sweetberth mathias kutaga duly constituted attorney of aliraza kasamali rajani vs euginia rutatora and 5 others 2021 tzhclandd 6776 24 february 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 72 OF 2020 SWEETBERT MATHIAS KUTAGA(As duly constituted Attorney of Aliraza Kasamali Rajani) PLAINTIFF VERSUS EUGINIA RUTATORA DEFENDANT WILSON MUJWAHUZI RUTATORA 2^° DEFENDANT RAV3I CONSTRUCTION LIMITED 3^° DEFENDANT SAMSON J. MWAIPAJA JOSHUA E. MWAITUKAt/a FOSTERS 4™ DEFENDANT AUCTIONEERS & GENERAL TRADERS 5™ DEFENDANT RULING OPIYO. J. The counsels were asked to address court on the attainability of this suit in terms of application of section 38 of the civil procedure code, Cap. 33 RE 2019 and locus of the plaintiff. Mr. Elisa Abel Msuya opened the flow by submitting that the present suit was filed after objection proceedings, Misc. Land Application No. 833/2016 before Maige, J. which was dismissed in the ruling delivered on 6^!^ April, 2020. The parties in that application were Murtaza Allihusein as duly constituted Attorney of Ally Raza Kasimali Rajani V. Eugenia Rutatora and others. The three (1^ - 3"^^) Respondents in the Misc. Land Application No. 833/2016. The plaintiff, Mathias Kutaga is now a duly constituted of Ally Raza. That make him the same in both suits. He continued to submit that, the subject matter in Misc. Land Application No. 833/2016 concerned a dispute over the same landed property. The applicant contends ownership on one side and the two Rutatoraz (1^ and second defendants) allege ownership on the other side. Both, Ally Raza and the two defendants have judgments in their favour issued by this court. That is the reason the plaintiff invited the court to investigate the ownership status between the two. That,the decision in Application No. 833/2016 ordered the aggrieved party to file a case in terms of order 21 rule 62 of the Civil Procedure Code which provides that, when a party loses in objection proceedings, the right available is to file a suit in order to establish a claim. He referred this court to the Civil Application No. 71/2002 Ibrahim Mohamed Kabeke V. Akiba commercial Bank Ltd and Another Ramadhani, JA to further support his contention. He continued to submit that; the present suit was filed because the law allows one aggrieved in objection proceedings to file a suit. That, in Land case No. 72/2002, the plaintiff, has invited this court to declare him lawful owner of disputed property in question and is requesting the court for orders of vacant possession. He assets that he is a lawful owner holding certificate of Title and Decree of this court resulting from deed of settlement in Land Case No. 95/2014, between Plaintiff and Govund Varsani Ravji and Ravji Construction Ltd in which the court recognized that the plaintiff was the owner of the property pleaded in the plaint. It was decreed in that case that the plaintiff should hand over title to the Ravji Construction Ltd and execute transfer of property and the 3^^ defendant should pay, the remaining price to the plaintiff. At the same time in land case No. 141 of 2012 the court decreed that a certain piece of Land measuring 2 and Vi acres belongs to Eugenia Rutatora and Wilson Mujwahuzi Rutatora. According to pleadings the Rutatora's has executed their decree. That,the execution has affected the property subject of this suit and Land Case No. 95/2014. He continued to argue that, from those facts, there are two parties, the plaintiff and the first and second defendants who are alleging ownership over the same property. The issue of ownership between plaintiff and Rutatoras cannot be solved under section 38 of the Civil Procedure Code, as there has never been any matter between them, he submits. It is therefore his prayer that, the issue be resolved in this fresh suit they have filed specifically for that. He contended that, under Section 38(1)of the Civil Procedure Code,the law allows executing court to deal with all questions arising between parties in a suit which a decree was passed in relation to execution. But he sees it that, the situation in this case is different, because plaintiff is not a party in Land Case No. 141 of 2012. And the Rutatoras are not parties to Land Case No. 95/2014. Thus, there is nothing they can do apart from filing objection proceedings and a suit after they failed in the objection proceedings. He continued to argue that execution of decree in Land Case No. 95/2014 is problematic, because if they decide to execute it, they will handover title to 3'^^ defendant and effect ownership rights on the property that has already been decreed to be that of Rutatoras. So, practically and legally execution in that is impossible unless this court now hears this suit and comes to the decision that declares ownership right of plaintiff on one side and the two defendants on the other. He contends that, execution in Land Case No. 95/2014 has been rendered practically and legally impossible by decision of this court on Land Case No. 141/2012. The only remedy is to have this suit heard on merits as provision of section 38 cannot came into play in the existing circumstances. Obed Kasambala, counsel for 1^ and 2"^^ defendant on the other hand submitted that, the submission by Msuya is irrelevant to the matter at hand. He contended that, the genesis of plaintiff's case is to be backed with Land Case No. 95/2014 in which he sued 3^^ defendant. They signed deed of settlement in that suit. Plaintiff agreed to be paid USD 200,000/- for the settlement. As a result of that settlement, the court marked the suit as finally determinate. Therefore, what was awaited is the execution of a decree of 24*^ February 2017 and not filing a new suit over the same property against new parties. He continued to submit that at the time of delivering of that decree the court was alerted that there was a case No. 141/2012 for which plaintiff was not a party. The decision of the suit No. 141/2012 declared that 1^ and 2"^^ defendant are lawful owners of disputed property. Plaintiff filed application No. 833/2016 as an objector to object decision in Land Case No. 141/2012. The same was dismissed because he had nothing to claim, since the court had already marked Land Case No. 95/2014 as completed, what remained was execution, not filing objection proceedings as they did. The conflict in Land Case No. 95/2014 totally does not involve 1^ and 2"^ defendants. Therefore, the plaintiff ought to deal with 3'"'^ defendant in execution of decree in land case No. 95 of 2014, not to pursue a right in this way. He referred the Land case No. 39/2019 Amanzi Omar Chumba V. Abdallah Hemed Mnyunge and another at Page 8. In the cited case, the plaintiff filed a case based on case No. 3/2012 for whose execution was complete. The plaintiff was ordered to file execution not a fresh suit. That was the reason for dismissal for plaintiff's suit. His further contention is that, once this court hears and determines the present case, it will be sitting as appellate and or court for which it does not have jurisdiction. Therefore, since plaintiffs is aggrieved by decree in Land Case No. 95/2014, he ought to pursue execution not filing a fresh suit. He went on to refer this court to Land Application no. 995 of 2017 between Exim Bank V. National Furnishers Ltd, Mzuma J. DSM Land Division, to cement his argument. He argued that, although the counsel filed objection proceedings, filing this suit was wrong as his claim was based on case he had already gone to the same court for execution. Thus, since plaintiff has already got same amount of money from default execution, if his claim is on balance, he ought to go to the same court in order to challenge a decree. He continued to submit that, the argument that there are two decision of this court conferring right over different people, i.e. Land Case No. 141 of 2012 and 95/2014 is misconceived, because by the court declaring in Land case No. 141 that 1^ and 2"^" defendants herein were lawful owners means, the ownership of Ravji construction Ltd. was illegally obtained. That means, all prior transactions were made illegal. Hence,the plaintiff in this Land Case No. 72/2020 was to file the claim against Ravji Construction Ltd for Fraudulent misrepresentation that the land belonged to them while not. Therefore, matter at hand is not attainable, he contends. In rejoinder, Mr. Msuya submitted that, the two cases referred to by the defendants counsel to the effect that, the proper cause is to resort to the provisions of section 38 in execution are distinguishable and not relevant for our case because in both there was advise for matter to be referred to under Section 38. That, the cases referred were rightly decided in that the issues therein falls within the ambit of Section 38, but not applicable in the circumstances of this case. That, as their claim of ownership of CT No. 44512 in plot 105 pleaded under paragraph 6 and 7 of their plaint is contested by the 1^ and defendants as per para 2 of their defence and 3^^ defendant defence under paragraphs 7 and 8, makes the issue contentious that cannot be decided in execution proceedings. It requires court to hear and make a decision as to who is the lawful owner of the pleaded property. He argued that, it is impossible to invoke Section 38 relating to execution in this case involving those who were not parties in the settlement. On the issue that the plaintiff should have filed a case of fraud against the 3'^'^ and second defendants in land case No. 95, he argued that, that is what is pleaded under para 14 of the plaint, making this suit attainable. And on the preposition that, the plaintiff should have preferred revision in the Court of Appeal or an appeal against the decision in Land Case No. 141/2012, he submitted the two options are impossible because plaintiff was not a party there so he cannot appeal. Also, it was not possible to prove fraud on revision. He referred to the case of Mohamed enterprises(T) Ltd V. Masoud 6 Mohamed Nassor, Civil App No. 33/2012 at pages 18 and 19 for the contention above. Thus, given the mode of execution of revision by court of appeal, it is not sufficient to prove allegation of fraud, he submits. The parties' counsels submissions have dully been considered. It is a common understanding that, when one loses in objection proceedings, he has an option of filing a suit under order XXI rule 62 of the CPC as rightly argued by Mr. Msuya. However, in my considered view, exercising this right is not an automatic anointing oil to the suit to be filed upon failure of objection proceeding to take off. The attainability of such a suit also still depends on other factors. It is on record that, there was a land case no 95/2014 in which the plaintiff sued the third defendant over performance of sale agreement between them involving the disputed property in this suit. In the course of proceedings, the parties entered settlement in which they agreed on the mode of completion of payment for the property by the 3^^ defendant. The case was marked settled and the deed was adopted as court decree. That means the plaintiff in this matter, relinquished their interest over the property for the instalment that was to be paid. What remains is a claim for the balance on the purchase price, if any, in the execution of the decree in that particular suit. In the instant suit the same plaintiff, who had already sold the property to the 3^^" defendant is claiming for a declaration that, he is a lawful owner and he be given vacant possession of the same suit property he had sold and even has a court decree for payment of a balance for. In my view, the plaintiff lacks the necessary locus to pursue this suit for lack of protected interest over the subject matter. The only option for him is to reap the benefit of section 38 of the CPC to demand for completion of payment, if he has not been paid through execution of the decree in settlement, not filing a fresh suit against a third party over the same property he no longer has interest. The argument by Mr. Msuya that, the problems he noted in relation to the circumstances surrounding the whole issue can be solved buy this court is in my considered view a misconception. It is recorded from Mr. Msuya's submission that, the execution of decree in land case No. 141 of 2012 affected disputed property in land case no 95/2014, as a result, there are two decision of this court conferring right over the same landed property on different people. Mr. Msuya argued that, from those facts, there are two parties, the plaintiff and the first and second defendants who are alleging ownership over the same property. Therefore, the issue of ownership between plaintiff and the first and second defendants cannot be solved under section 38 of the Civil Procedure Code, but in a fresh suit. This is misconception because it is contrary to the gist of concern raised by the court. The gist of this court's concern was for plaintiff to pursue his claim in execution on decree in land case no 95/2014 as the only right he can exercise as a person who no longer has any protected interest over the property. Therefore, he lacks locus standi to claim over property which is no longer his. For the above reasons, this suit is struck out with no order as to costs as the issue disposing the suit was raised by the court suo motu. M.P. OPIYO, JUDGE \\ ,V \ <■ Wi /-■==-.-V 24/2/2021 A'' t-