OILCOM SAFII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 23076 OF 2024 OILCOM TANZANIA LIMITED............................. ....... ................ APPLICANT VERSUS THE REGISTERED TRUSTEE OF THE EVERNGELISTIC ASSEMBLIES OF GOD TANZANIA..................................... 1st RESPONDENT THE REGISTRAR OF TITLES............................................. 2nd RESPONDENT THE ATTORNEY GENERAL................................................... 3rd RESPONDENT RULING 30/10/2024/ 05/11/2024 N.E. MANDIA, J This ruling emanates from a preliminary point of law raised by the 1st Respondent while filing her counter affidavit opposing an application for Mareva Injunction filed by the Applicant. The 1st Respondent's preliminary objection is that the Applicant's application filed under s. 2(3) of the Judicature and Application of Laws Act [Cap 358 R.E 2019] is Res Judicata and contrary to section 9 of the Civil Procedure Code [Cap 33 R.E 2019]. As a matter of practice, I found it necessary to disposed the preliminary objection raised before going to the merit or demerit of the application. Hearing of the preliminary objection proceeded orally. The 1st i Respondent enjoyed the services of Ms. Crescensia Rwechungura, learned counsel while Mr. Kennedy Mgongolwa represented the Applicant. In support of the preliminary objection, Ms. Rwechungura submitted that section 9 of the Civil Procedure Code(supra) restricts the Court from entertaining any suit which has been determined by a Court of competent jurisdiction. It also restricts the Court from entertaining any application which was heard and determined by the Court where the parties were heard and determined in the previous application on the same subject matter between the same parties. Ms. Rwechungura contended that the Applicant is seeking Mareva Injunction to restrain the Respondent's particularly the 1st Respondents, his workmen, agents, or other persons acting on behalf of the 1st Respondent from evicting or interfering with the Applicant's peaceful enjoyment of the suit premise pending expiration of 90 days' statutory notice served upon the 2nd and 3rd Respondents in order to file the main suit against the Respondents. The counsel contended further that the 1st Respondent had previously instituted Land Case No.245 of 2004 in this Court against one HAWA MTUMWA SELEMANI who was the administratix of her late father MTUMWA SELEMANI. That in the said case the 1st Respondent had also 2 sued the Commissioner for Lands and the Attorney General in respect of Plot No.l Block J, Ubungo, Urafiki Dar es Salaam (herein referred as the suit premise). That the said Land Case No. 245 of 2004 was heard and determined to it's finality by Hon. Mgetta, J. The counsel submitted that, after determination of the said Land Case, the 1st Respondent filed an application for eviction against the Applicant who was occupying the suit premise. That while the application was still pending, the Applicant filed objection proceeding via Misc. Land Application No. 369 of 2022 claiming to be the lawful owner of the suit premise after purchasing it from one HAWA MTUMWA SELEMANI who in Land Case No. 245 of 2004 was adjudged not to be the lawful owner of the suit premise. The counsel submitted further that the objection proceeding was heard and dismissed for the reason that the Applicant's claim has already been considered and decided by this Court in Land Case No. 245 of 2004. Ms. Rwechungura submitted that thereafter, the 1st Respondent resumed with her execution proceeding which was pending before the Court. Ms. Rwechungura was of the view that since the Applicant purchased the suit premise from HAWA MTUMWA SELEMANI, she acquired no better 3 title that that acquired by HAWA MTUMWA SELEMANI in Land Case No. 245 of 2004. She submitted therefore, that the instant application cannot be entertained by this Court because it is Res Judicata and the court is Functus Officio. She viewed the instant application as a delaying tactic to deny the 1st Respondent to enjoy the fruit of her decree and, that if this Court examines this application and the former application No. 369 of 2022, it will discover that it involves same parties holding same positions. Ms. Rwechungura submitted that section 9 of the Civil Procedure Code(supra) forbids the Court from entertaining an application of that nature. She finally prayed for the Court to dismiss the application with costs in order to enable the 1st Respondent to proceed with her execution proceeding pending before Hon. Lukindo, Deputy Registrar. In rebuttal, Mr. Mgongolwa, submitted that the Applicant was not a party in the Land Case No. 245 of 2004. That, when the 1st Respondent was executing her decree, the Applicant became aware of the execution proceedings and to him the available remedy was to file an objection proceeding through Misc. Land Application No. 369 of 2022 which was dismissed for the reason that the Applicant had no better title. Mr. Mgongolwa submitted further that, under Order XXI Rule 62 of the Civil 4 Procedure Code(supra), a person who is aggrieved by the decision in objection proceeding may institute a suit to establish the right he/she is claiming. The counsel referred in the case of NATIONAL HOUSING CORPORATION v. PETTER KASIDI & 4 OTHERS. Civil Application No.294/16 of 2017 at p.9, that: "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". Mr. Mgongolwa submitted that following the decision in Misc. Land Application No. 369 of 2022, the Applicant existing legal remedy is provided under Order XXI Rule 62 of the Civil Procedure Code(supra). However, before instituting the said suit the Applicant is required to comply with the conditions stated in the Government Proceeding Act [Cap 5 R.E 2019] which in essence require the Applicant to issue a 90 days' statutory notice, and the same was issued. He contended that section 9 of the Civil Procedure Code(supra) is not applicable in the present circumstance as for it to be applicable the following conditions should be met: parties should be the same and; there should be same issues for determination among those same parties v-V 5 Mr. Mgongolwa was of the view that, since those two paramount conditions do not exist in the instant application, the principle of Res Judicata is not applicable. The counsel submitted further that it is a misconception that the remedy available to the applicant is to file an appeal against the objection proceedings. He disputed the submission by Ms. Rwechungura that the Applicant has got no better title. In his view that submission is interfering with the merit of the matter. That this Court has no powers to discuss the issue of ownership or otherwise because by doing so it will be pre-empting the intended suit. The counsel submitted that the intended suit is as per the law and it will be instituted upon expiry of the 90 days and what is before this Court is an application for preservertory orders in order to avoid loss which would occur before the institution of the intended suit. He prayed for the preliminary objection to be dismissed with costs. Rejoining the applicant's submission, Ms. Rwechungura, disputed Order XXI Rule 62 that is not applicable to the case before hand. She was of the view that if the Applicant was dissatisfied with the eviction notice served by this Court, his remedy was to file the suit against the Respondents and not the objection proceeding. She reiterated her earlier 6 submission that the present application is Res Judicata and the Court is Functus Officio. Having heard the counsels of both parties and after perusing the records of the application, I find it necessary to give a brief background of the application as gathered from the pleadings that: sometimes in 2004 the 1st Respondent sued HAWA MTUMWA SELEMANI, the Commissioner for Land and the Attorney General in Land Case No.245 of 2004 in respect of ownership of Plot No.l Block J, Ubungo, Urafiki Dar es Salaam. On 30th June, 2015 judgment was delivered whereby the 1st Respondent was declared to be the lawful owner of the suit premise and consequently the Commissioner for Lands was ordered to issue Certificate of Title to the 1st Respondent. Basing on the said judgment, the 1st Respondent filed execution proceedings. The applicant became aware of the execution proceedings hence, filed objection proceeding in Misc. Land Application No. 369 of 2022 which was later dismissed for the reason that the Applicant's claim has already been considered and decided by this Court in Land Case No. 245 of 2004. Then the Applicant filed the instant application praying for an order for Mareva injunction to restrain the Respondents, more particular 7 the lsr Respondent from evicting or interfering with her peaceful enjoyment of the suit premise. Coming to the point of preliminary objection, the Apex Court of the Land in the case of Paniel Lotta v. Gabriel Tanaki & Others [2003] TLR 312 has laid down five conditions of Res Judicata which when coexistent, bars a subsequent suit as follows: - 1. The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; 2. The former suit must have been between the same parties or privies claiming under them. 3. The party in the subsequent suit must have litigated under the same title in the former suit. 4. The matter must have been heard and finally decided. 5. That the former suit must have been decided by a court of competentjurisdiction. The rationale of the doctrine of Res Judicata is to bar the multiplicity of suit and guarantee finality to litigation. It makes a conclusive and final judgment between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit. As for the first and third condition of Res Judicata, whether the matter is directly and substantially in issue in the subsequent suit must 8 have been directly and substantially in issue in the former suit and that, the party in the subsequent suit must have litigated under the same title in the former suit. After a going through the record of the Applicant's application, more particular paragraph 2 of the affidavit of one SALMIN SAID SALMIN, the principal officer of the Applicant, I have noted that the Applicant is claiming to be the lawful owner of the suit premise described as Plot. No. 1 Block J Ubungo, Urafiki Dar es Salaam with a Certificate of Title No. 56397 which she purchased from one HAWA MTUMWA SELEMANI. Ms. Rwechungura submitted that the instant application cannot be entertained by this Court because it is Res Judicata and the court is Functus Officious the subject matter was directly and substantially in issue in Land Case No. 245 of 2004 and that it was litigated on the same title. On the other hand, Mr. Mgongolwa contended that section 9 of the Civil Procedure Code (supra) is not applicable in the present circumstance hence, the matter is not Res Judicata. Mr. Mgongolwa however, did not dispute that the subject matter in the previous case and instant suit are the same. The records show that Land Case No. 245 of 2004 in the High Court Land Division, the Registered Trustee of the Evangelistic Assemblies of God Tanzania, the 1st Respondent instituted a suit against the 9 Commissioner for Lands, the Attorney General and HAWA MTUMWA SELEMANI, the subject matter of that suit was described as Plot. No. 1 Block J Ubungo, Urafiki Dar es Salaam with a Certificate of Title No. 56397. The Applicant in the instant application under paragraph 2 of the affidavit of SALMIN SAID SALMIN is claiming that she is the lawful owner of the suit premise which she purchased from one HAWA MTUMWA SELEMANI. To substantiate her claims, the Applicant has attached a Sale Agreement showing that the subject matter at hand is a property described as Plot. No. 1 Block J Ubungo, Urafiki Dar es Salaam with a Certificate of Title No. 56397. Looking at the subject matter of the application at hand, it is evident that the same subject matter was in issue in Land Case No. 245 of 2004. It is worth noting that the judgment delivered in the said land case has the effect of barring subsequent proceedings on the same cause of action, and the same subject matter even where the parties are different. The matter becomes constructively Res Judicata. Therefore, the applicant is barred from instituting the intended land case involving the same subject matter. On the second condition that; the former suit must have been between the same parties or privies claiming under them. Looking at io proceedings of Land Case No. 245 of 2004 I found that the parties were the Registered Trustee of the Evangelistic Assemblies of God Tanzania the 1st Respondent v. the Commissioner for Lands, the Attorney General and HAWA MTUMWA SELEMANI. In case this application is granted, the parties in the intended suit will be Oilcom Tanzania Limited, the Applicant herein v. the Registered Trustee of the Evangelistic Assemblies of God Tanzania the 1st Respondent, the Registrar of Titles and the Attorney General. It is undisputed that the Applicant was not a party to the previous land case but in this application and the intended land case she will be a party. However, the records revealed that the 1st Respondent and the Attorney General were parties in the previous suit with claims related to the same subject matter, a suit premise described as Plot. No. 1 Block J Ubungo, Urafiki Dar es Salaam with a Certificate of Title No. 56397. Therefore, it is my considered view that the instant application is a subsection of the doctrine of Res Judicata. In other words, the intended suit if this application is granted is constructive Res Judicata, a suit that sets to bar any claims being raised in a later proceeding if the claim on the same subject matter ought to have been raised and decided earlier. li On the fourth and fifth conditions, the matter must have been heard and finally decided by the Court with competent jurisdiction to try the suit. It goes without saying that the High Court, Land Division in Land Case No. 245 of 2004 was competent to try the said land case and the case was heard and finally determined on merit whereas the 1st Respondent was declared the lawful owner of the suit premise. These conditions have been also undisputedly met. Having said so, I hold that the instant application is a constructive Res Judicata and this court is Functus OfficioXn determine it. Guided by the above conditions I find merit in the preliminary objection raised by the Ms. Rwechungura. The above finding sufficiently disposes of the application at hand. I, therefore proceed to dismiss the application with costs. 12