20131203 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 17 OF 2010 {From the Decision of the District Land and Housing Tribunal of TEMEKE District at TEMEKE in Land Appeal No. 85of 2009J THE REGISTERED TRUSTEES OF THE SEVENTH DAY ADVENTIST CHURCH ................................................... APPELLANT VERSUS PIUS KASIKANA •••••••••......•.•••.••••.•..•......•••......•••••••••• 1 STRESPONDENT OTIENO KAPERE .....••••••••••••••••••••.••...•••••••••••••••••••••••• 2ND RESPONDENT JUDGMENT A.F. Ngwala,J. In this appeal, the 1st Respondent raised a Preliminary Objection on Points of Law to the effect that the subject matter of this appeal is subjudice to Land Case No. 5 of 2010 filed in the High Court, Dar es Salaam District Registry. This Objection was argued by way of Written Submissions. Mr. Msuya learned counsel for the first Respondent submitted that the Appellant had in the trial Tribunal (in Application No. 85/2009) sued the respondents and has filed this appeal claiming a sum of Tshs. 120,000,000/= as compensation and in Land Case No. 5 of 2010 the Appellants be claims for a sum of more that 2000,000,000/=. 1 In Reply, Mr. Chamriho, learned advocate for the appellant submitted that the Respondent did not give the date on which Land Case No. 5 of 2010 was filed either before this appeal was filed or after this appeal had been filed. Mr. Chamriho further submitted that all the 7 issues as set out in our Memorandum of Appeal are quite different from what the leaned counsel for the 1st Respondent alleges to be the matter in Land Case No. 5 of 2010. After going through the records and the Plaint of Land Case No. 5 of 20101, I have now the necessary resource to know whether this appeal is subjudice. Before going further I have to put here the basic tests in determining whether a matter is subjudices. 1. The suits must involve same parties. 2. The suits must involve same subject matter, 3. The Suits must be placed/filed before Court of Competent jurisdiction 4. The Suits must be pending for hearing of the merits of the case. The record show that in Land Case No. 5 of 2010 the parties are the same to the parties in this Appeal except that in Land Case No. 5 of 20101 there is addition of 3 Defendants. The Subject matter in Land Case No. 5 of 2 .. 2010 is a claim of general and special damages in respect of demolition and properties of the Plaintiff (Appellant). The subjet matter of this appeal is ownership of the suit land located at YomboVituka, Temeke in Dar es Salaam. I have no doubt of the Jurisdiction of the Court and I am aware that both suit are pending. Having discovered that the subject matter of these two suits is not the same, this appeal cannot be held subjudice. It is may considered opinion further that this appeal will not decide on the ownership of the suit premises or any of the remedy in Land Case No. 5 of 2010. If successful, the file of this appeal will be remitted in the trial District Land and Housing Tribunal for Objection Proceedings. In the end result, the Objection raised has no merit and is hereby overruled. A.F. Ngwala, JUDGE 3/12/2012. rd Delivered in Court this 3 day of December, 2012, A.F. Ngwala, JUDGE 3/12/2012. 3 3/12/2012 Coram A.F. Ngwala,J. For Plaintiff/Applicant Miss Elizabeth. For Defendant/Respondent present in person For Defendant/Respondent present in person B/c Jane. Appellant: My advocate is attending a case in Zanzibar Courts. 1st Respondent: My advocate is not well. Court: Ruling delivered in Court in the presence of the parties. Order: 1. Hg. on26/06/2013. 2 .. Parties to be notified their respective advocates. A.F. Ngwala, JUDGE 3/12/2013. 4