19961220 TZHC Moshi

_, IN THE HIGH COURT OF. TANZANIA AT MOSIIT CIVIL CASE NO: 5 OF 1993 1. TILOT/\.NGA LIMITEn ) 2o FOVERTY GULCH LIMITED,~- PLAINTIFFS VF.,RSUS TJ-1.1~?,ANIA BREWERIES LIMITED ) ) 3. THE HONOURABLE ATTORN:tl:Y GENERAL)- DEFENDANTS RillISTRAR OF TITLES ) .. RULING We have in this court (Moshi Sub-Registry) two suits which for all intents and purposes appear to be identical in some material particuUi.rs: the parties are nearly the same and the subject matters in the two suits are almost the same. The only difference is that where most of the parties are Plaintiff~in one suit 1 t .. they have become Defendants in the other sui.t. The suits are civil cases no. 2 and 5 of 1993 • .~ Civil case No. 2 was filed on 19/2/19930 ·The parties therein, according to the original plaint were Tanzania Breweries Limited or (ToB.L.) as Plaintiff and R~tian Seed Co~pany Limited as Defendant. Paragraphs 31 4 and 5 of the said Plaint ran as follows:- 113. The Plaint.iffs claim against the Defendant is for vacant possession of al~ that land compris:Lng of 15,480 acres commonly knovm as nsimba; 1 Farm and registered under certificates of title Nos. 5134 1 6260, 8723 and 10.100 situated in Hai District .Kilimanjaro Region herein called the ::suit farms: 1 4. That the Plaintiff further claims from the Defendant the sum of S~..s. 886,837,206/= being mesne profits which would have accrued to it had it been p~t into possession in 1984. .... 5 0 That the Plaintiff was at all material times the lawful registerP.d owner of the suit farms and thus entitled to ' .,\. I 2 -- Copies of the certificates of Title Numbers 5134, 8723, 6260 and 10e100 are annexed hereto as Annextures "Pr• collectively ·,-, and the Plaintiff craves for leave to refer to them as part of this plainto Annexed hereto also is a copy of the said GNo as Annexture ;ip2H to which the Plaintiff also craves leave to ref er to it as part of this Plaint ' 7 (underlining ia nine). The Plaintiff was accordingly praying for a decree for vacant possession of the suit farms in its favour, Sha. 886,837;206/=, interests, costs, etco Some amended pleadings were filed subsequently, but the last amended plaint was the one that was filed on 31/5/1995 pursuant to this court's order made on 8/5/95. Under the current amended plaint we have the same original Plaintiff but three Defendants. These are: Rotian Seed Company Ltdo (Ist Defendant~Tilotanga Limited (2nd Defendant) and Poverty Gulch Limited (3rd Defendant)o Paragraphs 3, 4 and 5 . of the original plaint (as reproduced) have substantially been reproduced in the amended plaint as para.graphs 5, 6 and 7, The only variations are: in para 5 the words Hist Defendant 11 has been substituted for the single word :1)efendantt: aTJ.d in para 6 the claim against the Ist Defendant for mesne profits is now Shs. 436,854,052/= with effect from 1990. Paragraph 9 of the amended plaint now reads: "9o 'rhat despite the Government Notice referred to in paragraph 7 herein, the Ist Defendant, without any colour of right, unlawfully entered upon the said land and took possession thereof and cultivate wheat thereon since 1990 todateo By doing s01' the Ist Defendant deprived the Plaintiff of the said land and suit farms 11 i The Defendants filed a joint written state~ent of Defence on 29/6/19950 · In their written defence a.part from challenging the competence of the suit, they are refuting, each and every claim against them in the plaint. They have also put in a counter-claim wherein they are challen~ing the validity of the said GNo Noo 374 of 1990 and the registration of the 2nd and 3rd Defendants' farms in the name of the Plaintiffo They are accordin~ly praying for a declaration that GN. No. 374/90 is ultra vires the provisions of the Land Ordinance, etc. Similary 1 the.Plaintiff in the reply to the Statement of Defence and in its Written Statement of Defence to the counter-claim, ••• /3 ·•_. 3 is challenging the competence of the counter-claim on the grounds of limitation, non-joinder of necessary parties and non-verification of the pleading, on top of disputing every allegation contained therein. The pleadings in this case are ready and only the trial date has to be fixedo Civil Case Noo 5 was filed on 1·0/3/1993. ·As originally presented the Plaintiffs were Tilotanga Limited and p6verty Gulch Limited and the sole Defendant was Tanzru1ia Breweries Limited. After a successful objection by counsel for the Defendants, Dro tamwai 1 on a point of misjoindcr and non-joinder of parties, thms court (Nchalla, J.) on 17/5/1994, ordered the Plaintiffs to amend their Plaint a~d add the Attorney General and the Registrar of Titles as the necessary parties. In arguing his preliminary objection on the point Dro Lrunwai had contended as follows: 11(3) That the Plaint is irregular for non-joinder of the necessary party to the action. Para 9 of the Plaint asserts that GNo No. 374/90 is the one which purports to extinguish the plaintiff's title over their lands and that the said GN. is ultra vires the Land Ordinance. The said Government Notice was published on 25/8/90 by cornr11and of the President. The effect of para 9 of the Plaint is that the exercise of the Public Corporations Act, 17/69 s.8 thereof though intra vires that A.ct was ultra vires Cap. 113. From what appears in GNo 374/90, the two properties in that schedule the subject matter of this suit c1.rc stated to belong to the National Food and Agricultural Corporation. It is a question of Law if that was so. If that was so then the order of the President was correct because he has powers to realign public corporations. However, if that was not so, then an issue arises on the powers of the President to grant title of the pieces of land in this case under the said Government Noticeo Prayer (a) of the Plaint states the.t the Government Notice in question is ultra vires the Land Ordinance Cap. 1130 The said GNo was not promulgated by the defertdent. The defendant became owner of the pieces of land by operation of the law . and by no act of his. Therefore in our humble submission the best person to explain to the court the exercise of the President 1 s powers under So8 of Act 17/69 is the Attorney Generai. not the defendanto ............ ····---. ·-·· -- • 4 The Attorney General ought to be joined in this case to defend the interests of the Government which has granted the registration of the titles to the suit land to the defendant. A declaration that the G.N. in question is ultra vires·Capo 113 cannot be made without first hearing the Attorney General 11 0 Ruling on this contention, my learned brother Judf,e, very correctly and properly in my considered opinion, held in the favour of the Defendn.nto He said, inter alia, and I quote: "••• The Plaintiffs are in fact and substantially challenging the legality of Government Notice No. 374/90 •••• Under those circumstances, I am highly persuaded that the Attorney General is a necessary party along with the Registrar of Titles who acted on the Governmf.'nt Nf)+.i_,..~ in n11~i:;tion an.d effected the transfers of title to the two f&rms from the Plaintiffs to the pre.sent defendant 11 • The amended plaint was duly- presented andfiled on 24/5/1994. It has now three Def~ndants: The ·Tanzania Breweries Lirni ted ( the T .B .L. Ist Defendant), the Hon. Attorney General (the A.G, 2nd Defendant) and the Registrar of Titles (thE:1;.,,3rd Defendant). The most relevant portions (for the purpose of this ruling) are paragraphs 6, 7, 8, 9, 10, 11 and 12. They read as follows: 11 6. On or about 6th June, 1963 th9 Fi,~st Plaintiff acquired all tho.t parcel of land situated in R.I\! DISTRICT KILIMANJARO RJD..1T0M ~-~~-,,~;,,,::: ~::-:~roxi111ately 4050 acres and comprised in certificate of Tital Noo 62600 The value of the unexhausted j_,npr0vements on the said farm is Shs. 100 milJ.iono A copy of the certificate of Titale is annexed hereto and marked 7. On or about 6th September, 1960 the Second Plaintiff acquired all tJ-->at pc..;.·.:,-:.,:;_ v,~ lru1d situated in HAI DISTRICT KILIMAN<TARO Il:r'XUON mo:,..suring approximately 1,786 acres and compri,sed in certificate of Title No. 8723. 5 The.value of the unexhausted improvements on the said fn.rm is Shso 50 milliono A copy of the Certificate of Title is annexed hereto and marked ::pLF - B11 • 8. Subsequent to the acquisition of the said parcels of land by the Plaintiffs, the Plaintiffs developed the said lands for agricultural purposes and have been using the said lands todate. 9o On or about 7th September, 1990 the Government published Government Notice Noo 374 entitled: The Public Corporations (Transfer of Assets and 11 Liabilities) (Ta.~zariia Bre~eries Limited) Order, 1990 and purported to transfer the farms ovmed by the First and Second Plaintiffs to the Defendant. A copy of the said Government Notice is annexed hereto and marked "PLF - C11 o IO. On or about 15th March, 1991 the :first Defendant presented to the third Defencle..--:c-!:: (:'..:::,., -·" r,:i.tles) an application to register the Titles of the Plaintif:s in the first Defendantis nameo Copies of the said Application are annexed hereto and marked ,:PLF - D';o The third Defendant unlawfully granted the app1icntion and effected the transfero 11 0 That the Government Notice which purported to extinguish the rights of the Plaintiffs over their lands is unlawful and ultra vires the Land Ordinanceo 12 0 The Plaintiffs therefore cln.i~, .c- __ :: - ::~~ 7 .G.ration that that portion of Government Notice Noo 374 of 1990 which purports to transfer the Plaintiffs farms to the first Defendant is null and void and completely ultra vires the Land Ordinance. 13. The Plaintiffs further claim that the registration of the Plaintif.fs farms in the name of the first Defendant be se+, aside and that the Plaintiffs be declared the ri,~htful owners of the said :farms 1;o It prayed for reliefs accordinglyo ooo/6 6 In its Written State·nent of Defence, the ToB.L. denied every material allegation ~gainst it in respect of the suit farmso It further prayed that the plaint be struck out as defective for lack of a proper verificationo The other two Defendants filed a joint \•Jri tten Statei11ent of Defence disputing the Plaintiffs claims of ownership over the suit fo.rmso On 13/3/1995 the District Registrar, in the absence of all the parties, appointed the 7th April, 1995 to be the day when trial of the suit wou2.d have co~mencedo Indeed, by then the 2nd and 3rd Defendants were yet to file their Written Statements of Defenceo The hearin~ date notices were issued [md duly served on all the parties. On the said day when the suit was called on for hearing none of the Plaintiffs nor their advocate was presento Mr. Ka~ara, learned counsel from the T.LoCo successfully moved the court to dismiss the suit under the provisions of Order 9 Rule 8 of the Civil Procedure Code, 1966 (or the C.PoC. as I will hereinafter refer to it). -;u"')·::c➔ qu2-·11: to the dimissal of the suit the Plaintiffs filed an application to have the dismissal order set asideo On 30/11/1995 this court, (Mushi, Jo) made the following order, on the applic~tion: HQ_:r:-j_eE_~ Since counsels for the respondents do not oppose, the application, the application is hereby granted. The suit is hereby restored and the matter shall continue from where it was lefto Costs are granted to the First Respondento This matter to done up for mention on 9/2/96' 1 • Indeed the 2nd and 3rd Defendants filed their joint W:;:-itten Statement of Defence on 23/2/19960 'rhis case was finally fixetl for hearin~ for 3rd ai1d 4th October, 19960 I have deliberately gone into these details becaus0 I am convinced that they have a compelling bearing on the decision to be made on the preliminary objection,s raised by learned counsel for the Ist De_fendant, Mro Ka·nara and ),1ro Ng 1 maryo, on the competence of this suit, as I shall presently showo On 12th July, 1996, Mro Ng 1 maryo filed a notice of additional points of preliminary .objectiono These points are: 1o That this court has no jurisdiction to adjudicate upon the suit inasmuch as it can only entertain it by way of appeal. 7 2. That this suit is as against the counter-claim in Civil Case No. 2 of 1993 and therefore harred by the doctrine of res sub judice. It will be recalled that the first objection touched on the in competence of the suit in so far as the plaint does not comply with the mandatory provisions of Order VI, Rule 15 (3) of the C.P.C. I shall start with this ground of objection. The said sub-rule reads as follows: 11 The verification shall. be signed by the rerson making it and shall state the date on which and the place at whicb it was signedii 0 On the whole rule 15 deals with verification of pleadings and directs that every pleasing shall be verified at the foot by the party pleading or some other person acquainted with the fncts of the case. Presenting their arguments on this point Mr. :Kamara and Mr. Ng 1 maryo submitted that the plaint is plainly defective in that it is not properly verified. They pointed out that the same is plainly without any indication as to where and when it was verified. They accordingly prayed thnt as the word used is sh~l-2:., this court should hold that the suit is incoillpetent for lack of proper verification of the plaint, and proceed to strike it out wit.h costs. On behalf of the Plaintiffs, Mr. Ngalo, conceded that the plaint is not verified as is required by rule 15 (3) of Order VI of the C.P.C. However he quickly, and without convincingly telling rne why, invited me to nfind that requirement is superflous:: a.11.d that lack of verification is not fatal to pleadings. He referred me to the decision of the learned Justice of this court (Mrs Munuo, J.) in the case of AN:ftlLINE BLINN Vs. LESIRWA - CIVIL C.'\3E NO: 25 of 1995, (Arusha Sub-registry) in which she had ruled on 30/9/96 that an omission to verify is an irregularity which does not vitiate the proceedings. He accordingly invited me to follow that line of reasoning and order that the omission be cured by 1•inserting the place and initialing the samef1 o In answering these interesting arguments I will be~in by associating myself with the sentiments of Mr. Ng 1 maryo in reply to Mr. Ngalo's submission on the point. These ure .to the effect tho.t our C.P.Co has mandatory and discretionary provisionso One such seemingly mandatory provision is the one on verification of pleadings as contained in rule 15 of Order 6. 18 8 The indication of where and when the pleading was signed is as important as the signing of it. :Rut as ;,1adam Munuo, Jo rightly held, failure to comply with the provisions of this rule 15, should not render the pleading wholly defective and lead to it being e.utomatically struck out, if there is room for rectificationo Such roo:n for rectification is legally permissible under the provisions of rule 17 of the same order. And as I have pointed out i;1 yet another rulin~ I have just delivered.this morning (in civil appeal No. 7 of 1994 of this court) it has been ,;repeatedly said that rules of procedure are designed to give effect to the rights of tha parties and once the parties are brought before the courts in such a way that no possible injustice is caused to either, then, a mere irregularity in relation to the rules of procedure would not result in vitiation of proceedings: See MAWJI __v_ARUS_Hi\_.m::~RAI:._.:ST_ORA!_.( 1Q.70)__ E_o;0:o.,.1_3J • In the instant case it is my conviction that failure to comply with the mrui.datory directions of Sub-rule 3 of rule 15 is a mere irregularity which has so far occasioned no injustice to any party in these proceedings. However since the law requires that the date and place when arid where the pleading was verified be shown thereon, this is the sort of omission which ca11 be cured by resortin,:,; to rule 170 That has always been the approach of the courts in this country and elsewhere in the British Com~onwealth. I see no good reason why I should depart from this well established path. Therefore, while upholding the first prelirnin2.ry point of objection, I hold that the defect is a curable one under the provisions of the same law. In the light of the above I order that the a:nended plaint be B.'nended in the verification clause by inserting the date on which and the place at w:1ich it was signed and the same be initialled. This will save the time and resources of the litigantso Regarding the objection on the incompetence of this suit based on So 102 (1) of Capo 334 which reads: 17 Any person aggrieved by a decision, order or act of the Registrar may appeal to the High Court within three months from the date of such decision, order or act: Provided that - (a) no such appeal shall lie unless the appellant or his advocate shall, within one month from the date of such decision,·order or act have given to the Registrar and to the High Court hotice of intention to.s.ppeal; and oo••• etcno the following arguments were presented by counsel on both sideso 9 -- In his submission on the issue Mr. Kamara contended that this court lacks jurisdiction to adjudicate on the suit since it can only entertain it by way of appealo He anchored his contention on paragraph 10 of the amended plaint. I have already reproduced it in full above. On that basis the learned counsel submitted that the Plaintiffs are seeking in this suit to challenge the decision of the Registrar of Titles, by moving this court to quash the said decision using its original jurisdiction. To both counsel for the Ist defendant, this court has been wrongly moved by the Plaintiffs. '.l'his is because, a.s they are contending, the procedure of challenging the decision of the Registrar of Titles is not governed by the C.P.C. but bys. 102 of the Land Registration Ordinance, Cap. 334. They have argued that sub-section 1 of S. 102, clother, this court with appellate jurisdiction only in order to adjudicate on the decision given by the Registrar of Titles and that in sub-section (3) it is provided that this court's jurisdiction shall be invoked by way of a petition of appeal. It was accordingly prayed on behalf of the Defendants that the suit be dismissed with costs. In reply to these arguments, Mr. Nga.lo submitted that the same were totally misconceived in law. To justify this charge, Mr. Ngalo submitted that if one reads section 101 and 102 of Cap. 334 together, one gets a clearer picture that for one to invoke Part 6 of Cap. 334 (dealing with appeals from the Registrar's decisions) first all a.11 application must have been made to him in writing and thereo.fter he must have mo.de a written decision, which must be 9.ccompanied by his reasonso Then a party aggrieved by such a reasoned decisi'on can appeal u..>1.dor s. 102. i -t Hr. Ngalo further conternled thnt in the c:i.se at hand there was no such application and there was no such decision or order by the Registrar which was capable of being challenged on appenlo The learned counsel further submitted, and in my view quite correctly; that in order ::to lmow the basis of the suit there is need to look at the entire plaint:;, as, ::the thrust of this s 11it is .the validity of Government Hotice Noo 374/90, with regafd to the question whetl,er the ,said Government Notice can be invoked to revoke the Right of Occupancy granted to the Plaintiffs tmder Cap. 113r:. It was Mr. Ngalo 1 s chief weapon in his ar~~uments in reply that the plaintiffs are not cho.llenging the decision of the Registrar of \ Title, (as none existed) but· are challenging the validity of the G.H. which unlawfully di vested them of their rights of occup-lricy in the said farms nnd vested them into the first Defend-:mto on/10 . 10 After going over, dispassionately, the .3.rguments presented on behalf of both aides, and the plendings; I am now convinced that the objection on the competence of this suit on this r;round is not well taken and therefore not ,susta.inable. I will show whyo To answer satisfo.ctorily the quibbles of counsel for the Ist Defenda.l'lt on the issue one has first of all to ask oneself tl.1is question; What is the main grievance of the plaintiffs in this suit and what remedy are they seeking? The answer has to be sought in their pleadings read as a whole as submitted Mr. Ngalo, and not from a portion of it as done by counsel .for the Defendants. Th3.t is why I as early as possible, deliberately reproduced paragraphs 6 to 13. These show us what the plaintiffs are aggrieved of and who.t redress they are seeking from this fountain of justice. Parasraphs 9 - 12 show in no uncertain terms that the plaintiffs main bugaboo or bane is G.N. No. 374/90 which they are claiming unlawfully dispossessed them of the suit farms and purported to transfer their property in them to the Ist Defendant. They are accordingly praying this court to declare it null and void as it is ultra vires the Land Ordinruice, Co.p. 1130 Whether or not this is correct, will be decided after a full trialo The next question which inevitably presents itself is this~ can the validity or invaliditJ of G.N. Noo 374 of 1990 be decided by this court by way of appenl under .S. 102 ( 1 ) of Co. p. 331+? Without beating about the bush I have no hesitation in providing a neg::ttive a negative answer to it. The appeal will be struck out, if not dismissed, o.s being grossly misconceived and incompetento In that case th:=:n wlr.t will be the remedy of the party who has found his right; infringed by G.N. No. 374/90 which was not promulgated by the Registrar of Titles under the provisions of r:c.p. 334? The only answer is that he has to seek redress through the courts by way of a civil suit. The same answer will ~o to the question: What steps should a person who thinks that G.N. No. 374 of 1990 is invalid take to remedy the situation? That is indeed wh2..t thG Plaintiffs have done. Indeed th&t was the wise stand taken by the first counsel of the 1st Respondent, Dr. Lamwai, when he made tb.e first preliminary objections to the Plaint on. the iround of non~joinder of necessary p::i.rties 1 and ;r.y brother Jud:;e (Nchalla, J.) very wisely saw the principal issue along the same lineso The plaintiffs are involving the Registrar of Titles in the suit because he effected the chGmge in no.mes on the certificates of Title in respect of the suit farms after the promulgation of the s8.id-G.N. This followed, as is evidenced by Annexture "PLF - D" to the plaint, an application by the First Defendant to have the clmnr~e effected by virtue of the provisions __ of_G:,N•. No.374 of 1990_ which was ci~ed~a.s... nuthority for __ .tho said application, nnd it reads: • 0 ./11 . . 11 APPLICATIOl\T 1.~0R RNJISTRATIQ;,1 OF A TRANSMISSION '1 BY OPERATION OF 1.rrm LAW" O The Registro.r has no choiceo The tro.nsmission was by virtue of the operation of the law. He did so automatically to give full effect to the said Government Notice. He was bound to do so os the law ho.d o.lrendy divested the property rights in the suit farms from the plaintiffs to .the first Defendant. I would refer to what he did as a mere proforma p.;.'l.I'ticipation in executin,'5 2. statutory duty to .'!,;ive effect to a decision done by another authority. The 3rd Defendant made no decision at all which could be appealed n.'.$ainst under s. 102 (2) of Cap. 334 •. As the f,3.cts glarine;ly show he had no decision to m::i.ke for he h.::td no discretion to refuse the application by the fir.st Defendant. That is why the Plab.tiffs after wiselydeciding to test the validity of the Government Notice, have further prnyed that in the event their main p-rayer succeeds, then the registrntion of the suit farms in the nnrne of the Ist Defendant be set aside. They have done so, in my view, ex abundantj_ cautela. However I see no good reason why I should strike it out. If the said G.N. is found to be null and void then the rights of the First Defendant over all the farms mentioned in it will be extinguished o.utonmticnlly. But for the parachial view taken by counsel of the firGt Defend~nt of the nature of the entire claim of the Plaintiffs, this objection. would not have been raised. I accordingly overrule the objection r,'J.ised on the competence of this suit on t!1is ground. The last ground re,sts on S. 8 of the CoPoC. which ren.ds c.s follows: 11 No court shall proceed with the trio.l of any suit in which the matter in issue is '.'l.J.so directly and substo.ntinlly in issue in a previously instituted suit between the same p:~.rties, or between parties under whom thev or any of them claim li tir~nting under the same title where such suit is pending in the so.me or nny other court in ~I'2.nganyik2.. having jurisdiction to gra."1t the relief claimed·,. Suffice it to say here th~t the principQl object of this section is to prevent courts with concurrent jurisdiction or the same court from simultaneotIBly trying parallel suits in respect of the same n.12.. tter in issue - see generally, M'ULLA, Indiean Code of Civil Procedure, 1908, (4th ~dition Vol. 1, PP. 67 to 71.) Thnt was indeed the thrust of Messrs. Kamara and Ng:maryo 0 s ar,,;ument on the issue. Presenting their arguments on the issue the learned counsel for the 1"irst Defendant vehemently argued that this suit is o.s against the counter-claim in civil case No. 2 of 1993 bad in terr>1s of the doctrine of res sub judice. According to them civil case No. 2 was filed on 19/2/93 where the original parties, as already indicated, were the T.B.L. and Rotio.n Seed Co~pnny • • 0 ./12 12 It was on 19/3/93 when Rotia.."l Seed Co'1!pany filed its ~-Jri tten St:?.te,-nent of Defence along side it with a counter-claim. On 8/5/95 the Plaintiffs was ordered to amend its plaint and include M/S Tilotanga Limited and Poverty Gulch Limited. The amended plaint wctS filed on 31/5/95. The three Defend-:nts filed a j0i11t Written Stntement of Defence alongside with it a counter--clai::n, which was substMtinlly the same as the initial one, on 29/6/95. Meruiwhile civil co.se No. 5 hn.d been dismissed on 7/4/95 for, what Mr. Kn,..1ara cnlled •;wa!lt of prosecution·'. (Indeed the SG.me was disr.:iissed for non~appearnnce of the Plaintiffs, there is a whale of a difference between the two). 'rhe same however w-:ts restored on 30/11/95. As, with the exception of the nu;:ibering of p::.ragraphs, the -:::ouni:er-clairn in civil case No. 2 is substantially a replica of the plaint in civil case No. 5, the learned counsel submitt8d further th:,.t as of 30/11/95 there were two suits in this court • .On the basis of these fo.cts counsel for the Ist Defendnnt ho..s o.rgued that this court has b,~en put in an emb:=i.rr-'.lssing position wheraby his :rcliP.nt 9 s position is bombarded and vexed with two suits simultaneously, with the effect that in the event these two suits are allowed to proceed on trii:o.l in a competitive manner the results whereof may be unpredictably conflicting". Mr. Kain::i.rn, then proceeded to suggest a remedy: t:to nvoid such embarrassment resort should be ho.d to ,S. 8 of the C~FoC. 1966 in thnt civil case No. 5 of 1993 which took effect on 30/11/1995 should be stayed to await results in the counter-claim in civil case No. 2/93 1 :0 In reply Mr. Ngnlo has argued tbnt since the pe.rties in civil CD.Se tfo. 2 are T .B .L. on the one part and Rotian Seed, Tilot.:mga G.nd Poverty Gulch Cornpany Limited 011 the other and those in civil case No. 5 are TilotO-n.'?/l Comp,3.ny and Poverty Gulcb Company Limited as Plaintiffs nnd T.B.L., thEe Hon. Attorney General and the Registrar of Titles D.s Defend~nts it is fc.ctually wron-s to contend that the parties in both cases are the sa,Yteo Hving said so, Mr. Ngolo went further to defend his position .:ls follows. According to him in civil co.se No. 2 there was a court order to amend the pleadim:s. The said am·ended plnint w0.13 filed on 31/5/95. However, the amended plaint in civil case No 0 5 had long been filed prior to that date (on 24/5/94) and so they were incourt already before the plaintiff fil0d its arnended plaint. He further contended that the counter•-clo.in1 in civil case No. 2 is tbeir plending which was filed.on 29/6/95 long ofter the amended plaint had been filed in this case (No. 5). In that case, Mr. Ngalo concluded, if the doctrine 0:f res sub judice were to be applied in the two cases, then it is civil case No. 2 which is to be barred and not this one (No. 5). • 0 ./13 13 In reply Hr. Ng 1 rnaryo laid emphasis on the issue of :;commonalty of parties and issues. in the two pending suits:;. On this b.::i.sis he insisted thnt the issues raised in the cotu1ter-claim in civil co.se No. 2 and those in the pl2.int in civil case No.5 o.re substantially the so.me and between the_ same p,s.rties. In conclusion, Mr. Ng 1 m:=tryo submitted that as the D.':Jended Plaint was filed first and the counter-claim en.me l,').ter, and as civil case No. 5 ca:ne into being on 30/11/95, ;:when it wn.s resurrectedi; to use his ovm words, then it c'.'.l.ne later in terms of res sub judice and so it must be stnyed to ::await the finclity of the counter-clo.irn in Civil Case No. 2/93:;. First of all, the fact that a counter-claim is in l~w a cross-suit needs no emphasis here.. Secondly, I wish to correct the :11isconc,:!ption held by Mr. Ka•nnra on the nature and operation of t~e doctrine of res sub judice 2.s anshrined ins. 8 of the C.P.C. It will be recn.lled thnt Hr. Knin::ira while presentinr:; his argument on the issue said th::i.t \1civil C::tSe No. 5 of 1993 is, as ag-'.linst the coimter-clai:n in High Court Civil Cc,se No. 2 of1C)93 (Moshi Re.,;,;istry) .1??.d...i?..~.e_r:;.1_s..o.~...tJ1_e__ 9-_o_c_t_l',i_n_~. ?}.. E.~s . subjud.i.~e:; ( emphasis is mine). This is incorrect. It is trite law that this is only a rule of procedure which, as o.lreo.dy enrlier indico.ted in this ruJ.in!:,, aims at preventing courts with concurrent jurisdiction from trying simult:meously identical suits between the SD.!iJe parties. It does not be.r the filing of such suits, either in the sn.me court or di:fferr:mt courts with concurrent jurisdictions. I am sure it will be accepted, even by ;•-1r. Kam::i.ra, that the words ,:no court shall_proceed with the trinl of any suit:; do not bar institution of similar suits but bar the court in which subsequent identicnl suit is filed from :proceeding with its trial pending the disposo.l of the earlier instituted. suit which is still pending in the same court or other court in 'r-:mgc..nyik.s., of competent jurisdiction. Having gone trough the relcvnn.t pleo. dings I a,11 sc,tisfied that the mc..tters in issue and the pnrtics in the counter-clni,i1 in civil case No. 2 and the plaint in civil case No. 5 are substantin.lly the same :ind all things beinr.; equal, the suits are res subjudice as a~ainst the T.B.L. on the one hand and Tilotanga Limited and Poverty Gulch Limited (and even Rotian Geed Company Limited, which according to the pleadings is shown to be the m.'.lin shareholder in the two companies) on the other. However there is the issue of which suit came first, for it is the pendency of the previously instituted suit which constitutes a b.'.U' to the trial of the s11bsequent e:ui t. On .the undisputed facts available it is crystal clear that the amended plaint in civil case No. 5 of 1993 was filed much earlier than the amended plaint in civil case No. 2 of 1993. • •• /14 • • 0 • 14 The counter-claim in civil case No. 5 which is a cross-suit and which is the subject of this objection, wos filed on 29/6/95, again long after the amended plaint in this civil case h:1.d been filed. On the face of it ther0fore, one would be entitled to hold that if the provisions of S. 8 of the C.PoCo were to be held to apply to the two suits (civil cc.se No. 5 and the counter-claim in civil case No •. 2) then it is civil case N,:i. 2 which contains the counter-claim which was filed while civil case No. 5 was pending in this court, which hns to be stayed. If I have correctly understood both M~. Ko.me.ra mid i1r. Ng 'rnaryo, and I nm convinced tklt I have, the two coun,5el seem to recog,1ize this· obvious fact. However, to avoid I this snare they h,3.ve ingeniously argued that since civil case _r~o. 5 was dismissed on 7/4/95 nnd the counter-clcim was filed on 29/6/95 before civil co.se No~ 5 was riresurrected•; on 30/1,1/95, . then .th0 counter-clnim should be taken to have been the first in time and should accordingly take precedence in terms of trial over civil case No. 5. I must confess th-3.t lecrned counsel have stratched their ingenulity to the point of incredulitJ'.• Let us look o.t the order of the court of 30/11/95. The November, 30th order unequivocally and u..~conditionnlly, provides that civil case No. 5 of 1993 ;'is hereby restored ::md the matter shall continue from where it W:J..S left''• Hestorntion for our purpose heremenns to pl?.ce or return to the formerly occupied position or si tua.tion. Once the cr,,..se w::i.s r,,stored it resumed its original position in the court re13ister a.'1.d every process, action, step etc taken therein before 7/4/95 is not in anyway ab~ogated or prejudiced by the dismissal order which wns unconditionn.lly set nside. It goes without saying therefore that the a'llended plaint in th:::.i.t•case is still legally recognized as having been duly .filed on the very day it was filed before the suit was dimraissed for non-appearance of the plaintiffs. In terms of .S. 8 of the C.PoC. therefore, the trial of the cross suit in civil case No. 2 of 1993 is ba.rred by.the pendency in this court of the previously instituted civil case No. 5 of 1993 and it is so ordered. All said and done I hereby dismiss two of the three preliminary points of objection raised by counsel for the first Defend.s..nt and sustain only one of them o.s I have elaborately shown in this ruling. The Plaintiffs will have their to.xed costs necessitated by these preliminary objection proceedings. However, as the Ist Defendmit has succeeded on one of the points it raised, I will order that the plaintiffs be entitled to only two thirds of the entire costs. It is so ordered. i' • 0 ' 15 Dnte: 20/12/96 E.M.K. Rutakruigwa, J. --~- Corrun: 1 For Plaintiffs - Mr. Ng maryo for· Mr.- Ngalo, Advocate For Ist Defendant: Mr. Ng 1 maryo ·for Mr. Kamara, advocate For 2nd & 3rd Defendants: !'ir.• Mwaimu - State Attorne¥ 0 C/Clerk - Miss Rwiza Court~- Ruling delivered in Chambers this ·20th day o~ December, 1996 at Moshi._ ~ . r:.~), . .r,~·l· t y~~ E. M. I<.~Aft':'mr:;wa, Judge,.' - 20/12/96~ (