CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: MKUYE. J.A.. KAIRO, J.A. And MDEMU. J. A.^ CIVIL APPEAL NO. 676 OF 2023 AGUSTINO SIMONI MUHINDI................................................... APPELLANT VERSUS HASSAN SALUM KHATIBU....................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dodoma) (Mansoor, J.) Dated the 16th day of April, 2021 in Misc. Land Appeal No, 59 of 2020 JUDGMENT OF THE COURT 21st & 28th March, 2025 MDEMU. J.A.: This third appeal emanates from the decision of the High Court of Tanzania (Mansoor J. as she then was) who decreed in favour of the respondent over a piece of land, thus, compelling the appellant to remove marks fixed as boundaries as was decided by the Kondoa Mjini Ward Tribunal. In the latter Ward Tribunal, the respondent filed a claim registered as Land Application No. 2 of 2020 against the appellant for trespass in a one-acre suit land located at Ture (Mpalangwi) street. The appellant, on the other hand, became discontented thus appealed to Kondoa District Land and Housing Tribunal (the DLHT). The latter, in Land Appeal No. 35 of 2020, dismissed the appeal with costs by upholding the decision of the Ward Tribunal. In its decision, the DLHT held further that there was no conclusive evidence to the effect that the said suit land was once the subject of litigation in courts as to require the application of the doctrine of res judicata which the appellant raised on appeal. The appellant's journey continued to the High Court, faulting the decision of the two tribunals below. As alluded to, the High Court, as was to the DLHT, dismissed the appeal by holding, among other things that, the doctrine of resjudicata would not apply because parties were different and that the evidence that the suit land is the same as was in the previous suit was wanting. Again, the appellant was aggrieved by the findings of the High Court. He filed the following grounds of appeal to this Court upon obtaining a certificate on points of law issued by the High Court: 1. That, the honourable Judge erred in iaw and fact by failure to consider authentic documentary evidence which were not considered. 2. That, the honorable Judge erred in iaw and fact by failure to decide as to whether the land in dispute in this case was already adjudicated by a competent court before the District Land and Housing Tribunal at Kondoa in Land Case No. 57 o f 2016 between Bernadini Paulo and the appellant herein contrary to what was decided by previous courts. 3. That, the honourable Judge erred in law and fact by failing to consider the gaps in the respondent's witness evidence suffices to grant the suit land to the respondent. At the hearing of this appeal on 21st March, 2025, only the appellant entered an appearance in person, unrepresented. The respondent did not enter appearance. According to the information reported by the appellant, N the respondent refused service. This information on refusal is confirmed in the affidavit of the process server dated 3rd March, 2025. On that account, the appellant prayed that the hearing of the appeal should proceed in the absence of the respondent. We acceded to the prayer; accordingly, we made an order to proceed with the hearing of the appeal in terms of rule 112 (2) of the Tanzania Court of Appeal Rules, 2009. When given an opportunity to submit on the grounds of appeal he had filed, the appellant pleaded forgetfulness of the contents thereof due to the English language used and lapse of time, leave alone his old age. What he eventually asked is for the Court to consider the grounds of appeal as contained in his memorandum of appeal he had filed and allow the appeal forthwith by declaring him the lawful owner of the land in dispute. Now, heeding to the appellant's request, in the three grounds of appeal as reproduced above, we find that the second ground of appeal on res judicata suffices to dispose of the entire appeal. However, before we do so, we find it apposite to state the legal position regarding the doctrine of res judicata. It is provided for under section 9 of the Civil Procedure Code, Cap. 33 in the following phraseology: "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 o f 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." This being the legal position, in the second ground of appeal, the appellant's firm conviction is that the suit land was once involved in Land Case No. 57 of 2016, which was before Kondoa DLHT. The appellant in that ground of complaint went ahead to state that, parties to the dispute in that land case were between one Bernadini Paulo and himself. However, this fact arose for the first time in the memorandum of appeal in Land Appeal No. 35 of 2020 coached in the following words as appears at page 26 of the record of appeal, in ground 1: 1. That, the tribunal erred in law and in fact to declare the respondent the owner o f the land in dispute despite the fact that the suit before it was res judicata as the matter directly and substantially in issue has been directly and substantially in Land Case No. 93 o f 2016 before Kondoa Mjini Ward Tribunal and Land Appeal Case No. 57 o f 2016 before this honourable tribunal between the appellant and one Bernadini Paulo (the relative o f the respondent) who was claiming the same land to belong to him. Copies o f the judgment are attached to form part o f this appeal. When resolving the above raised ground of appeal, the DLHT observed the following at page 65 to 66 of the record of appeal: "I have carefully gone through the parties' submissions and the record o f the Ward Tribunal and I have the following observation: as for the first ground o f appeal, the record reveals that the issue o f the case between Bernadini Paulo and the appellant was not discussed at all. At this stage of the appealis a new fact which has no reference from the Ward Tribunal. I am aware o f the issue o f additional evidence to be collected by the tribunal, but the same was not sought by the appellant. Hence, no details can be found from the Ward Tribunal records to see whether the ward tribunal disregarded the facts produced by the appellant." In the foregoing decision of the DLHT, the issue of res judicata was not determined because it was a new issue requiring additional evidence, but the chairperson refrained to do so because the appellant did not move the tribunal to that effect. Be it as it may, our view is that, the DLHT did not determine if the suit land which was the subject of the appeal before it was res judicata to Land Case No. 93 of 2016 before Kondoa Mjini Ward Tribunal and Land Appeal Case No. 57 of 2016 before it between the appellant and one Bernadini Paulo. We also note in the record of appeal from page 110 through page 113 that the High Court dealt at length if the land in dispute was the same claimed to have been decided in the previous case before the two tribunals. In the first place, it concurred with the DLHT that the issue of resjudicata surfaced for the first time in the DLHT during the appeal stage. The learned Judge therefore concluded that, the DLHT was justified to decline the invitation to determine new grounds. Nonetheless, she proceeded to determine it, probably, because it was a legal issue. In the end of her analysis of the evidence as presented in the trial tribunal, the learned Judge concluded at page 112 through 113 of the record of appeal that: "I went through records of the Trial Tribunal, the Ward Tribunal visited the locus in quo, and they found out that the testimony of the respondent's witnesses was true, they were credible witnesses and at that locus in quo there was overwhelming evidence tilting on the part o f the respondent that the land belongs to the respondent, and this is not the land of Bernadini Paulo, the judgment debtor in Land Case No. 57 of 2016' [emphasis supplied] We have gone through the record of appeal and we are entirely at one with the findings of the High Court that the land in dispute, as litigated in Kondoa Mjini Ward Tribunal in Land Case No. 2 of 2020 and later as Land Appeal No. 35 of 2020 before Kondoa DLHT between the appellant and the respondent is not the same land involved in Land Case No. 93 of 2016 before the same Ward Tribunal and Land Appeal Case No. 57 of 2016 before the same DLHT between the appellant and one Bernadini Paulo. We are fortified to hold so because, for the doctrine of res judicata to apply, one of the requirements is for the parties in the former and subsequent suit to be the same. See, for instance, Paniel Lotta v. Gabriel Tanaki and Two Others (Civil Appeal No. 61 of 1999 [2021] TZCA 16 (14 September 2001; TanzLII). Our perusal of the record of appeal at pages 41 and 63 makes it clear to us that, parties in the two suits are not the same. Whereas in Land Case No. 93 of 2016, parties were between Bernadini Paulo and Agustino Muhindi (the appellant), in Land Case No. 2 of 2020 parties were Agustino Simon Muhindi (the appellant) and Hassan Salumu Khatibu. The appellant therefore has failed to establish the existence of this test. Regarding the description of the suit land, the High Court at page 117 of the record of appeal observed that, the land adjudicated in Land Case No. 57 of 2016 had no any description. That is to say, it cannot be the same land measuring one acre which was the subject of adjudication in original Land Case No. 2 of 2020. At page one of the record of appeal, the latter was designated in the claim before the Ward Tribunal as follows: "MAELEZO BINAFSI YA MDAI JINA- HASSANI SALUMU KHATIBU UMRI- MIAKA 64, Dini ISLAMU KABILA- MNDENGEREKO, MAHALI MTAA CHEM CHEM BALOZI- KULUTHUMU MZAMILU Mimi Hassan Salum Khatibu namlalamikia Agustino Mhindi kwa kuvamia eneo langu lililopo mtaa wa Tura (Mpalagwi) lenye ukubwa wa hekali moja (1) na kulitumia kwa shughuli za kilimo bila idhini yangu. Haya ndiyo maelezo yangu." [emphasis supplied] It is our considered view that since the appellant's claim is distinct from that of Bernadini Paulo, we stated in the case of Badugu Ginning Co. Ltd. v. CRDB Bank Pic and Two others (Civil Appeal No. 65 of 2019) [2021] TZCA 158 (3 May 2021; TanzLII) that, the doctrine of res judicata may not apply. This test too has not been proved by the appellant. In the light of what we have demonstrated above, our final conclusion is that, the appellant before us has failed to prove the case on the balance of probabilities required in civil cases. On that note, we have no reason to disagree with the position of three courts below, which we find convincing to uphold it. We proceed to dismiss the appeal on that account with no order as to costs. DATED at DODOMA this 27th day of March, 2025. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 28thday of March, 2025, in the presence of the Appellant in person and absence of the Respondent, is hereby certified as a true copy of the original. /LuiquL A. S. CHiJgULU DEPUTY REGISTRAR COURT OF APPEAL