20190531 TZHC Dar es Salaam

. . IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ' (DAR ES SALAAM DISTRICT REGISTRY) i·. . . AT DAR ES SALAAM ·,·.- LAND CASE NO. 24 OF 2015 0 \i ZEIN ENTERPRISES COMPANY LIMITED ........................................ PLAINTIFF VERSUS INTERNATIONAL COMERCIAL BANK (TANZANIA) LIMITED .............................................. ~ ............. DEFENDANT RULING Date of last Order. ........ ... 12/3/2019 Date of Ruling................. .31/05/2019 MLYAMBINA, l. The Plaintiff is a limited liability company incorporated in Tanzania under The Companies Act Cap 212, R.E 2002. The Defendant. is a body corporate carrying on business in Dar es Salaam as a Bank. In this suit the Plaintiff prayed for judgment ·and decree ·against the Defendant as follows: a) A declaration that the Defendant is in breach of the contract of sale of Plot No. 1261/2, Plot No. 1259 and Plot No. 1260, Tandale Area, Dar es Salaam City held under Title No. 49483. b) An order for specific performance of the contract of sale of Plot No. 1261/2, Plot No. 1259 and Plot No. 1260 in Tandale Area, Dar es Salaam City held under title No. 49483 by: a. Delivering to the Plaintiff vacant possession of the suit property; and 1 b. Discharging the mortgage under which the sale of the suit property was conducted register in the Register of Title as filed document No. 96445 dated 3rd May, 2004 and to notify the Plaintiff accordingly. c) An order for payment of the sum of Tshs. 10,240,000/= (Tanzanian Shillings Ten Million Two Hundred Forty Thousand only) being special damages as prayed at paragraph 4 herein above. d) An order for payment of special damages in the sum of Tshs. 181,833,333/= (Tanzanian Shillings One Hundred Eighty One Million Eight Hundred Thirty Three Thousand Three Hundred Thirty Three only) being compensation for loss of mesne profits as prayed at paragraph 5 herein above. e) Interest on the sum at items 3 and 4 above at the rate of 18% per annum from the date of this plant to the date of judgment. f) An order for compensation for loss of mesne profits at the rate of Tshs. 2,500,000/= (Tanzanian Shillings Two Million Five Hundred Thousand only) per month form the date of this plaint to the date of delivery of vacant possession of Plot No. 1261/2, Plot No. 1259 and Plot No. 1260, Tandale Area, Dar es Salaam City held under title No. 49483 to the Plaintiff. g) Interest on the decretal sum at court rate from date of judgment to date of settlement in fu 11. 2 h) The Defendant be ordered to pay costs of this suit. i) Any other relief(s) this Honourable court may deem fit and just to grant. When the matter came for hearing on 12th November, 2018 learned · Counsel Rwekamwa, on behalf of learned Counsel Ishengoma raised a point; that there was a Land Case No. 85/2009 in which the mortgagor who is the owner of the property one Agir Islam was suing TCB Bank (The Defendant in this case) and Erick Auction Mart and Court Brokers. That, one of the issues in Land Case No. 85/2009 was; whether there was sale of the Plaintiff's property by Public Auction. The auction which the Plaintiff in this case emerged the winner. Justice Mkuye (as she then was) held that there was no Public Auction and ordered the status quo be maintained. The Defendant (ICB) was aggrieved with such decision; Counsel Rwekamwa did tell the Court further that they filed leave to appeal against such decision. It was before her Ladyship Kerefu (as she then was). Counsel Rwekamwa did tell the Court that one of the relief (s) sought was to deliver to the Plaintiff vacant possession of the suit property to the Plaintiff. In view of Counsel Rwekamwa, it is the same court which has ordered the status quo be maintained. It was their prayer, therefore, that either the matter be struck out because it has substantially been determined in land case No. 85/2009 or be stayed pending determination of the matter before the Court of Appeal. 3 In reply, Counsel Njama admitted to the facts raised by Rwekamwa advocate but he was of the opinion that, since the Plaintiff was not a Party in Land Case No. 85/2009 that decision does not apply to the Plaintiff. But given the fact that the decision affects the property in issue, Counsel Njama prayed to amend their plaint in order to include an alternative pleading based either in misrepresentation or breach of contract of sale on account that the Defendant admitted to had sold the property without complying to laid down procedures. It was the submission of Counsel Njama that, if they are allowed to amend their plaint, they will make their plaint properly to account the new circumstances. The prayer by Counsel Njama was backed up with two reasons: First, his client is not a party to that case: Secondly, the appeal itself has not taken off. In rejoinder made on 30 th March, 2019 Counsel Tumaini on behalf of the Defendant had no objection for the Plaintiff been allowed to amend the plaint. I have carefully considered the submissions of both parties and went thoroughly through the pleadings. In essence I must say that the point raised by Ishengoma Advocate is a legal issue pegged under Section 8 of the Civil Procedure Code Cap 33 {R.E 2002). It is all about res sub Judice principle. So, at any stake of reasoning it cannot 4 be pre-empted with a prayer to amend the plaint. The concept of res svbjudice is provided under Section 8 of the Civil Procedure Code (supra). Section 8 of the Civil Procedure Code (supra) prohibits a court to proceed with the trial of any suit in which: 1. The matter in issue in the second suit is also directly and substantially in issue in the first suit; 2. The parties in the second suit are the same or parties under whom they or any of them claim litigating under the same title; 3. The Court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit; and 4. The previously instituted suit is pending. The object of the principle of res subjudice is to avoid conflict of judicial decisions by preventing courts of concurrent jurisdiction from simultaneously adjudicating upon two or more parallel suits in which the matter in issue is substantially the same. Also, to avoid conflicting decisions over the same matter involving the same parties. The other aim of this provision is to avoid multiplicity of suits. In this matter, there is no dispute that this Honourable Court has not finally decided the issues concerning leave to appeal to the Court of Appeal against the decision of this Court in land case No. 85/2009. It is also not in dispute that the issues in in land case No. 85/2009 are directly and substantially the issues that will arise in this suit save that 5 the Plaintiff herein was not made a party. But the parties therein are litigating over the same subject matter which was purchased by the Plaintiff in this case during auction. It follows therefore, in land case No. 85/2009, the Defendant in this case is litigating for its interest and interest of the Plaintiff herein. As such, this suit may lead to the conclusion of res subjudice. The question I have asked myself is; what is the effect of such previous suit vis-a-vis this subsequent suit? Is it legally proper for the Plaintiff in this suit to lodge a suit against the same party and claim on the same title and under the same cause of action? Will it not cause conflicting decision? I'm of settled view that the Plaintiff can claim against the Defendant for refund of purchase consideration and other relief(s) subsequent thereto but not in respect of the claims herein. Indeed, a proper suit can be preferred afresh but not to amend the plaint after the objection has been raised. In the premises of the foregoing, the objection is upheld. The suit stands struck out for been res subjudice with the application for leave to appeal to the Court of Appeal in respect of the decision in land case No. 85/2009. Costs shall follow events . . MLYAMBINA GE 31/05/2019 6 Dated and delivered this 31 st day of May, 2019 in the presence of - learned Counsel Tumain Mi_chael for the Defendant, also Tumaini Michael holding brief of Counsel Yahaya Njama. LYAMBI 31/05/2019 7 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA {DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 64 OF 2015 YUSUPH SAID GUZO as a legal representative of ALLY SAID GUZO {deceased) and ABDUL ALLY GUZO ..... PLAINTIFF VERSUS . ST DEODATI AMTONI MSAKI ........................................ 1 DEFENDANT FATUMA LOSINDILO KIMARO ................................... 2No DEFENDNT GHM INSURANCE BROKER LIMITED ....................... 3Ro DEFENDANT MAXIINSURE {T) LIMITED ....................................... 4TH DEFENDANT RULING Date of last Order: 22/08/2019 Date of Ruling: 16/10/2019 MLYAMBINA, J. This suit has been preferred by Yusuph Said Guzo as a legal representative of Ally Said Guzo ( deceased) and Abdul Ally Guzo. When the matter came for defence hearing (DWl) before me as a successor Judge, I noted anomaly on the face of the pleading and called upon the parties to address the Court on; whether the plaintiffhad leave of the Court to file a representative suit on behalf on the Said Abdul Ally. Counsel Edward Nelson Mwakingwe for the plaintiff admitted that one of the plaintiffs has mistakenly been joined as a co-plaintiff and there is nowhere, he has signed the pleading. • 1 It was the humble submission of counsel Edward Mwakingwe that the defect is curable as it has no massive defects to the issues in _controversy between th_e proper parties in this suit. Counsel Edward Mwakingwe maintained that, under Order I Rule 9 of the Civil Procedure Code Cap 33 (R.E 2002) no suit should be defeated by reason of misjoinder or non-joinder of the parties and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties duly before it. It was the submission of counsel Edward Mwakingwe that Order VI Rule 17 of the Civil Procedure Code allows either party at any stage of the proceedings to alter or amend the pleadings .for the purpose of deter mining the real issue in controversy. In the light of the afore provision of the law and with the overriding objective principle, counsel Edward Mwakingwe prayed to amend his plaint and remove Abdul Ally Guzo so that the remaining party can proceed with the suit. On his part, counsel Abubakary Salim told the Court that since the plaintiff's counsel conceded to the preliminary objection, the suit has to be struck out. 2 Counsel Abubakary submitted that misjoinder and nonjoinder refers to a party who is wrongly joined and nonjoinder of a party who has been not joined to the suit. Counsel Abubakary added that, while it is admitted Ally Said Guzo is deceased, there are no legal reasons whatsoever as to why Yusuph Said Guzo is a legal representative of Abudl Ally Guzo. It was the submission of counsel Abubakary Salim that, at the time of institution of this suit, Abdul Ally Guzo was of majority age. He was not incapacitated anyhow. So, Yusuph Said Guzo would not purport to represent Abdul Ally Guzo before the Court of Law. It was maintained by counsel Abubakary Salim that no amendment of the plaint can be made when the preliminary objection is raised. Most important, in view of counsel Abubakary Salim, one can amend something which is legally before the Court. It was the view of counsel Abubakary that since in the present suit there is no plaint legally so to speak, there cannot be an amendment. The usual consequence for the conceded preliminary objection is to struck out the plaint. Counsel Paul Kibuuka on his part for the 4th defendant joined issues with counsel Abubakary Salim. 3 In the view of the foregoing parties submission, I must state at the outset, that in a number of times this Court, even the Court of Appeal has insisted that it will not torelate the practice of an advocate trying to pre-empty an abjection either by raising objection or trying to rectify the error complained of. That is per Method Kimomogoro v. Board of Trustees TANAPA, Civil Application No. 1 of 2005. The act of the plaintiff counsel praying to amend the plaint ought to have been made prior the preliminary objection been raised by the Court. Indeed, the plaint is signed by the plaintiff advocate and the plaintiff it is not known whether it is the 1st plaintiff or the second plaintiff. The same plaint is verified by Yusuph Said Guzo as a close relative (uncle) of the beneficiary's family. It is not put specifically as to who are those beneficiaries as between the plaintiffs. I do agree with the defendants counsel the point of overriding objective principle as crafted in Yakobo Magoiga Gichere v. Peninah Yusuph, Civil Appeal No. 55 of 2017 do not apply in this case. The same applies for misjoinder and nonjoinder of parties as ailed under Order 1 Rule 9 of the Civil Procedure Code (supra) do not apply to illegal suit like the present one. 4 I In the end, the suit is hereby marked -struck out with costs for the anomaly on the face of the plaint pointed out. It is so ordered. Y. . MYAMBINA UDGE 16/1 Ruling delivered and dated this 17th day of October, 2019 in the presence of the 1st Plaintiff in person and Tesiel Kikoti holding brief of Abubakary Salim Advocate for the 2nd Defendant. The rest been absent. MYAMBINA DGE 16/10 5