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IN THE HIG COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO PC CIVIL APPEAL NO. 3154 OF 2024 (originating from civil case NO.80 of 2022 AND ARISING FROM CIVIL APPEAL NO. 26 OF 2023 AT KILOMBERO DISTRICT COURT). ALLEN JOHN MALEKEA APPELLANT VERSUS TUMAINI ELISHA NNKO RESPONDENT Date of Last Order: 08.10.2024 Date of Judgement: 25.10.2024 JUDGEMENT MAGOIGA,J. The dispute between parties herein has unfortunate checkered history. It started with tenancy relationship in 2013, then, buying of the house in dispute in 2013 and, then, refund of the purchase price in 2022. The facts of this appeal, and in particular, on this unfortunate checkered history of the last part are imperative for better understanding the gist of this appeal. In 2013, the respondent rented the disputed house to the appellant for Tshs.200,000/- per month and the appellant paid up rent for six months to the tune of Tshs.1,200,000/-. While the tenancy contract subsists, parties herein changed their mind and on 05/03/2013 entered into purchase agreement of the disputed house for Tshs.47,000,000/- whereby on that date, the appellant paid Tshs.20,000,000/- to the respondent as part payment of the total purchase price and that the remaining balance of Tshs.27,000,000/-was to be paid on 30/11/2013. Further facts are that Flaviana Njalamoto (not in this appeal) who is the wife of the respondent successfuliy instituted before this court Land Case No. 59 of 2013 against the appeliant and respondent and this court on 31^ day of March, 2017, among others, declared the alleged sale ineffectual, null and void, the appellant herein was ordered to vacate the disputed house, reimburse Fiavian Njaiamoto Tshs.10,000,000/- being value of destroyed properties and pay monthly rent of Tshs.200,000/- per month from 2"^ October, 2013 to the date of giving vacant possession and costs of the case be borne by the parties herein. The record of appeal shows, no appeal was preferred against this Court's decision. Further facts went on that in 2022, the appeilant successfully instituted at Ifakara urban primary court Civil Case No. 81 of 2022 against the respondent for payment of the down purchase price Tshs.20,000,000/- paid to him in 2013 and payment of Tshs.500,000/- being generai damages. Aggrieved with the decision of Ifakara urban Primary Court, the respondent successfully appealed to the district court of Kilombero which hold that much as the contract in dispute which declared the sale agreement as Ineffective, null and void by the High Court, it cannot be a basis of the trial court to declare the repayment of the money in dispute and general damages as ordered by the trial court. The district allowed the appeal with no order as to costs. Daunted by the district court decision (first appellate court), the appellant preferred this appeal armed with three grounds of appeal couched in the following language, namely: 1. The honourable Magistrate erred in law and fact by quashing the decision of Ifakara urban Primary court while the respondent admitted specifically to receive Tshs.20,000,000/- of which there was no dispute on the said transaction; 2. That the trial court magistrate erred In law and fact by contaminating different cases of which the Land Case No.59 of2013 was concerning the ssid sale ofthe house located atIfakara, Mbasa village, KIbaonI of which hisjudgement he provided that while the saidsale was nullified by the High CourtJudgement, the respondent herein Is not entitled to refund the appellant the said Installment on the ground that he was a mere tenant to that house In dispute; 3. That the honourable magistrate erred In law and fact by Ignoring the submission made by the counselfor the appellant herein hence, the result of unfair decision. On the above grounds, the appellant prayed to this court to allow this appeal, quash the decision of the district court in Civil Appeal No. 26 of 2023 with costs. When this appeal was called on for hearing, the appellant appeared in person and the respondent as well. They prayed the appeal be argued by way of written submissions. I granted the prayer. The appellant filed his submission in time but he never served the same to the respondent who has always been reported sick. On 08/10/2024 the respondent appeared in person and complained of not being served. I ordered to be served and consequently extended time for him to file a reply. He complied with the order. Before going into the arguments by parties, it is imperative to note that, in Land Case No. 59 of 2013 which has serious bearing to this dispute, the appellant was ordered to vacate the dispute house and was ordered to pay Tshs.200,000/- per month from 2"^ October, 2013 to the date of giving vacant possession. It is not in dispute and the record is loud that the appellant is still in the dispute house from 2013 to date as such a tenant whose rent accumulates on every month. And this being a decision of this court, I have no power to put a word on that decision. With that in mind, and back to the instant appeal, the appellant in the first ground of appeal argued that no dispute that the respondent received Tshs.20,000,000/- as such it was misdirection by the first appeiiate court to quash the decision of the primary court. According to the appeiiant, the respondent cannot as such hide to the judgement of the district court from paying the money in dispute. The respondent on the other hand argued that much as the appeiiant had stayed in the disputed house without payment of rent, then, he is not entitled to any payment and as such the first appeiiate court was justified in its holding. Having carefully considered the rivalling arguments for and against in this ground of appeal, indeed and unfortunate to the appeiiant, as already noted above, the appellant's rights, if any, were extinguished by the decision in Land Case No.59 of 2013 which declared him tenant subject to paying Tshs.200,000/- per month as his claim on Tshs.20,000,000/- whiie he has stayed in the disputed house for more than 11 years cannot stand. That said and done, the appellant's claims of the refund stand to fail and the first ground of appeal is hereby found wanting on merits, hence, dismissed. On the second ground of appeal, the appeiiant referred to the trial court but I guess he meant first appeiiate court it confused between the decision in Land Case No.59 of 2013 and Civil Case No. 80 of 2022. According to the appellant, these two cases are different and have different cause of action, hence, the first appellate court was wrong to relate them. It was, thus, his submissions that despite sale nullified, still the appellant is entitled to refund of the money. The appellant urged this court to find merits in this ground. On the other, the respondent argued in reply by two limbs; one,that he was not ordered to refund the money as he was not at fault of what happened, and two, the trial magistrate entertained a landed matter which he had no jurisdiction. In the second limb he cited the case of Abdul Rahim Shadhili as guardian of Miss Fatuma A.R. Shadili Vs. Mandhar Govind Raykar, Civil Appeal No. 296 of 2004 (HC) (unreported). Having carefully considered the rivaling arguments on this ground and having noted that in Land Case No. 59 of 2013 the appellant was declared a mere tenant and ordered to pay the monthly rent as agreed of Tshs.200,000/-, his rights as accrued from the sale agreement which was declared null and void on that transaction were equally extinguished unless overturned by the higher court in hierarchy. This is not the case here. In other words, regards being that the High Court decision, becomes binding and res judicata against all parties therein. That said and done, I find the second ground wanting in merits of this appeal and same is hereby dismissed as well. This trickles down to the third ground of appeal in which the main complaint was that the first appellate court ignored the submissions by the appellant's counsel and as such arrived at unfair decision. On the other hand, the respondent resisted this line of arguments. According to the respondent, the first appellate court considered all arguments and decided based on strong evidence from each party. In support of this cited the case of Hemed Said Vs. Mohamed Mbilu [1984] TLR 113 in which it was held that parties' whose evidence is heavier must win the case. Having heard the rivaling arguments and revisited the trial court records, I find this ground of appeal devoid of any useful merits because at pages 4 down to pages 11 the first trial court considered all parties arguments and came to its conclusion. This ground has to fail. It is equally dismissed. That said and done, this appeal is found to have no merits and consequently is hereby dismissed with no order as to costs given the parties long legal battle that needs to end. It is so ordered. Dated at Morogoro this 25^^ day of October, 2024. n t LJJ L s MAGOIGA JUDGE 25/10/2024 COURT: Judgement delivered today at Morogoro before Hassan Salum Hassan, learned advocate for the appellant and the respondent present in person. /■^'"X' A, X '-f - C Wr'V "iv S. M. MAGOl&A JUDGE 25/10/2024 COURT: Righf^ptappeal fully explained.. CT telKfl li' t-' -1- i j s lAG IG JUDGE 25/10/2024