LAND CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 5794 OF 2021 SAID MOHAMEDI SAIDI..............................................................PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF ALMADRSAT MANAARA......... DEFENDANT RULING 30/7/2024 & 03/09/2024 GWAE, J This ruling emanates from the preliminary objection canvassed by the defendant based on the following points of law;- 1. That, the suit is res-judicata as there is another pending case between same subject matter in Civil Case No. 83 of 1988 in the District Court of Ilala 2. This suit is time barred 3. The suit an abuse of Court Process for failure to comply with the order of the Court dated 20th June 2022 in Land Case No. 170 of 2004 4. That, the suit is incompetent as the defendant is corporate entity capable of being sued i Before this Court, the plaintiff, Saidi Mohamedi Saidi appeared in person whereas Mr. Halfan Daimu represented the defendant, Registered Trustees of Almadrasat Manaara. Hearing of the defendant's PO proceeded by way of written submission. However, the defendant's counsel abandoned the 2nd point of objection. Arguing the 1st limb of objection, Mr. Daimu was of the view that the plaintiff's suit is res-subjudice as there is another suit pending in Ilala District Court at Ilala now at Kinyerezi vide Civil Case No. 83 of 1988, the parties being, the plaintiff and Muhusini Amiri (deceased) and Muharami Juma. The judgment and decree of the Ilala District Court aggrieved the said Muhsi Amiri and Muharani Juma. They appealed to this court through Civil Appeal No. 30 of 1994. This Court (Mrema, J) rendered its decision on the 8th November 1994 nullifying the proceeding of the District Court of Ilala and ordered trial denovo. Mr. Daimu went on arguing that despite the clear orders of the Court (Mrema, J) in its appellate jurisdiction, the plaintiff instituted a new case registered as Land Case No. 170 of 2004, which was ultimately struck out by this Court (Gwae, J) on 20th June 2022. He embraced his argument by citing the case of Karori vs. Waitihache Merengo (Civil Appeal No. 2 164 of 2018 [2022] TZCA 83 (1 March 2022) and section 8 of the Civil Procedure Code, Cap 33, R.E, 2019. It is also the response of the plaintiff that, the case is not subjudice since the parties in the former suit are not the same. He also argued that, Civil Case No. 83 of 1988 is no longer pending before the Ilala District Court as by virtue of section 54 of the Land Disputes Courts Act, Cap 216, Revised Edition, 2019 (LDCA) as two years had lapsed. Court's determination as to the 1st limb ofobjection. lamin agreement with the parties' arguments that, section 8 bars subsequent institution of a case in the same or different court or tribunal involving same parties or litigating under the same title, over same the subject matter while there is a still pendency of former case before such competent court or tribunal. Section 8 of CPC reads; "8. No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in Tanzania having jurisdiction to grant the relief claimed. 3 Explanation: The pendency of a suit in a foreign court does not preclude the courts in Tanzania from trying a suit founded on the same cause of action". The Court of Appeal in Karori vs. Waitihache Merengo (supra) while facing the similar situation stated; "The Doctrine ofres-sub judice prevents a court or Tribunal from proceeding with the trial of any suit in which the matter in issue is directly and substantially the same with the previously instituted suit between the same parties pending before same or another court with jurisdiction to determine it. In our case the parties and the subject matter are the same, despite the two cases having different numbers. In Ward Tribunal, it was Application No. 9 of2014 for retrial, white in the Tribunal; it was Land Case No. 93 of 2015, of the Tribunal in Land Case No. 93 of2015, a nullity. The High Court decision in Land Appeal No. 70 of 2016, an appeal germinating from an illegal decision of the Tribunal, suffers the like blow as well." In the instant dispute, it is the facts of the case pleaded by the plaintiff, Saidi Mohamedi Saidi who instituted the suit in this Court against the defendant herein, which led to the raising of the defendant's PO. Among the plaintiff's prayers is declaration that, he is the lawful owner of the suit 4 land described as Plot No. 283 Block"J"Temeke Municipality with Certificate of Title No. 49862 alleging to have been granted in 1985. Another alarming pleaded fact is an averment that, the plaintiff in 1988 instituted the dispute in the Kisutu Resident Magistrate's Court through Civil Case No. 83 of 1988 followed by Land Case No. 170 of 2004. Considering the parties' saga, which is based on the dispute over a parcel of land located on Plot No. 207B Block"J"Temeke Municipality. Hence, the contentious issue between the parties, which is directly and substantially in issue in previous suit before District Court of Ilala and the one at hand. Therefore, I am not convinced that, the parties in this suit are different since the defendant, though it is said not registered but an entity in the name of Almadrasat Manaara, which can be litigating under same title or as a privy to the former suit. More so, the ones who were sued in the former suit were representing Almadrasat Manaara as depicted in the judgment of the Court of Appeal via Civil Appeal No. 110 of 2020. Similarly, this court is functus officio to either reverse or vacate its own order (Mrema, J) issued on 8th November 1994 vide Civil Appeal No. 30 of 1994 where the retrial of the plaintiff's Civil Case No. 83 of 1988 before District Court of Ilala now at Kinyerezi was directed. The same position was 5 restated by the Court (Gwae, J) through Land Case No. 170 of 2004 on the 20th day of June 2022. Since there orders of retrial of the case, the plaintiff ought to have complied with such orders. I am fortified by the decision of the Court of Appeal in Karori vs. Waitihache Merengo (supra) when dealing with similar situation where an order of re-trial by the Ward Tribunal, which has been stripped by new amendment, it was stated;- "UnHke in the case before us, there is a pending order for a retrial, We think and firmly believe that the sanctity of court or Tribunal orders demands that those orders must be complied with. In the instant situation, it could simply be going to the Ward Tribunal for mediation, which would still be compliance. Once that has failed, then with the certificate issued by the Ward Tribunal, parties can still file their case in the Tribunal, ceased with jurisdiction (Emphasis supplied). The roots taken by the plaintiff, in my considered view, are absurd and amounting to wastage of precious time of the Court and litigants too. Even if all proceedings or appeals would have been barred under section 54 (3) of the LDCA, which is not the position, as the time has been extended to extent that, till cases or appeals filed before commencements of LDCA are 6 concluded, yet this court cannot alter the decision, which it made in 1994. The 1st limb of objection is thus sustainable. As to the 3rd point of objection that, the plaintiff's suit is an abuse of the Court process. In support of the objection, Mr. Daimu argued that the plaintiff was to comply with the orders of the court through Land Case No. 170 of 2004. On the other hand, it was the submission of the plaintiff that his act of instituting this suit does not amount to abuse of process of the court since parties are different from the former suit and that, this point is not pure point of law. Having examined the parties'competing submissions, I am of the firm view find that, the plaintiff is bound by the court orders aforestated unless he appeals against such orders (Orders made vide Land Appeal 30 of 1994 and through Land Case No. 170 of 2004. The plaintiff's acts of subsequently instituting various land cases instead of pursuing his matter before Ilala District Court now at Kinyerezi amounts to abuse of court process. This point of objection is also sustained. In the 4h point of law that, the suit is incompetent for suing non­ existing party. From outset, I sustain this point of objection raised by the 7 defendant since the plaintiff himself, when asked to address the court on whether the defendant exists, expressly stated that, the Almadrasat Manaara has no trustees registered by Registrar of Societies. More so, such position was alluded by one Jumbe Omari, a representative of Almadrasat Manaara, who also represented the late Muhsini Amiri as an administrator of his estate plainly stated that, as of now there are no registered trustees for the Almadrasat Manaara. Having demonstrated as herein, I sustain the 1st, 3rd and 4th points of objection as opposed to the 2nd point of objection on limitation of time. I therefore dismiss the plaintiff's suit since this court lacks jurisdiction after it had made orders for re-trial of the matter pending before Ilala District Court at Kinyerezi. The plaintiff shall bear the costs of the suit It is so ordered. dated at DAR ES SALAAM this 3rd day of September 2024.