ikoma park hotel co ltd vs commercial bank of africa 2020 tzhclandd 110 22 april 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 54 OF 2019 (From the Decision o f the District Land and Housing Tribunal o f Kinondoni District at Mwananyamaia in Land Case No. 589 o f 2019 before Lung'wecha/ Chairman deliverd on ISP March 2019) THE IKOMA PARK HOTEL CO. LIMITED.....................APPELLANT VERSUS COMMERCIAL BANK OF AFRICA (TANZANIA) LIMITED..... ...... ................................................. RESPONDENT JUDGMENT OPIYO. 3. The genesis behind this appeal is the summary judgement and decree of this court of 28-09-2018, by Hon. Mlyambina J, in favour of the respondent herein above against the appellant, Ikoma Park hotel Co. Limited and one Frank Mago Mihoye as a co- defendant in a civil case No. 26 of 2018. The said judgement was for payment among others, of Tshs 225,466,082.75 being an outstanding debt balance owed to the appellant by-the respondent. It was further decreed that, in the event the defendants' failure to pay the decreed sums above, the court be pleased to order the properties so charged as securities for the loan to the appellants be actioned to pay for the sums. i On November 2018, the respondent went on to execute the decree of Hon. Mlyambina J against the appellant issued in the civil case No. 26 of 2018 as explained above, by auctioning the appellant's property (hotel). The appellant in a move to challenge the sale of her property, rushed to institute a suit (land Application No. 589 of 2018) at the District Land and Housing Tribunal of Kinondoni against the respondent. In turn, the respondent advanced two preliminary objections, that the suit was res judicata and further that, the decision of Hon. Mlyambina J was functus officio against the said suit so instituted. The trial chairman when deciding on the two objections by the respondent, struck out the suit on grounds that the same was res subjudice. He stated further that, the proper procedures to be adopted by the appellant was not to open a fresh suit, but to challenge the said execution to the same court which passed the decree. Aggrieved by the decision of the trial tribunal, the appellant lodged the present appeal with the following grounds;- 1. That, the Honourable tribunal erred in law and facts by striking out the application without citing the proper provision of law and the reasons to do so notwithstanding the facts that the preliminary objections raised by the respondent on res judicata and functus officio were neither dismissed nor sustained. 2. That, the trial tribunal misdirected itself by holding that, the subject matter in dispute was all about the execution of the summary decree 2 for Civil case No. 26/2018 in the High Court of Tanzania, therefore res subjudice notwithstanding the fact that the applicant contended to challenge illegal, unlawful public action which the respondent intended to conduct on 28th November 2018 over the premises in dispute which does not in any how constitute the proceedings of the Civil cases above, but was to be treated rather as the defense of the respondent. 3. That the tribunal chose to misdirect itself when it adjudicated the preliminary objection raised by relying on pleadings and Annexures of defense which were to be ascertained by evidence contrary to the position underlined in the Mukisa biscuits Manufacturing Co. Ltd versus West End Distributors Co. Ltd. 4. That, the trial tribunal erred in law and facts by ignoring the argument given by the applicant that, the application had a new cause of action enticed with claim of the General damages caused by the act of the respondent to illegally intend to auction the premises in dispute, a claim which cannot be entertained in the said previous proceedings which the court was said by the respondent to be functus officio. 5. That, Generally the ruling of tribunal is biased as it did not incorporate the arguments of the appellant but rather a copy and paste work of the arguments of the respondents submission without balancing rival arguments. The appeal was argued by way of written submissions. Advocate Elias Msuya appeared for the respondent, while the appellant was represented by Charles Attesh, her Company Secretary. Submitting for the appeal, the appellant consolidated all grounds of appeal and argued them together that, the matter is not at all a resjudicata nor functus officio. He contended that the suit has a new cause of action which does not emanate from the Award in civil case No. 26 of 2018 before Mlyambina, J. It is also not a res subjudice matter. Above all, the trial chairman did not give reasons why he treated the case as falling under section s.8 of the Civil Procedure Code Cap 33 R.E 2002. The appellant went on to argue that, their intention to file the suit at the trial tribunal was to challenge the sale by public action of 28th November 2018. It was insisted further by the appellant that, the trial tribunal had a duty to adjudicate the matter of intended public action on merits and be in a position to determine whether the said public auction of the appellants' property is justified, because the appellant did not fail in any way to pay the outstanding debt. The appellant maintained that, the respondent was not executing the decree of the High court rather her own decree and that was the reason for instituting the suit. Therefore it was not an insubordination of the powers of the High court, since the said execution was done without the order of the High court which passed the decree so executed. He argued that, that was an act of misrepresentation by the respondent on the gist of the decree and it has to be treated as a new cause of action. Therefore, the preliminary objection by the respondent had no merit and did not meet the requirements set out in Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd (1969) EA 696. In reply, the learned Counsel for the respondent, Elisa Abel Msuya, argued that, the trial tribunal was right and correct in its decision and this appeal is devoid of merit. He relied his arguments on section 38 the Civil Procedure Code, Cap 33 R.E 2002, that, "AH questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution, discharge or satisfaction o f the decree, shafi be determined by the court executing the decree and not by a separate suit." Mr. Elisa Abel Msuya went on to argue further that, the principle laid down in Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd (1969) EA 696 was not violated. It is a general one, therefore when a point of law is in issue and relates to application of s. 8 of the Civil Procedure Code, Cap 33 R.E 2002 (res subjudice), the rules of the game must change to cover the same. The court cannot make a formed decision without looking at the pleadings fifed by the opposite side. Therefore it was imperative for the trial Chair to refer to pleadings filed by the defendant at District Land and Housing Tribunal in order to decide on whether the matter (Application No. 589/2018) is res subjudice or not. He thus submitted that, the trial tribunal applied the principles of ressubjudice correctly, hence, this appeal therefore is baseless. In rejoinder, the appellant maintained that, the trial Chairman was wrong to make findings on what was supposed to be made on the merit of the case as the issue of execution was raised in the written statement of defence as the reason to conduct the sale. Therefore, it was not proper to be decided on the preliminary objection as it contravenes the rules laid in Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd (1969) EA 696. The appellant argued further that, under section 42 of the Evidence Act, it is allowed that, the court can only take a cognizance whenever there is an existing Judgement or decree in previous proceedings as a relevant fact when the question is whether such court ought to take a cognizance of such judgement or to hold such trial. After these rivalry submissions of parties I decided to have an apprehensive and attentive scrutiny of the records of the trial tribunal along with the said submissions from the parties. One issue stands out for determination in this appeal and that is none other than, whether or not the instant appeal before this court is has merit. I am aware that the proper and correct course for whoever is aggrieved by the execution process or procedures execution of the decree of court, should consult the same court which issued the decree. It is clearly provided under section 38 the Civil Procedure Code, Cap 33 R.E 2002 supra that, any 6 questions existing between the parties to the suit in which the decree was passed, or their representative, relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit. I learned from the submissions by the appellant that, she was only seeking to challenge the intended alleged illegal public auction of her hotel and not otherwise. To her, that constituted a separate cause of action suficientto be determined by the trial court in a separate suit. The respondent on the other hand maintained that, the sale following the summary decree of the High Court by Hon. Mlyambina, J. which was clear that, in the event the appellant fails to pay the decreed amount, then her properties charged on the facility should be sold to realize the debt. i What is clear from both parties in their arguments is that, the purported sale of the appellants' hotel did not come from the air, it had its origin which is nothing, other than the judgement and decree of the court in civil case No. 26 of 2018. We may or may not agree that the matter at the trial tribunal was neither a resjudicata nor res subjudice, but it does not take away the reality that, under section 38 of the Civil Procedure Code, (supra) the trial tribunal was barred to entertain the said suit as it involved a question that arose in an execution of the decree of court. Whether the sale was legal or illegal it is a matter to be investigated by the same court which issued the decree and 7 ordered execution of the same, not the trial tribunal and the application of section 38 of the Civil Procedure Code, Cap 33 R.E 2002 is inevitable. In the case of Exim Bank (T) LTD versus National Furnishers Ltd, Misc. Land Application No. 995 of 2017, High Court of Tanzania, land Division at Dar Es salaam, (unreported) Mzuna J observed that:- "There may be a good course but the mode in which it was sought is what is being challenged. There is an issue or question between the parties in the application that relate to execution discharge or satisfaction o f the decree thus warranting the invocation o f section 38 (1) o f CPC not the cited provision " In that footing, the present appeal lacks merits is hereby dismissed with costs. The decision of the District Land and Housing Tribunal for Kinondoni striking out the application is hereby upheld. Ordered accordingly. M. P. OPIYQ JUDGE 22/4/2020 8