Land Appeal No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 18542 OF 2024 (Originating From Application No. 62 of 2023, Kisarawe District Land and Housing Tribunal) ADAM PAUL KIWIA........................................ APPELLANT

VERSUS KEDA (T) CERAMICS COMPANY LIMITED................................... 1ST RESPONDENT KINGREEN CO. LTD..................................................................... 2nd RESPONDENT HNEBOW JAMES BUKUMBI......................................................... 3rd RESPONDENT

JUDGMENT 7th to 15th October, 2024 E.B. LU VAN DA, J This appeal emanates from the ruling of the Tribunal sustaining the preliminary objection by the Second and Third Respondent named above to the effects that the suit was res-judicata to Application No. 130 of 2018 which was resolved under deed of settlement dated 27/02/2018. In the memorandum of appeal, the Appellant grounded that: One, the trial Tribunal erred both in law and fact when concluded, held and uphold preliminary objection raised by the Respondents that, the suit was res-judicata while failed to consider and adhere to its elements enshrined under section 9 of the Civil Procedure Code, Cap 33 R.E. 2019; Two, the trial Tribunal erred in law and fact for failure to distinguish between former trespasser and new trespasser, termed i as the same trespasser, on the reason that it was the same person previously concluded deed of settlement, hence decided by upholding preliminary objection as suit is res judicata', Three, the trial Tribunal erred in law and fact for failure to observe, make analysis and follow established facts and applicable law in relation to evidence adduced by the Appellant as distinguishable evidence adduced by the Respondent. For ground number one, Mr. Mngumi Samadani Sued learned Counsel for the Appellant submitted that during hearing at the Tribunal as well as on the ruling, the Tribunal

misconceived evidence adduced by the Appellant hence made an error by upholding a preliminary objection. He cited the case of Ester Ignas Luambano vs Adriano Gedam Kipalile, Civil Appeal No. 91 of 2014, CAT, regarding elements of res-judicata. He submitted that the Appellant is owning nine acres on Plot No. 10 Sanze Village Kisarawe. He submitted that previously the Respondents trespassed 1.5 cares while this time they trespassed an area of 3.5 acres, argued that the matter in 2018 is not directly and substantially the same with this suit. He submitted that parties in the recent matter are three in additional of the Third Respondent while in the former suit only the First and Second Respondents were sued. He submitted that the matter between the First, Second and Third Respondent have never been decided by any competent body, argued that the Respondents are required to prove the same by bringing 2 copy of judgment to justify their claim. He submitted that the Tribunal did not consider the above arguments, and invited this Court to give direction regarding the argument that the Tribunal departed to consider evidence marshaled clearly on the Appellant's submission. In reply, Mr. Adrian Mhina learned Counsel for Respondents prefaced his argument by citing paragraph 9(v) to the application filed by the Appellant at the Tribunal, along a deed of settlement attached thereto. He

submitted that there is no dispute that the deed of settlement is a consent judgment and determine a matter to its finality. He submitted that at the Tribunal the Appellant stated that the previous case was between him and the First along Second Respondent on the same cause of action. He cited section 9 Cap 33 (supra). He submitted that Application No. 62 of 2023 was res-judicata to Application No. 130 of 2018, argued the appeal should be dismissed. He submitted that the Appellant does not dispute that the disputed land is the same used to be claimed on the previous matter, only that the Third Respondent was not a party during the previous case. He cited Ester Ignas Luambano (supra), for a proposition that it put very clear that the former suit must have been between the same parties or privies claiming under them. He submitted that the Third Respondent have an interest to the land on dispute, arguing the matter was res judicata. 3 On rejoinder, the learned Counsel for Appellant submitted that this is a new trespass after the Respondents trespassed in 2018. He submitted that the size of the land trespassed is different, formerly it was 1.5 acres, this time is 3.5 acres. He cited Ester Luambano (supra) for a proposition that parties must have litigated under the same title in the former suit and parties must be the same. Going by the records of the Tribunal, specifically

paragraph 9(a)(v) of the application, regarding the cause of action, the Appellant pleaded the following facts, 'It is not the first time for Respondents to have trespassed. Records show that, sometimes in 2018,1st and 2nd Respondents did trespass in the same land whereby Applicant having sued for damages, parties agreed to resolve the matter out of Tribunal The alleged deed of settlement filed at the Tribunal on 27/02/2019, was executed between the Appellant, First and Second Respondent herein. At clause four, it was agreed, I quote, 'That, this deed of Settlement shall be filed in this tribunal and be recorded as a decree of the Tribunal and no further claim in respect of this subject matter shall be raised by the Applicant against the Respondents' 4 The argument by the learned Counsel for Appellant that formerly the Respondents trespassed 1.5 acres, this time is 3.5 acres or that the Third Respondent was not a party to the previous suit. To my view, that does not constitute a new cause of action. This is because the Third Respondent herein, is a privy to the First and Second Respondent. This can be evidenced by wording at paragraph 9(a)(iii) of the application filed at the Tribunal, the Appellant pleaded that, 'That, 3rd Respondent's licence is used by the rest of the Respondents to exploit rightful resources from applicant's land unlawfully' In the case of Ester Ignas

Luambano (supra), the apex Court ruled, 'The former suit must have been between the same parties or privies claiming under them' Therefore the Third Respondent is bound by the former suit having been impleaded as privy to the First and Second Respondent herein. The rationale behind is that litigation must come to an end. In the case of Jalibu Mrisho Mwene Milao vs Hon. Attorney General and Others, HC, at page 10 to 11, it was established, I quote, 'The doctrine ofresjudicata bars the applicant to come back to this court for the same issues. It is settled principle in law especially under the Law of Limitation Act, Cap 89 [R.E.2019] specifically sections 3(1) and 14 (1) that there must be an end to litigations. The same holding was in the case of Paniei Lotha 5 i/ Tanaki and Others [2003] TLR 312 that, the object of the Doctrine of res judicata is to bar the multiplicity of suits and guarantee finality to litigation. It makes a conclusive a final judgment between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit' Herein, the Appellant submitted that he is owning nine acres on Plot No. 10 Sanze Village Kisarawe, where previously the Respondents trespassed 1.5 cares while this time they trespassed an area of 3.5 acres. Meaning that the suit property subject for the former trespass is the same forming the

cause of action in the instant matter against the same parties. Therefore the trespass and cause of action committed in 2018, is directly and substantially the same with this suit. In that regard, the appeal is unmerited. The decision of the Tribunal is uphold. Therefore, this appeal is dismissed on its entirety. The Appellant is ordered to defray all costs for this appeal. 6 Judgment delivered in the presence of Mr. Adrian Mhina learned Counsel for Respondents also holding brief for Mr. Mngumi Samadani Sued learned Counsel for the Appellant. 7