jessey wahyungi vs equibal ebrahim 2022 tzhclandd 241 21 april 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND CASE NO. 165 OF 2021 YESSEH WAHYUNGI (Suing as an Administrator of the estate of the late Alexander Kaluwa Wayungi) ............. . PLAINTIF VERSUS EQUIBAL EBRAHIM.......................................................DE FAN DANT RULING Date of Last Order: 20/04/2022 Date of Ruling: 21/04/2022 DR.T. MWENEGQHA, J: This ruling originated from the Preliminary Point of Objection raised by Capt. Ibrahim Bendara, Advocate for the Defendant that, a) That this Honorable Court has no jurisdiction to entertain this civil case where the plaintiff claims fraud on judgments and decrees issued by subordinate courts; b) The suit is res- judicata for the reasons that all issue concerning land ownership in Plots No. 504 and 504A Ex-Daya Estate Ilala were conducted and determined in two different cases, which are Civil case No. 69A of 1999(District Court of Ilala); and in this Honorable Court as Ex-parte in Land Case No. 81 of 2012; and this Honorable Court has i already recognized validity of both the decrees issued in both cases in Misc. Land Application No. 726 of 2016. Hearing of the Preliminary Objection was conducted by way of written submission whereby submissions were filed as scheduled. In his submission to support the first objection Capt. Bendera relied on paragraph 3 of the plaint, where he stated that the plaintiff wanted this court to nullify Civil Case no. 69A of 1999 of the decision of District Land and Housing Tribunal of Ilala (The Tribunal) and Land Application No. 299 of 2008. It is his submission that this court has no jurisdiction to set aside this decision if the matter has not been brought by way of Appeal, Revision, Review or Reference. Hence, he prayed for this appeal to be dismissed. In reply, Advocate Issac Nassor Tasinga, representing the plaintiff argued that there is no competent Preliminary Objection before this Honorable Court. He reasoned that there is no specific provision of law cited which is alleged to be contravened by the plaintiff. He prayed for them to be dismissed as held in the case of Civil James Burcharg Rugemalila v The Republic & others Criminal Application No. 59/19 CAT Unreported. It was also his stand that defendant inviting this court to look at the plaint to him is equal to inviting this court to look at production of evidence while production of evidence does not need evidence. He acknowledged the existence of the Civil Case no. 69A of 1999 and Land Application No. 299 of 2008 but to him they were not decision in the eyes of law rather they were nullities. He insisted that action of Appeal, Revision, 2 Review or Reference are there only for a valid decision. It is his stand that once decision is perceived to be obtained by fraud it cannot remain with reputation of being called decision but a nullity. He questioned how can one aspire to appeal, revise or review such nullity. He stated that the plaintiffs' concern is to declare the above-named decision nullity on the ground that they were obtained by fraud. I have thoroughly considered submissions of both counsels on the first point of Preliminary Objection, the question here, is whether this court has jurisdiction to determine this suit. From the submission of both counsels, it is clear that the paragraph that gave rise to this Preliminary Objection is paragraph 3 of the plaint which reads that, "The claims against the defendant is for declarations that the judgments and decree in Civil case No. 67A(sic) of1999 of the District Land and Housing Tribunal and Land Application No. 299 of2008 of Haia District Land and Housing Tribunal both were obtained by fraud hence null and void abnitio, and that subsequent decree, ruling and orders emanating from those judgments to be set aside, prohibition of defendant to make any claim of ownership on the Plaintiff's land, the general damages as may be assessed by this court and costs of this suit be borne by the defendant." 3 Looking at the above paragraph it is clear from the outset that the cause of action in this case is that the plaintiff requires this court to nullify the decision of the Tribunal. Under section 7(1) of the Civil Procedure Code, cap 33 R.E clearly stipulates that the High Court has original jurisdiction to deal with civil matters. But looking at the above paragraph this matter is not original. There are two decisions namely of Civil Case no. 69A of 1999 and Land Application No. 299 of 2008 originated from the decision of the Tribunal. This court holds that as long as the matter has been finally determined by Tribunal this court lacks original jurisdiction to determine it. The decision of Tribunal cannot be nullified in this court by filing a fresh suit, it is only by way of Appeal or Revision. I note the argument of Mr. Tasinga that once decision obtained by fraud cannot remain with reputation of being called decision but a nullity thus to him it is puzzling how can one aspire to appeal/ revise or review such nullity. With respect to the counsel, that is not the procedure, so long as a decision have been decided by the competent Tribunal/Court it becomes a court decision and no matter how a part feels on the manner they were obtained, they will still be valid decision until they are set aside by way of Appeal, Review, Reference or Revision. This court cannot step in the said decision as intended by the plaintiff herein and nullify them without being brought properly before the Court. Afterall 4 there is no record of the Tribunal presented before me to refer to, if it was appeal or any application of such nature, I could have all the records. The plaintiff's counsel argued that the Preliminary Objection is not on pure point of law as it attracts evidence. I am of the view that this Preliminary Objection is raised from the pleadings specifically paragraph 3 of the plaint as quoted above. As required in the celebrated case of Mukisa Biscuits Manufacturing Co. L.T.D versus West End Distributors L.T.D (1969) EA 696 which affirmed a Preliminary Objection to have the following tests, "A preliminary objection consists of a point of law which has been pleaded, or which arises by dear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit". Applying the above tests to the current Preliminary Objection it is clear that this objection is fit to be point of Preliminary Objection. Having said that I find the 1st Preliminary Objection to have merit, and I see no need to discuss the second objection as this objection has the effect of dismissing the whole claim. The suit is hereby dismissed for reason that the court has no jurisdiction. With costs. 5