ABIGAEL Judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 26133 OF 2024 (Arising from District Land and Housing Tribunal for Geita in Application No. 03/2018) ABIGAEL ABDALLAH THOMAS (administratix of estates of the late ABDALLAH THOMAS ………………………..………………. APPELLANT VERSUS AGNESS JAMES ...…………………………………………..………. 1ST RESPONDENT DONATILA PETER ………………….…………...….……………… 2ND RESPONDENT JUDGMENT 18th November & 16th December, 2024 CHUMA, J. The appellant herein is aggrieved by the decision of the District Land and Housing Tribunal for Geita (hereinafter the tribunal) in Application No. 03/2018. Before the tribunal the appellant sued the respondents claiming ownership of land located at Ilunda village of Nyakanyagala hamlet within Sengerema District of Mwanza Region (the suit land). The tribunal dismissed her application and blessed the sale by the 1st respondent to the 2nd respondent herein. The tribunal further declared the 2nd respondent to be the lawful owner of the suit house. Being aggrieved by that decision the appellant filed this appeal pegged on four grounds that: - 1 1. That, the trial Tribunal erred both in law and in facts for delivering the Judgement without involving assessor’s opinions. 2. That, the trial Tribunal erred both in law and in facts for failure to solve the issue in dispute concerning ownership of land between the two families and decided to rely on the issue of Bonafide purchaser which is one sided evidence hence arrived at a wrong decision. 3. That, the trial Tribunal erred both in law and in facts for failure to evaluate evidence on record and decided to rely on the evidence produced by the Appellants only and proceeded to order that they have proved their case while the same was not proved to the standard as required in civil cases. 4. That, as a whole the decision of the trial Tribunal is against the evidence on record and the law applicable. I ordered the appeal be argued by way of written submissions, Mr. Vedastus Laurean learned advocate submitted for the appellant while Ms. Elizabeth Jerome represented the respondents. In the course of submissions, two legal issues were raised by the respondent’s counsel, this appeal was filed out of time and the matter before the Tribunal was resjudicata because the matter had already been heard and determined by Ngoma Ward Tribunal at Sengerema vide Land Application No. 5 of 2017. Those are legal issues that may suffice to dispose of this appeal, I will first consider them. 2 Ms. Elizabeth submitted that the judgement which the appellant appealed against was delivered on 15.9.2023 but, according to the receipt of payment in the court file the appellant lodged this appeal before this court on 16.11.2023 hence it is overdue for 63 days after the judgment. That, under section 41(2) of the Land Disputes Courts Act, Cap 216 R.E.2019 (hereinafter the Act), the appeal needs to be filled within 45 days from the date of judgment. She therefore prayed for the appeal to be dismissed with costs. On the second legal point, she submitted that the matter is resjudicata as well as the abuse of the court process. Section 9 of the Civil Procedure Code (R.E.2019) prohibits the Court/tribunal from trying any suit or issue in which the matter directly and substantially has been determined/heard and finally decided between the same parties and the same title. That, before the tribunal delivered its judgments, the matter was already determined by Ngoma Ward Tribunal at Sengerema, Land Application no. 5 of 2017 in favor of the respondents herein. That, in the year 2017 the decision of the Ward Tribunal was binding. She therefore insisted that this Appeal be dismissed with Costs. In reply to these points, Mr. Laurean submitted that the two new issues have been brought in reply submission. That, raising new issues in 3 submission has been discouraged universally. He made reference to the case of Haystead Vs. Commissioner of Taxation [1920] A.C 155 on page 166, Hotel Travertine Limited & 2 Others Vs. National Bank of Commerce Ltd [2006] TLR 133, and James Funke Gwagilo Vs. The Attorney General [2004] TLR. 161. Nevertheless, he submitted on the first point that, according to section 19 (2) of the Law of Limitation Act, [Cap. 89 R.E. 2019] days spent on obtaining a copy of the decree or order appealed from shall be excluded. That, the decree and proceedings for appeal were received by the appellant on 4th October, 2023, after being informed through a phone by the tribunal clerk that they were ready for collection. Therefore, the period from the 15th day of September, 2023 when the judgement was delivered up to the 4th day of October, 2023 ought to be excluded when computing the said period. Further reference was made to the case of Bukoba Municipal Council Vs. New Metro Merchandise, Civil Appeal No. 374 of 2021 (unreported) Concerning the second legal issue, Mr. Vedastus hasten to admit the same. That, by raising this issue the counsel for the respondents is conceding to the appellant’s appeal that the whole of the proceedings, 4 judgment, and decree of the trial tribunal is tainted with irregularities and or illegalities that cannot be left to stand. However, he went on to submit that, in Land Application No. 03 of 2018 all parties participated fully in the proceedings to its finality but such issue was never raised. That, the counsel for the respondent has attached evidence (a copy of ward tribunal’s judgment) contrary to the principle stated in the case of Mukisa Biscuits Manufacturing Co. Ltd Vs. West End Distributors Ltd [1969] 1 E.A. 696. I have with passion considered the submissions of both parties. I will start with the contention by Mr. Laurean that the points of law have been raised belatedly in the submission in reply. I distance myself from his standing because both points are legal issues that touch on the jurisdiction of the court. In the case of Muse Zongori Kisere Vs. Richard Kisika Mugendi and 2 others, Civil Application No. 244/01 of 2019 the Court of Appeal reemphasized the position stated in the case of Mayira B. Mayira & 4 Others v. Kapunga Rice Project, Civil Appeal No. 359 which held inter alia that; "…where the issue is that the appeal is time-barred it means that the Court cannot entertain it for lack of jurisdiction. Such an issue goes to the core of the determination of the case. For the foregoing 5 reasons/ we decline to accept the invitation to overlook such an issue of jurisdiction...The overriding objective principle is under the circumstances inapplicable...” (emphasis added) The issue resjudicata also touched the jurisdiction of this court therefore in my view, the issues were correctly raised by the respondents at this stage. Back to the raised issues, on the first legal issue, I agree with Mr. Laurean that, time spent awaiting for the copies of judgment and decree are automatically excluded. Section 41(2) of Cap 216, provides for a time frame for filling an appeal to be 45 days, However, according to Order XXXIX Rule 2 of the Civil Procedure Code, Cap 33 R.E. 2019, (the CPC) the appeal needs to be attached with a copy of impugned decision and decree. The legal position is that, when an appeal cannot be filed in the absence of a copy of the impugned judgment and/or decree, the time spent awaiting the copies is excluded. In the case of Gregory Raphael Vs. Pastrory Rwehabula (2005) TLR 99, which was quoted by the Court of Appeal in the case of Sophia Mdee Vs. Andrew Mdee & 3 Others, Civil Appeal No. 5 of 2015 (unreported), this court had the following to say: - 6 "As it can be seen, attachment of a certified copy of judgment is not one of the contents of the petition of appeal as it used to be in appeals originating from District Courts and Courts of Resident Magistrate as is provided under 0.39 rule 1 of the Civil Procedure Code, 1966 which law is not applicable in Primary Courts. Failure to attach memorandum of appeal along with a copy of decree and judgment renders the appeal incompetent. Attachment of copies of decree and judgments is a condition precedent in instituting appeals originating from district courts and courts of resident magistrate." (emphasis added). Likewise, in this matter at hand, the copy of judgment attached to the petition of appeal was certified by the tribunal on 4.10.2023, therefore the counsel for the appellant was correct that times from 15.9.2023 to 4.10.2023 are automatically excluded under section 19(2) of the Law of Limitation Act, (supra) which provides that: - “(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgment, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded” (emphasis added) 7 Being guided by these authorities, the first legal issue is devoid of merit I dismiss it. On the second legal issue, the matter was already determined by the Ngoma Ward Tribunal at Sengerema, Land Application No. 5 of 2017. The counsel for the appellant concedes to this fact and stresses that based on this fact, the trial tribunal proceedings cannot be left to stand. On my part, I had time to read the judgment of Ngoma Ward Tribunal at Sengerema, Land Application No. 5 of 2017 dated 27.12.2017. In that case, the appellant herein sued the 2nd respondent herein. On page 2 of the said judgment, the Ward tribunal noted the evidence of Agness James (the 1st respondent herein) that she was the one who sold the suit land to the 2nd respondent. It was also noted that, on 14.12.2017, the appellant herein registered her prayer before the ward tribunal to withdraw her case. Regardless the ward tribunal proceeded to decide the matter in favor of the respondents herein. The judgment partly reads; “…ndugu Abigael Abdallah Thomas (MDAI) aliamua kusitisha na kuondoa kesi hiyo akaomba kuchukua vielelezo vyake vyote alivyokuwa amevitoa kama ushahidi kwenye baraza la kata….pamoja na mdai Abigael Thomas kuondoa madai yake ushahidi uliotolewa kwa upande wa mdaiwa Donatila Peter 8 unajitosheleza sana hivyo Baraza hili la kata linaamua kuwa Donatila Peter kwa sababau alilipata kwa kununua kwa njia ya halali kabisa na aendelee kulimiliki na kulitumia ni mali yake…” The respondent’s counsel was correct that; this decision of the ward tribunal is still binding. I will not agree with the contention by Mr. Laurean that, the ward tribunal’s judgment is a matter of evidence that cannot be raised in submission because, that judgment is a matter of judicial notice under section 59(1) (d) of Law of Evidence Act, Cap 6 R. E 2022. The trial tribunal had no jurisdiction to determine the matter which was substantially at issue and has been finally determined as between the parties before the ward tribunal. Section 9 of the CPC provides that; “9. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.” (emphasis added) It should be also noted that, although before the ward tribunal only the 2nd respondent was sued, the decision of the ward tribunal binds the 9 1st respondent too because the 2nd respondent claims and delivered her title from the 1st respondent who also appeared and testified before the ward tribunal. In the final analysis, the second raised legal point has merit. Application No. 03/2018 before the District Land and Housing Tribunal for Geita was resjudicata to Land Application No. 5 of 2017 before Ngoma Ward Tribunal at Sengerema. This appeal too cannot stand. I quash the proceedings of the tribunal and set aside all decisions and orders therefrom. I proceed to dismiss this appeal with costs. It is so ordered. DATED at MWANZA this 16th day of December, 2024. W. M. CHUMA JUDGE 10 The judgment delivered in court before the respondents and in absence of the appellant this 16th day of December, 2024. J. MUSAROCHE DEPUTY REGISTRAR 11