Unfreight2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND APPLICATION NO. 16803 OF 2024 (Originating from Land Case No. 15779 of 2024) UNFREIGHT LOGISTICS LTD..................................... APPLICANT

VERSUS LAMADA HOTEL AND APARTMENT LTD............. 1st RESPONDENT

THE REGISTERED TRUSTEES OF THE ANGLICAN CHURCH OF TANZANIA........................................................ 2nd RESPONDENT THE ANGLICAN CHURCH OF TANZANIA.......... 3rd RESPONDENT REV. FR WILLIAM MSAKI................................. 4th RESPONDENT PADRE LAMECK P. NDOMBA............................ 5th RESPONDENT

RULING Date of Last Order: 28.08.2024 Date of Ruting: 05.09.2024 T.N. MWENEGOHA, J This Ruling is in respect of a Preliminary Objection, raised by the counsel for the 1st Respondent that the Application at hand is res-subjudice, hence contrary to section 8 of the Civil Procedure Code, Cap 33 R.E 2019. Advocate Omari Kilwanda for the 1st respondent, maintained in his written submissions that, the present case emanates from Land Case No. 15779 of i 2024, pending in this Court. However, the original case was not supposed to be filed in this Court as there is another case, involving the same parties; save for the 2nd and 5th respondents; same subject matter and same relief, pending before the District Land and Housing Tribunal for Temeke, vide Land Application No. 48 of 2024. Among other things, in the said case, the applicant has prayed not to be evicted from the suit premises until the final determination of the case pending before the Tribunal. Therefore, this Court lacks the jurisdiction not only to entertain this Application but also the main suit forming the basis of this case. That the Application is incompetent as per Avodia Antipas Swai versus Asha Ahmed Jama and Others, Misc. Land Application No. 7 of 2023. Replying to the submissions by the 1st respondent's counsel, Advocate Fares Mshana for the applicant maintained that the Objection is baseless as there is no case of

this nature before any Court of Tribunal in this country. After all, if the case stated by the 1st respondent, vide Land Application No. 48 of 2024, do exists, then this Objection was supposed to be raised against the main case and not in this Application. Therefore, this Objection is purely on facts and not on point of law as required by Mukisa Biscuits Company versus Westend Distributors Limited (1969) EA 696. In rejoinder, the counsel for the first respondent insisted that, the case at hand is subjudice to the pending case at the Temeke District Land and Housing Tribunal as it involves the same parties, same subject matter and same reliefs. 2 I have gone through the submissions of both counsel for and against the Objection raised herein above against the case at hand. The issue for determination is whether the same has merits or not. For the res subjudice rule to apply, there must be a pending case before a Court or Tribunal of competent jurisdiction to try it and that a subsequent case involving the same parties, reliefs and subject matter has been preferred in another Court. This is according to the provisions of section 8 of the Civil Procedure Code, Cap 33 R.E 2019, which provides; - 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." On record I have the counter affidavit of the first respondent. At paragraph 13 of the same, it is stated that, there is another pending case involving the applicant and the first respondent over the same subject matter before Hon Rugarabamu, learned Chairperson of the District land and Housing Tribunal for Temeke. And further at paragraph 14 of the same counter affidavit, it is stated that, there is already a restrained Order, issued by Hon Rugarabamu in Misc Land Application No. 55 of 2024, restricting any person to evict the applicant until the final determination of Land Application No. 48 of 2024. Further to that, there are copies of the counter affidavit for Misc. Application 3 No.55 of 2024 and a Written Statement of Defence for Land Application No. 48 of 2024, appended as annexure LHA-3. Based on these facts, it is without doubt that, the case at hand cannot be entertained by this Court as there is another case pending before another Court, involving the same person, save for the addition of the second to fifth respondents herein above. Moreover, the reliefs and subject matter of the pending case at the Tribunal is the same to the ones in this Application. Hence, this

Application is incompetent as it is res subjudice, being brought by the same person who is trying present his case in different jurisdictions. Having so observed, it is my settled view that, the Application at hand is cannot stand as it is res subjudice. Therefore, I find the Objection to have merits and the same is sustained In the event, I Order the instant Application to be struck out. No Order as to costs. It is so Ordered. 05/09/2024 4