swaleh traders co ltd vs registered trustees of temeke evangelical assembly of god 2015 tzhc 2225 17 august 2015

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT PAR ES SALAAM (ORIGINAL JU R IS P IC IT O m LAND CASE NO. 73 OF 2013 >§^ALEH TRADERS CO.LTD ...... PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF TEM EKE EVANGELICAL ASSEM BLY OF GOD ..................... DEFENDANT Date of last Order: 8th July, 2015 Date of Ruling: 17th August, 2015 RULING Feleshi, J.: This is the seventh attempt by Plaintiff to - get an order of the Court declaring him owner of Plot No. 141 Block"D" Tem eke Dar es Salaam. From 4/10/1999 to 17/7/2013 when the Plaintiff last instituted the above suit his unsuccessful previous matters include: 1. Dar es Salaam Kisutu RM's Court Civil Case No.260/1999- Swale Traders Co.Ltd v. The Registered Trustees of Temeke Evangelistic Assemblies of God (instituted on 2/8/1999); 2. HC Civ.Case No. 384/1999-Swale Traders Co.Ltd v. The Registered Trustees of Temeke Evangelistic Assemblies of God (instituted on 14/10/1999); 3. Temeke District Court Civ.Case No. 43/2004-Swale Traders Co.Ltd v. Rev.Kalist Masalu, Alexander Simbila and Evangelistic Assemblies of God (instituted on 28/7/2004); 4. HC Land Case No. 155/2005-Swale Traders Co.Ltd v. Rev.Kalist Masalu and Evangelistic Assemblies of God (instituted on 3/8/2005); 5. HC Land Case No. 51/2006-Swale Traders Co.Ltd v. The Registered Trustees of Temeke Evangelistic Assemblies of God and Rev.Kalist Masalu (instituted on 16/3/2006); Page 1 of 6 6. HC Miscellaneous Land Application No.89/2008-Swale Traders Co.Ltd v. The Registered Trustees of Temeke Evangelistic Assemblies of God (instituted on 26/11/2008); On 4/10/1999, the Plaintiff prayed under Order 23 Rule 1 of the Civil Procedure Code, [Cap.33 R.E.2002] to withdrawn his CC No.260/1999 and the same was withdrawn under Order 23 Rule 3 of the Code. In the present suit the Defendant initially raised three points of preliminary objection but only sustained two points at the hearing. They are: one, the plaintiff is precluded/barred by Order XXIII Rule.3 of the CPC, from instituting the suit and which further abuses the Court process; and two, that the suit is time barred. Paragraph 3 of the Plaint pleads as follows: "The plaintiff claims, against the defendant are as follows. First, for declaration that the landed property on Plot No. 140 Block "D " Service Trade and all developm ent thereon made ("the suit property") is the lawful property of the Plaintiff, secondly but in the alternative to the first claim, for declaration that the plaintiff is the lawful owner of the remaining portion of the suit property described in paragraphs 5 and 6 therein, thirdly for the sum of USD 140 being mesne profit from the date of the accrual of the cause of action to the date of the filing of the above suit and fourthly, for the sum of USD 20,000 per year from the date of filing of the suit to the date of pronouncem ent of the judgm ent and from the date of pronouncem ent of judgm ent to the date of vacant possession of the suit property as mesne profit." Page 2 of 6 The Plaintiff maintained in all previous proceedings his claim over Plot No. 140 Block "D " and he alleged the plot was either invaded or trespassed by the above defendant or other defendants appearing in those proceedings. The court record is very clear about that. In all incidences, those cases were either struck out or dismissed for various reasons including: one, the Plaintiff's preclusion pursuant to Order XXIII Rule.3 of the CPC made on 4/10/1999 in relation to Civil Case No.260/1999; two, the Plaintiff to have sued wrong party or by reason of misjoinder of parties; and three, application having being filed without the principal suit. This Court (Hon.Bubeshi,J.-as she then was) held in respect of HC Civ.Case No. 384/1999-Swale Traders Co.Ltd v. The Registered Trustees of Tem eke Evangelistic Assem blies of God that: "..-.since the RM'S court at Kisutu had jurisdiction to hear the matter, the plaintiff needed permission to withdraw the Case under Order 23 Rule 1(2) and because he did not seek permission, he is precluded from instituting a fresh suit in respect of the same subject matter in terms of Order 23 Rule 1(3)." The Court (Hon.Chinguwile,J.-as she then was) had further held in relation to HC Land Case No.51/2006 and HC Land Case No. 155/2005 that: "we have marked the end of this case and if the Plaintiff was aggrieved with that decision it would have appealed against it. The plaintiff had no forum again...the filing of Land Case N o.155 of 2005 and the present case was therefore an abuse of the process of the court." Page 3 of 6 And My Brother Mziray,J.-as he then was) after revisiting all the cases the Applicant/Plaintiff had so far instituted since 1999 underscored the following in HC Miscellaneous Land Application No.89 of 2008: "In some of these cases, it was clearly stated that the Applicant was abusing the court process. Indeed he is abusing the Court process because in the present application i.e HC Miscellaneous Land Application No.89 of 2008 he has come with a prayer seeking permission to re-institute a suit against the Respondent in respect of the same subject matter. His prayer cannot be entertained. If the Applicant was aggrieved by the decision made in the aforementioned cases, the avenue open for him was to appeal against the said decision and not to try to come through the back door to ask for the doors to open for him to file another suit of similar nature against the respondent. There should be an end to litigations of similar nature." In support of his points of objections the Defendant through Mr.Mafuru Advocate has maintained the common arguments that since the position and the order of the subordinate court in Civil Case No.260/1999 have not changed the Plaintiff is precluded’ from instituting any fresh suit in respect of such subject matter or such part of the claim. That the suit property in question is solitary and one property and if no division is made pursuant to provisions of section 83 of the Land Registration Act, [Cap.334 R.E. 2002] and sub-titles made no portion can be claimed in the way it has been made or claimed by the Plaintiff and leaving the other portion of land remaining not claimed as alternatively prayed for in the plaint. The counsel further submitted that as the same property is claimed to have been invaded/trespassed from 1995 then the suit is time barred in terms of Part I item 22 of the Law of Limitation Act, [Cap.89 R.E.2002]. Therefore the suit must be dismissed in terms of section 3(1) of the Act as was held in the case of Stephen Masatu W asira v. Joseph Sinde W arioba [1999] TLR 334 Page 4 of 6 * that once the suit is found to be time barred the remedy is not to strike it out but to dismiss it. The Plaintiff through Mr.Issa Maige Advocate of MJ Diamond, Advocates extensively submitted that the present suit must be differentiated from the previous suits as it is premised on a different ca u se'o f actions and against the subject matter whose status quo during invasions/trespass in 1995 and 2004 and 2006 do favour the defendant's preliminary objection on both points based on Order 23 Rule 1(3) of the CPC and Part I item 22 of the Law of Limitation Act (supra). It is a common ground that all seven law suits and application have revolved over the same plot which in Annexture MJ-1 of the Plaint reads in the name of the Plaintiff. In all proceedings I have gone through the said plot is described as one property and the acts of invasion/ trespass and developm ents made thereon have been made on a plot which have not been apportioned to part of sub-titles under one title deed. Section 83 of the Land Registration Act (supra). The provisions read: "The Registrar may, on the application in the prescribed form made with the consent of the Commissioner for Lands, of the owner of Government leases or of a right of occupancy over any parcel, divide such parcel into two or more parcels by cancelling the folio or folios of the land register relating thereto and preparing new folios in respect of the new parcels/' Therefore, since the Plaint in the present law suit is based on the very subject matter that was dealt with under in Civil Case No.260/1999 which involved the same parties and the Plaintiff has not pleaded distinctive particulars sufficient to offer the court and the defendant a base upon they can Page 5 of 6 act and treat the present suit differently in relation to Plot No. 141 Bolock "D " Tem eke, I am unable to agree with the Plaintiff. Under the circumstances, I subscribe to the defendant's submission and hereby sustain both points of preliminary objection. I strike out the suit for violating Order 23 Rule 1(3) of the CPC and I dismiss it for being time barred with costs. Unless appellate measures are taken to the appropriate Court, I invoke section 95 of the CPC to order the Plaintiff to stop from abusing the court processes by instituting cases' against the spirit and object Order 2 Rule 1 of the CPC. Ruled accordingly. DATED at Dar es Salaam this 17th August, 2015 E.M. Feleshi JUDGE Ruling delivered on this 17th day of August, 2015 in the presence of Ms. A.Barnabas, Advocate for the Plaintiff and in the absence of the Defendant. E.M. Feleshi JUDGE 17. 8.2015 Page 6 of 6