19820406 TZHC Dar es Salaam

IN THE HIGH COURT OJJ7 TANZJUUA AT DAR ES SALii.AM CIVIL-~ NO. 18 OF 1980 (Original DSM R.11.'s Civil Case Ho. 78 of 1980 and R.M. ·1 s Misc~ Civil Case No.· 93 of 1980) TEE REGISTRAR OF BUILDINGS. -· . . 11.PPELIJINT Versus JUJENY IMPORT/EXPORT COW? fu\JY LIMITED •• • RESPONDENT JUDGMENT BAiliiTI, Ag. J. - This is an appeal by the Registrar of -~ Buildinc;s against the order dated 25/7/80 of Ewaharaa S~R.M.; I in the Resident MagistratesCourt at Dar es Salaan Misc. R.M. Civil Case No. 93 of 1980. Tb.ere are two civil CasEf3 involved in this appeal nrunely civil case No. 78/80 and Misc. Civil Case Ifo. 93 of 1980. It is necessary here to give out a detailed account of these cases before one can understand the gist of this appeal. I will therefore briefly set out the relevant facts leading to this appeal. The respondent Jujeny Import and Export Company Limited filed a suit in civil case No. 78/80 praying for a pernanent injunction to restrain the Registrar of Buildings who was the defendant from evicting the cofilpany who were the plaintiff from the suit premses and from interfering with its occupation of the suit preraises. Also the respo~dent prayed for a declaratory order that it is th_e tenant of the suit premises. In the plaint the respondent/Plaintiff alleged that in accordance vvith the defendant's agreement promise (sic) to allocate a house to the plaintiff as soon as one falls vacant, the plaintiff entered into the suit premises 7 and as a resul~ of this entry the defendant going against the said agreementror·pr.aw.ae wns then threatening to evict the plaintiff and was interfering with the plaintiff's occupation of the said suit premises. Subsequently before even the defendant had been served to file a written statement of defence, the plaintiff --1<;1.de an application for a. ter.1porary injunction pending the finali:.:.c:. ..~on of the suit. This injunction was to restrain the defendant from evicting the plaintiff ~roo the suit preoises until the case is heard and · detennine_d_, and. the purpose of the injunction was to mo.:inntain the · status· quo. This is what the plaintiff's affidavit contained • . •••.. /2 l- Then again before the application was heard a prohibitory order was issued eA--parte on 21/6/,80 to restrain the defendant from entering the suit premises and from evicting or threatening to evict the applicant plaintiff from the suit premises. This prohibitory order was issued by Ilwahama S.R.M. on 21/6/80 when the application for the same matter was to be heard on 25/6/80. There is nothing to show that Bwahama s .• R.M. recorded anywhere in the case file that he was ordering as he did or that he was issuing a prohibitory order, nor is there another affidavit or chamber summons for this prohibitory order which was issued ex-parte. OIi. 25/6/80 the application came befo:;::·e Mandia R.M. for hearing. He was not aware of t.he prohibitory order which had been issued ex-parte by his brother Bwahama s.R.M. because there was nothing in the court record to show that there was an order to .that effect or that there was an ex-parte application. Ihndio R.,I.1, did :hot hesitate to hear the application, He heard it and ruled that because of failure to comply with the procedure laid down in order XXXVII Rule 3 in issuing the prohibitory order ex-parte on 21/6/80, this irregularity was material and going by Khamis Vs. Salim Khamis &·anor (1·956) 23 EJ\.CA 195 and Iilulira Vs. Das & anor (1971) E.A. 227 the court could correct this irregularity in procedure without cre.nting the impression tha.t it is revising its own order. He then vrent on to set aside the prohibitory order issued on 21/6/80 by Ilwahama's M.R. Then on 28/6/80 he heard the application for a temporary injunction and dismissed it on grounds that the plaintiff was a house breaker who was asking for an equitable remedy with soiled hands. He held that thG plaintiff was a tresspasser who had committed criminal acts of malicious damage to property and criminal tresspass. The charnbGr application was based on criminal actions and the court could not condone such illegality or grant the application. He however did not find it proper to order for eviction and compensation and advised the defendant to file a suit to recover damages for loss and secure an order for eviction. 1Jaturally the plaintiff bed no longer any interest in this case, So the suit vvas not heard, because, I believe, all the issues in the suit had been covered by the ruling of Mandia R.M., on 28/6/80. · · There was however another development in this matter. The plaintiff Jujeny Import and Export Co.Ltd. filed another case in court namely Misc. Civil Cause lfo. 93 of 1980 by presenting an affidavit to court on or before 29/7/80. The uiatter in issue was 11.aterially and substantially the same as that in issue in Civil Case No.78/80 • • ,; •• /3 - 3 - The chamber application in ~liscellaneous Civil Cause No. 93 of 1980 was fixed for hearing on 6/8/80e But tmfortunately, the application could not be heard on that date and it was adjourned to 21/8/80. Even on this date it could not be heard. Meanwhile on 25/8/80 the company's advocate l'IIr. Adoko for the plaintiff company in civil case Hoo 78/80 applied for leave to withdraw from the suit i .• e. civil case No. 78/80. Probably what he meant was leave to withdraw the suit. In any case his appiication was granted and the suit was withdrawn with the Court's permission on 25/8/80. That was the end of Civil case No. 78/80. It should be noted here that, despite I;Iandia RM 1 s ruling on 28/6/80 in civil case No. 78 of 1980 dj_sfilis~ing the application for a temporary injunction, another temporary injunction was issued by Bwahama· SRM on 25/7/80. Here again there is nothine on record to show that the applicant (Jujeny Co.) in i'!Iisc. Civil Cause - 93/80 had applied for this '• ~ . ih writing. Nor is there anything on record to show th.at the Magistrate (Bwahama SRJW) made any order in the Court record (Misc. Civil Cause No. 93/80) to the effoct that a temporary order should be issued. There was only this teraporary order duly stamped by the Court seal. The affidavit filed in support of the chamber application was taken out under S.11 A (1) (e) (i) of the Rent Restriction Act and s. 95 of the Civil Procedure Code. The Registrar of Buildings filed a counter affidavit to a oppose the applicati~n. The applicant Company's application was for the court to allocate the premisses described in the affidavit to the applicant. These were the same premises which the applicant company was occupying and in respect of which civil Case No. 78 of 1980 was filed. The affidavit of the ap:)licant company said inter alia that the applicant had applied to the Respondent (Registrar of Buildings) for office premises and was told by one of the respondent's officers that if the applicant found an unoccupied office the applicant may occupy it and apply for it. In paragraph 7 of the 2ffidavit it said that the applicant being conversant that the premises had been unoccupied (i.e. Plot lfo. 0002, 931 Block 156) for over two months, occupied it in May 1980 and instituted a case 113l:.ely R.M. civil Case No. 78/80 seeking an injunction to restrain the respondent from evicting the applicant ••••• from the premises. Eventually the chm1ber application was heard by Korosso P .;R.M. Korosso P.R.I'.'1 •. frarD.ed issues and _answered them. The 1st issue was whether the application was res .judicata. He held that it was not res judicata because in filiI Civil Gase No. 78/80 rlfahdia BJ\1 only dealt ••• ~ .• /4 ' with application for a ter,.ipore:cy injunction and left the substantive suit untouched. The second issue vvas whether tl1e applicant was a trespasser. It will be recalled that tr.tis issue was decided by Mandia RM is .RriICivil Case No. 78/80 and the applicant was held to be a trespasser. Mr. Korosso P ,R ..I:I. held that the applicant yvas not a trespasser because he had been given penaission by the Registrar of Buildings to occupy the suit premises as deposed in paragraph 6 of the applicant I s affidavit whj_ch paragraph was not denied by the Registrar of Buildings in his counter affidavit. The last issue was whether applicant was a suitable person to be allocated a house. This issue was answered in the affirmative •. Then the court proceeded "to grant the court's consent to the applicant company being the stntutory "'.;enant of the Registrar of Buildings in respect of the suit preoises,appartoent, plot No. 0002, 931 Block 156 Market StreetD Dar es Salamo 11 This order was followed by a typed formal order duly scaled by the court seal which was to be kept by the applicant as his shield age.inst further molestation. The order is given the heading uconsent Order 11 It has an introduction and then it reads further down thus:" ORDER . CONSENT IS herely given to the applicant Jujeny Import Export Co. Ltd. to be the Statutory Tena:c2t of the Registrar of Buildings in the suit premises which is Ll'Pc 0002 on Plot Ho. 931 Block 156 Market Street, Dar es Salaam.. Given under ray hand and seal of this Court this 11th day of October, 1980. Signed RESIDENT I:1/i.GISTR.:;TE DJ,R ES SJ\.LA/JW 11 It is sealed by the court se2.l. The present appeal by the Registrar of fuildings v.ias filed in August 1980 on the grounds that the learned Resident Magistrate Bwaharaa Esq. erred in r:1aking an ex-parte order against i~ D 2 appellant on 25th July, 1980 restraining the appellantLjnterferiug with the occupation of the suit premises by the Respondent., '.!.'his is so because Mandia R.w. had dismissed an earlier similar application on 28/6/80 and there was no appeal fro11 it and because Mandia and Bwnhama RMs have equal jurisdiction and Bw,iliama R.M. had no right to sit in ::,,ppeal on the decision of l\Tandia R.M. The second reason for the error was given as that .Bwahama fili1 virtually stayed the execution of the order of l'fandia RM which power vested only into the High Court under 0~der 39 Rule 3 of c.P.c. The third reason was that 'Bwal:n.ame. sm,1 1 s order violates the principles of natural justice and the rules laid down by Civil Procedure Code and that Bwahama m~ was barned by s.9 of CPC from entertaining the respondent's application. Finally the appellant prays:- (1) That the order dated 25th July, 1980 be set aside; (2) -That the proceedincs in Dar es Salaam R.IVI. Civil Case No •. 93 of 1980 be declared uull and void and of no effect; (3) any other order that m.:!y be just, proper and equitable. This appeal came beforE! rae for a:rr:;ument. Hr. Kesaria re- presented the Registrar of Buildings hereinafter referred to as the appellant whereas I.fr. Shinganya was for the Jujeny Import- Export Co. hereinafter referred to only as the respondent. Mr. Shinganya asked for an adjournnent w',ich I refused to grant and ~Jlr. Kesaria proceeded to argue the appeal. Mr. Shinganya refused to reply because his application for adjourment had not been granted. Nothing daunted I reserved the appeal for judgment. In his address I,lr. Kesa.i•ia slZJL:1, riEed the facts and continued to argue that Na.ndia EH' s disulissal -;.;. the application of Jujeny Import and Export Co. resulted in two things: (1) the Magistrate refused his application to declare Jujeny Co, as a tenant of the suit premises:; and (2) The rJ:J.giGtrate refused to LJ.ake an order of injunction to restrain the Registrar of Buildings. The Resident Magistrate declared instead the Jujeny Co. to be a trespasser who had coJJI:J.itted a crime. Only lawful tenants and not law brear.ers could be protected· by the Pient Restriction Act. Mr. Kesaria went on to challenge the affidavit in RJ'd Civil Case No. 93/80 saying that paragraph 5 of the affidavit was false because the offices were still in use. Also he wondered how anyone was supposed to believe the contents of Paragraph 6 of the respondent's affidavit in m~. cc. 93/80 Tulr. Kesaria argued that if what was in paragraph 6 of the affidavit were true, the respondents would not have filed a suit against the appellant. He also wondered· what was being v;i thdrawn in RN! civil case No. 78/80 when I~Iandia R.M, had dis11issed the case. Mr. Kesaria also woundered how the respondent in :para 8 of his affidavit in mvI Civil Case No. 93/80 would ask the court to declare him a tenant of the premises .... . /6 - 6 when actually the very cout'.t had earlier dismissed his prayer to be declared a tenant in Civil Case No. 78/80. Mr. Kesaria also pointed out that Bwahama SRM could not have done what he did if he had understood what civil case No. 78/80 had done. Instead he issued an injunction and Jid not even bother to comply with Order 37 of the C.P.C. with regard to serving the appellant before hearing the application. Mr. Kesaria urged the court to set aside the order of Bwahama RM. He cited authorities for the proposition that before the order was m2de against the appellant he should have been served. Coming back to civil case No. 78/80, Mr. Kesaria said that no appeal was preferred by the respondent instead the respondent filed civil case No. 93/80 in which he agitates the same things as those in Civil Case 78/80. Mr. Kesaria submitted that the matter was resjudicata since the matter in issue in cc 78/80 was the same in c.c. 93/80. Bwaha.L,a R.H., Mr. Kesaria said, should have declared that the matter was res judicata., He therefore prayed that the order made by Bwaharaa m11 be set aside as incompetent and a nullity and that R.M. cc. 93/80 be declared as null and void and of no effect. I will now endeavour to deal with this appeal as briefly as possible since there is no longer any need to recapitulate the facts. The issues I see in this appeal which require my decision hinge on one issue namely whether this L1atter is re judicata in accordance with s.9 of the Civil Procedure Code and that R.M. J\rJ.iscellarieous Civil Cause No. 93 of 1980 should not have been entertained after R.M. civil case No. 78 of 1980e I will set out section 9 of the C.P.C. It reads:- "No court shall try any suit or issue in which the L1atter directly and substantially in issue has been directly and substantially in {ssue in a former suit between the same parties or between parties under ·whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court." Now, what were the issues in R.M. Civil, Case No. 78 of 1980 which were heard and finally decided by Mandia R.M.? To my mind, they were two,namely, whether the respondent should be granted a temporary injunction and whether the respondent should be declared the tenant of the suit premises. It will be observed that although this was only a chamber application for a temporcry injunction, in dealing with this applicaliion the court had to decide on these two issues • • • • •/7 - 'i - This is so because the tenporary injunction application could not be handled properly without deciding the status of the parties, their rights and duties and privileges. In dealing with this application lVIandia R,.M. first set aside the ex parte injunction which had been issued by :Bwahar,1a R.JJ. He did so correctly in view of the authority to doso given in the cases of Mutira Vs. Das (1971) EA 227 and Alwi !Cha!nis Vs Salim IQ12nis & anor (1956) 23 EACA 195. Then Mandia R.M. decided that he could not grant a temporary injunction to the respondent cor.ipo.ny because it was a trespasser, a law breaker and therefore guilty of criminal acts. This meant that he could . not possible declare the respondent company a lawful tenant of the sutt premises because it was a trespasser guilty of cr:i.ninal trespass and malicious dwnage to property and that the court would be condoning such illegality if it granted the application. One wonders what was left of the respondent company's plaint which required to be heard and finally decided. Assuming that the respondent had eventu2lly Lianaged to have the case heard, what wus , there to be decided? The only answer here is that there was nothing else to e decided.. And that is why the Respondent sought leave ·to withdraw the suit and subsequently filed another suit. The suit filed was seeking the same reliefs naiilely an injunction and to be allocated the premises. Since the respondent was already in occupation of the suit premises allocation actually amounted to being declared a statutory tenant. Indeed the court in its ruling on the matter did not say it was allocating the resporn~.ent the suit prenises but it said that it was granting consent to the respondent being the statutory tenant. In other words it was declaring the respondent to be the statutory tenant. it will be remembered that this is the same respondent who was declared to be a trespasser and a crioinal and who was refused a temporary injunction by I,iandia R.M. in Civil Case No. 78/80. It should also be remembered that before such consent was granted the respondent had obtained another ex parte injunction from Bwahama. R.M. It follows therefore thnt the natters directly and substantially in issue in R,.Iir. Civil Case No. 78/80 and RM, Misc. Civil Cause No. 93/80 were the sS1:1e and that all these raatters had been heard and finally decided by lVfandia R.M. in Civil Case J.ITo. 78/80. These raatters were therefore res judicata and neither Bwaharaa SRM nor Korosso PHM had jurisdiction to entertain RM Misc. Civil Cause No. 93 of 1980 or to issue any orders in such case • ••••• /8 Even the withdrawal of the respondent of such Civil Case No. 78 of 1980 barred him from instituting a fresh suit in respect of the seme subjec\_g1atter •. Order XXIII Rule 1(2) reads: 1(2) 11 where the court is satisfied- (a) that a suit 1,1.ust fail by reason of some formal defect, or (b) ~hat 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 1 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 w:i_th liberty ~ s ~ i tute a_fre.sh ~ in respect of the subject matter of such suit or such part of a claim11 • The rule goes on to say that short of such permission the plaintiff "shall be precluded from irtstituting any fresh suit in respect of the subject matter or such part of the claim. 11 In this case 1 the suit was withdra,½1 on 25/7/80. It would appear that although the record shows that it is 25/8/80 but reading through the Lagistro.te I s ruling it seems that the month nan v,as lapsus calami and t}1at he r:1eant to write 0 7 11 • Thei-'efore on 25/7/80 the respondent withdraw the suit no 78/80 by then he had already with him an affidavit which enabled him to file Misellaneous Civil Cause !fo. 93/80. Also on this same day he f'iled this c.c. 93/80 and managed further to get a temporary order of injunction against the appellant. · The record on withdrawal date simply reads that the respondent was applying to withdraw the suit. His application was granted and the suit was vvi thdrawn with leave of the court. But, whatever arguments made the court be satisfied as required by Order 23 Rule 1(2) which arguments were not record~d 1 the court did not allow the withdrawal with liberty to institute a fresh suit in respect of the same subject matter. In the first place it is difficult to say nor can it be convincingly argued that the court was satisfied that there were grounds for allowing the plaintiff to withdraw the suit because no grounds were presented nor does the court say that it is satisfied. Of course the respondent may ,vithdraw the suit under Rule (1) of Order 23 of the c.P.c. I am of the view that the co~rt was never satisfied that sufficient grounds existed to allow the resp.ondent to withdraw the suit and then allow him to file ::mother one on the same subject~ Rather what the court was doing vras just blessing the withdrawal of the suit u/ R 1(1) of Order 23. In any case the co~rt never said. that permission to vvi thdraw the suit with liberty to institute - 9 - It follov;;s that by virt1. e of rtuJ.G 1 (3) of Orc'.er 23 the plaintiff 0 wc.s preclude:.1 frou instituting an:,r f'1'esl1 suit n,:, '.d.y c.c. Ho. 93/80 vrhich was in respcict of' th2 scr:'!e subject ,10.tcer. This i.-len.ns tho.t wh.::t follows 2,.fter such insti tutj_on of' the c .c. 93/80 vm.s null ,_;ent nestriction lict 1.:nJe:c ·,rh:Lct:1 R.LT. I.Iiscellcmeous civil Cmwe JJo. 93/30 wc1s insti tutec-: e;::pcme,:s tL.e court to o.llocr,te to cm;y suitable •tenrmt, n.t such rent 2,r; t>.2 co1.,:;,·i:; ,:[\)' fix, c,..11y house or portion ti1eTeof which without 500(1 c;:,,use : 2:::; be,)n left unoccupied for a 1 period exceecUnt one ::1onth •••• •. ;; 'l'L.is is not the section which eD11owers the Court to ~:_ecL,:c'e so::'.oone "' ln,,riul or stc,tutory ten.'":nt. c2se to c'.ecln:ce the rcc.1ponu3JH , ~;t::1.tutor~, terncnt becf:luse even if 0. the respondent hc:.d ajJplicc~ un:'.e;:• t>,c, correct section nm.,ely s.3 A of the Hent Eestriction Let, tl1e con.:i tions envi::iae;ec1 by s. 3A before one cein be c'ec1n:,•ec1 :.1.s .such cffe non existent here. Section 3 Ji gene:,:ally re:i:'ers to occu1x-,tion o:2' pr<mises '.'Ii tll option to purcho.se tlie pre=iises. This i,s no·c the c:.:::se here. :2ven on the b:::,.sis of the:: above, the on:e:c oi' tk J.e,,:,:·ned J:':cinc,ipo.l Resident I ;'\it not fin,~ it necesrn1.,7 to :c·efc)l' to the 2.uthori ties ci tec1 by Hr. Keso.rio.. bec:::w.::e t,,e L::.w is r~o clec:.:c hei·e in respect of the issues which we ha.c"l ·i:;o ,~ezi.l with. All in all I allov.r tl.2e D,P[jenJ. ,rLth costs. I set asic1e the order of Dws.lx:U:m I?.E. c1atec1 25tl:c July, 1980 ctn::l ,:tecln:ce th2.t the proceechnc:s in Ibr cs So.lc:.m:.J. r;ivil Cnse Ho. 93 of 1980 to be null 2.nC void an::"' of no effect. I :~luo a.n1er thci the respondents be 26/3/82 6/4/82 ]Jahati - J, For Eesponc~ent- nbsent Order: Ju(gnent c2elivere:.: in Cou:ct on 6/4/82