Land Case No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND CASE NO. 14326 OF 2024 TANZANIA LOCAL GOVERNMENT WORKERS UNION (TALGWU)................................................. PLAINTIFF VERSUS GYKASH ESTABLISHMENT (T) LIMITED...........................DEFENDANT RULING Date of last Order: 30/09/2024 Date of Ruling: 15/10/2024 LALTAIKA, J.r This ruling arises from a preliminary objection raised by the Defendant, GYKASH ESTABLISHMENT (T) LIMITED contending that the present suit is res sub judice in relation to Application No. 177 of 2024, which is currently pending before the District Land and Housing Tribunal for Temeke. When the application was called for hearing on 26/08/2024, the Plaintiff enjoyed the legal services Mr. Hussein Hitu, learned Advocate. The Defendant, on the other hand, appeared through Mr. Cleophas James, learned Advocate accompanied with Principle Officer of the Page 1 of 13 Defendant Mr. Shabani Omari Gweli. Parties prayed to dispose of the PO by way of written submissions. Accordingly, the following schedule was ordered: Defendant's written submission to be filed on or before 9/9/2024, Plaintiff's Reply 23/09/2024, Rejoinder if any 30/09/2024, Mention for necessary orders 30/09/2024 at 11:00 AM. I hereby register my commendation to counsel for spotless compliance with the court order. The next part of this Ruling is a summary of submissions by both parties. Mr. James, Counsel for the Defendant, argued in support of the preliminary objection raised in the Defendant's written statement of defense. He contended that the present suit is res sub judice with Application No. 177 of 2024, which is still pending before the District Land and Housing Tribunal for Temeke. He informed the Court that the Defendant had filed Application No. 177 of 2024 before the Tribunal, alleging that the Plaintiff had breached a lease agreement. This application was still pending and scheduled for hearing on 13th September 2024, before Hon. Kiiza, Chairperson. Furthermore, the Plaintiff had already filed their written statement of defense, as referenced in paragraph 16 of the Defendant's written statement of defense. Mr. James pointed out that the Plaintiff had not disputed the fact Page 2 of 13 that there was a pending suit before the Tribunal involving the same parties and the same subject matter. He went on to cite Section 8 of the Civil Procedure Code [Cap 33 R.E 2019], emphasizing that no court shall proceed with the trial of a suit in which the matter in issue is directly and substantially the same as that of a previously instituted suit, provided that the previous suit is pending before a court competent to grant the relief sought. He further referred to SARKAR’S "The Law of Civil Procedure Code," 9th Edition, 2000, page 68, which states that Section 8 applies only if the court hearing the previous suit has jurisdiction to grant the reliefs sought in the subsequent suit. According to him, the Temeke Tribunal had such jurisdiction. In elaborating on the essential conditions for the application of Section 8, Mr. James explained that the matters in issue in both suits must be substantially the same and that the earlier suit must still be pending before a competent court capable of granting the reliefs sought. He stressed that the doctrine of res sub judice aims to prevent the possibility of contradictory decisions from the same court on the same issue. Page 3 of 13 He laid out the conditions required for the applicability of the doctrine: there must be two suits, one previously instituted and one subsequently instituted; the issues in both suits must be directly and substantially the same; the parties involved in both suits must be the same; the courts where the suits are pending must be competent to grant reliefs; and the parties must be litigating under the same title. He then stated that the Defendant, in the case before the Tribunal, was claiming for breach of the lease agreement dated 1st December 2021 over the suit property located at Plot No. 63 and 65, Block T, along Taifa Road. This pending case involved the same parties, a fact which the Plaintiff did not dispute. He also pointed out that in the present suit, the Plaintiff was also claiming a breach of the same lease agreement, raising the question of why the Plaintiff did not file a counterclaim before the Tribunal and instead chose to initiate this suit. Mr. James reiterated that the doctrine of res sub judice under Section 8 of Cap 33 applies when a second suit is filed in a court of competent jurisdiction regarding the same subject matter, which is already directly and substantially in issue in a previously instituted suit. Page 4 of 13 He supported his argument by citing several cases, including Wilson Kiguha vs Petrolux Service Station Limited, Land Case No. 161 of 2021, where the court ruled that the suit was res sub judice due to a pending application before the Tribunal. He also referred to Kakori Chogoro vs Waitihache Marengo, Civil Appeal No. 164 of 2018, in which the court held that the doctrine of res sub judice prevents a court from proceeding with a trial when the same matter is pending in another competent court. Lastly, he mentioned Avodia Antipas Swai vs Asha Ahmed Jama & 4 Others, Misc. Land Application No. 7 of 2023 (HCT, unreported), where the court held that when a suit is found to be res sub judice, it must be dismissed as premature. In conclusion, Mr. James submitted that the present suit is indeed res sub judice with Application No. 177 of 2024, pending before the Tribunal of Temeke. He therefore prayed for the dismissal of the suit with costs. Mr. Hitu, Counsel for the Plaintiff, argued in objection to the preliminary objection raised by the Defendant. He began by addressing the doctrine relied upon by the Defendant, explaining that it is a statutory principle rooted in common law and embodied in section 8 of the Civil Procedure Code. He emphasized that for the doctrine of res sub judice to Page 5 of 13 apply, four essential conditions must be met, a position supported by the decision in Tumsifu Gabriel Mmari vs. Exaud Gabriel Mmari, Misc. Civil Application No. 80 of 2021, which cited the case of Wengerf Windrose Safari (Tanzania) Limited vs. The Ministry for Natural Resources and Tourism and the Attorney General, Misc. Commercial Case No. 89 of 2016 (High Court of Tanzania, Commercial Division). He outlined these conditions as follows: (a) the matter in issue in the second suit must also be directly and substantially in issue in the first suit; (b) the parties in both suits must be the same or parties litigating under the same title; (c) the court in which the first suit is instituted must be competent to grant the reliefs sought in the subsequent suit; and (d) the first suit must still be pending. Mr. Hitu then argued that for the doctrine to be invoked, all these conditions must be satisfied. He contended that in the case at hand, the principle of res sub Judice was not applicable for several reasons. First, he argued that the matters in issue in the two cases were not substantially the same. In the present case, the issue was rent arrears, while in Application No. 177 of 2024 before the Tribunal, the issue concerned the Plaintiffs intention to terminate the lease agreement, as stipulated in paragraph 43.2.1 of the lease agreement signed on 1st December 2021, by issuing a 90-day Page 6 of 13 notice. He maintained that under these circumstances, there was no breach of the lease agreement, as the Defendant was still enjoying his rights under the agreement. The Plaintiff's notice was merely intended to provide an opportunity for the Defendant to make payment or initiate discussions. Additionally, the Defendant was still occupying the leased property, and the Tribunal had issued an order to maintain the status quo pending the determination of an application for an injunction. Mr. Hitu questioned how there could be a breach of the lease agreement under these circumstances. Secondly, he argued that no previously instituted suit between the parties sought an order for rent arrears, further asserting that for res sub judice to apply, all essential conditions must be met. Lastly, he noted that the reliefs sought in the two cases were different. Before the Tribunal, Counsel averred, the Defendant sought an order restraining the Plaintiff from evicting him from the leased property, while in the present case, the Plaintiff was seeking an order for payment of rent arrears for a period of 27 months. He supported this position by citing the case of Uduru Makoa Agricultural and Marketing Co-operative Society Limited vs. Makoa Farm Limited & 2 Others, Misc. Civil Page 7 of 13 Application No. 23 of 2022, where the court ruled that although the parties were the same, the subject matter in issue was not. He then addressed the Defendant's submission that the court in which the previous suit was pending must have jurisdiction to grant the relief sought in the subsequent suit. Mr. Hitu pointed out that in the present case, the Plaintiff was claiming rent arrears amounting to TZS 700 million, an amount that the District Land and Housing Tribunal did not have jurisdiction to adjudicate. In conclusion, he submitted that for the doctrine of res sub judiceto be used as a preliminary objection, all essential conditions must be met, taking into consideration the circumstances of each condition. He contended that the Defendant had failed to differentiate the circumstances of the present case from those where the doctrine applied. Based on his submissions and the authorities cited, Mr. Hitu prayed that the Honourable Court dismiss the preliminary objection with costs. I have dispassionately considered the rival submissions. The issue for determination is whether the present suit is barred by the doctrine of res subjudiceund&c Section 8 of the Civil Procedure Code. The Defendant, Page 8 of 13 through his Counsel, Mr. James, argued that the present suit should be dismissed as it meets the conditions for the application of the doctrine of res sub judice, as prescribed under Section 8 of the Civil Procedure Code, Cap 33 R.E 2019. Conversely, the Plaintiff, through his Counsel, Mr. Hitu, objected to the preliminary objection, arguing that the essential conditions for the doctrine of res sub judice are not met in this case. I take the liberty to reproduce the section for ease of reference: Section 8 of the Civil Procedure Code provides that: "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." The Plaintiffs Counsel has correctly cited the case of Tumsifu Gabriel Mmari vs. Exaud Gabriel Mmari, Misc. Civil Application No. 80 of 2021, which referred to Wengerf Windrose Safari (Tanzania) Limited vs. The Ministry for Natural Resources and Tourism and the Attorney General, Misc. Commercial Case No. 89 of 2016 (High Court, Commercial Division), establishing the four essential conditions for the applicability of res sub judice'. Page 9 of 13 a) The matter in issue in the second suit must also be directly and substantially in issue in the first suit. b) The parties in the second suit must be the same or parties under whom they or any of them claim litigating under the same title. c) The court in which the first suit is instituted must be competent to grant the reliefs claimed in the subsequent suit. d) The pre viously instituted suit must still be pending. I will move on to analyse these conditions considering the rival submissions. As a recapitulation, the Defendant's Counsel, Mr. James, submitted that the present suit and Application No. 177 of 2024 involve the same parties, the same subject matter, and are both based on an alleged breach of the lease agreement dated 1st December 2021. According to Counsel, the Plaintiff's claim in the current suit is related to rent arrears, while the pending application before the Tribunal concerns the alleged breach of the same lease agreement. He argued that, based on the doctrine of res sub judiceand the legal authorities cited, the present suit is barred from proceeding. The Plaintiff's Counsel, Mr. Hitu, however, countered this submission by arguing that the matters in issue in the two cases are not substantially the same. He contended that in the present suit, the Plaintiff is claiming rent Page 10 of 13 arrears, whereas in Application No. 177 of 2024, the matter before the Tribunal concerns the Plaintiff's intention to terminate the lease agreement by issuing a 90-day notice, which does not amount to a breach. Furthermore, the Plaintiff submitted that the District Land and Housing Tribunal does not have the jurisdiction to adjudicate the Plaintiff's claim for rent arrears amounting to TZS 700 million, as this claim exceeds the Tribunal's monetary jurisdiction. Upon reviewing the submissions and authorities cited, it is clear that the matters in issue in the two cases are not identical. The present suit is concerned with the recovery of rent arrears for 27 months, while the matter before the Tribunal relates to the Plaintiff's intention to terminate the lease agreement and an application for an injunction to restrain the Plaintiff from evicting the Defendant. These are two distinct issues, as explained by the Plaintiff's Counsel, and do not meet the requirement of direct and substantial similarity as required under Section 8 of the Civil Procedure Code. This position is supported by the ruling in Uduru Makoa Agricultural and Marketing Co-operative Society Limited vs. Makoa Farm Limited & 2 Others, Misc. Civil Application No. 23 of 2022, where the court held that although the parties were the same, the subject matter in issue was different. Page 11 of 13 Additionally, as highlighted by the Plaintiff, the monetary claim in the present suit far exceeds the jurisdiction of the District Land and Housing Tribunal. Therefore, the Tribunal would not be competent to grant the reliefs sought in the current case, further undermining the Defendant's argument. Based on the rival submissions and the legal authorities cited, this Court finds that the essential conditions for the application of res sub judice have not been met in this case. The matters in issue between the two suits are not directly and substantially the same, and the District Land and Housing Tribunal does not have the jurisdiction to grant the reliefs sought in the present suit. Accordingly, the preliminary objection raised by the Defendant is hereby overruled. The suit shall proceed to trial. I make no orders as to costs at this stage. It is so ordered. %E.I. LALTAIKA JUDGE 15/10/2024 Page 12 of 13 Court Judgment delivered this 15th day of October 2024 in the presence of the Mr. Shabani Omari Gweli, Director of the Defendant and in the absence the Plaintiff.. HE. I. LALTAIKA JUDGE 3 15/10/2024 Page 13 of 13