are both faulty, regrettably in accurate and seriously wanting in legal terms. It must fail. It is thus dismissed in its entirety with costs. It is so ordered. JUDGE 28 / 08/2014 Right of appeal is fully explained. P.F. KIHWELO JUDGE 28 / 08/2014