Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 21854 OF 2024 (Originating From Application No. 313/2017, Kinondoni District Land and Housing Tribunal) ADAM MSELEM............................. APPELLANT VERSUS JULIUS LUGAZIYA......................................................... 1$t RESPONDENT NICKSONSHOO................................................................................................... 2ndRESPONDE MARTIN MAUNDA........................................................................ 3rd RESPONDENT JUDGMENT 16th to 22nd October, 2024 E.B. LU VAN DA, J The Appellant named above is aggrieved by the decision of the Tribunal which ruled that the suit filing at the Tribunal was res-judicata. In the memorandum of appeal, the Appellant grounded that: One, the Chairperson erred in law and fact by holding that the application is re-judicata\ Two, the trial Chairperson erred in law and fact in dismissing the application without determining the issue of ownership. Ms. Hosiana Fabian learned Counsel for Appellant submitted that the law is settled on the applicability of the principle of res-judicata, citing section 9 Civil Procedure Code, Cap 33 R.E. 2019, Felcian Credo Simwela vs QuamaraMassod Battezy and Another, DC Civil Appeal No. 10 of 2020 HC, i Gerald Chunchuwa vs Itaga Seminar [2002] TLR 2012. She submitted that parties in Application No. 508 of 2005 were Nickson Shoo and Sixteen Others vs Cobinita Thomas Naivasha, Protas Athanas Simtanda and Hamis Ramadhani Pora, the Appellant being among the seventeen applicants, whereas in the instant matter parties are Adam Mselem vs Julius Lugaziya, Nickson Shoo andMartine Maunda. He submitted that the Respondents in the former application were different from those in the current matter, arguing it make the principle of res-judcata inapplicable. For ground number two, the learned Counsel submitted that in both applications there is no decision that determined the issue of ownership of the disputed land. He submitted that the matter before the Tribunal was never heard on merit, arguing that the dismissal order was not proper, arguing in principle the matter is subject to dismissal after the parties have been heard on merits, citing Theobard Boniphace Thahikao vs Elias Kashagama, Land Appeal No. 36 of 2022, HC. She submitted that in the instant matter the issue framed was who is the rightful owner of the suit premises, which according to him would have been determined if parties were afforded a chance to put forward their evidence. She submitted that it is settled principle that a finding or decision on the issue framed must be stated in the judgment, citing Sheikh Ahmed Said vs Registered Trusteed of Manyema Masjad [2005] TLR 61. 2 In reply, Dr Julius Rugazia learned Counsel for Respondents, on ground number one, the learned Counsel submitted that in Application No. 508 of 2005 the Second Respondent was the First Applicant and the Appellant was the Nineth Applicant, arguing they were part of several other residents of Kilungule Street in Bunju "A" who had applied for to be declared the rightful owners of the suit land which the Appellant claim that it belong to him. He submitted that this matter is in respect of the same piece of land that the Appellant together with other residents of Kilungule Street, Bunju "A" had come to seek orders regarding ownership vide Application No. 508 of 2005, which was dismissed on 30/03/2009 for want of prosecution, after staying for four years. He submitted that the First and Third Respondents are privies, citing Mulla Code of the Civil Procedure, page 77. For ground number two, the learned Counsel submitted that having determined the suit to be res-judicata, there was no business going into other matters, citing Order XIV rule 2 Cap 33 (supra), Ally Rashid and 534 Others vs Permanent Secretary, Ministry of Industry and Trade and Another, Civil Appeal no. 71 of 2018, for proposition that where the issues of law and fact arise in the same suit, legal issues must be determined first. As discerned from the arguments of both parties, there is no dispute that the subject matter in the former suit and the instant matter is the same land located 3 at Bunju "A" Kilungule Street, Kinondoni Municipality, Dar es Salaam. The only glaring question is whether parties are the same. The learned Counsel for Appellant submitted the view that the principle of res- judcata is inapplicable, for explanation that parties in Application No. 508 of 2005 were Nickson Shoo and Sixteen Others vs Cobinita Thomas Naivasha, Protas Athanas Simtanda and Hamis Ramadhani Pora, the Appellant being among the seventeen applicants, whereas in the instant matter parties are Adam Mselem vs Julius Lugaziya, Nickson Shoo and Martine Maunda. He submitted that Respondents in the former application were different from those in the current matter. On the other hand, the learned Counsel for Respondents was of the view that in Application No. 508 of 2005 the Second Respondent was the First Applicant and the Appellant was the Nineth Applicant, arguing they were part of several other residents of Kilungule Stree in Bunju "A" who had applied for to be declared the rightful owners of the suit land which the Appellant claim that it belong to him. From the above argumentations, it is undeniable fact that the Appellant herein was among the seventeen applicants who sued in the previous matter to wit Application No. 508 of 2005. Also, the Second Respondent herein was among the Applicants who sued in the previous suit. 4 The law is clear that for the matter to be re-judicata, parties in the former and current suit, should either be the same or between parties under whom they or any of them claim litigating under the same title. For brevity, I reproduce the provision of section 9 Cap 33 (supra), I bold a pertinent portion, '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' Herein the Appellant was among the claimants in Application No. 508 of 2005, where its name features as the Nineth Applicant. Similarly, the Second Respondent herein his name features as the First Applicant in Application No. 508 of 2005. Literally it can be said that parties herein are competing over the same subject matter. Therefore, the instant matter can be termed as constructive res-judicata to Application No. 508 of 2005. For ground number two, I go along the argument of the learned Counsel for Respondent that having ruled the matter to be res-judicata, the learned Chairperson was incapable of delving into determining the merit of the docket 5 or framed issue if any. This because a plea of res-judicata once established, it takes away the jurisdiction of the Tribunal. Above all, going by the records of the Tribunal, there is no any issue which was framed or agreed upon. Therefore, the argument of the learned Counsel for Appellant that issue was framed as to who is the rightful owner of the suit premises, is misleading. In that regard, the decision of the Tribunal is upheld. The appeal is dismissed. Given the situation and circumstances of the matter, it is desirable for^ach one to foot own costs. JUDGE 22^10/2024 Judgment delivered in the presence of First, Second, Third Respondents and Ms. Hosiana Fabian learned Counsel for Appellant. R.E:. K^ngwa DEPUTY REGISTRAR 22/10/2024 6