alesinde traeli mushi vs samweli indandumi 2005 tzhc 284 23 august 2005

alesinde traeli mushi vs samweli indandumi 2005 tzhc 284 23 august 2005

The Appellant failed to establish res judicata as no prior judgment between the same parties on the same issue was produced; the 1958 case was criminal and involved a different party. Katibu Kata proceedings were not judicial and could not render the matter sub judice. The trial court visited the land, took measurements, and found the Appellant trespassed. The Respondent proved his case on the balance of probabilities. There was no basis for a retrial or further investigation. The appeal was dismissed with costs.

Citation
alesinde traeli mushi vs samweli indandumi 2005 tzhc 284 23 august 2005
Parties
Appellant: Alexandri Traweli Mushi; Respondent: Samweli Kindandum
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
23 August 2005
Procedural Posture
Civil Appeal / Second Appeal From District Court to High Court
Outcome
Appeal dismissed with costs
Legal Topics
Appeals, Res Judicata, Land Disputes, Procedural Law
Source Language
English
Civil Law Land Law Appeals Res Judicata Land Disputes Procedural Law

Case Brief

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Parties

Alexandri Traweli Mushi

Appellant

Samweli Kindandum

Respondent

Procedural Posture

Civil Appeal / Second Appeal From District Court to High Court

Legal Issues

  1. 1 Whether the case was res judicata and/or sub judice due to prior proceedings in 1958 and 1975
  2. 2 Whether the first appellate magistrate's judgment disclosed points of law or findings justifying dismissal
  3. 3 Whether the trial court visited the locus in quo and whether its findings were just

Ratio Decidendi

The Appellant failed to establish res judicata as no prior judgment between the same parties on the same issue was produced; the 1958 case was criminal and involved a different party. Katibu Kata proceedings were not judicial and could not render the matter sub judice. The trial court visited the land, took measurements, and found the Appellant trespassed. The Respondent proved his case on the balance of probabilities. There was no basis for a retrial or further investigation. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs

Orders

  • Decisions of the two lower courts upheld
  • Appellant to pay costs in this court and the courts below