Angelina Jonas vs Marick Hussein Tibimale

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA LAND APPEAL NO. 4338 OF 2024 (Arising from Application No. 57 of2023 District Land and Housing Tribunal for Muieba) ANGELINA JONAS MUSI KA....................................................... APPELLANT VERSUS MARICK HUSSEIN TIBABIMALE.................. ........ .............. . RESPONDENT JUDGMENT 19th and 29th November, 2024 BANZI, J.: The appellant, Angelina Jonas Musika, has appealed to this Court against the decision of the District Land and Housing Tribunal for Muieba (the trial tribunal) where her application was dismissed for being res- judicata. Before the tribunal, the appellant claimed to be a lawful owner of the land situated at Nyarubanja B hamlet, Kimbugu village within Muieba District (the suit land). It was also her claim that, the suit land was acquired by joint effort between her and her husband, hence the suit land is the matrimonial property that they have been occupying for more than 30 years uninterruptedly. She further contended that, on 06/04/2023 the respondent Page 1 of 11 exceeded his boundaries and trespassed into the suit land claiming that, he was executing the decision from the case between him (the respondent) and the appellant's husband while she was not aware of that case. On that basis, she prayed for the tribunal to declare her the lawful owner of the suit land and issue order restraining the respondent from trespassing into that land. After being served with the application, apart from denying the claim, the respondent raised a preliminary objection on three points thus; one, the application was res-judicata to Civil Case No. 15/2012 before Katoke Ward Tribunal, two, there was non-joinder of her husband and three, the applicant failed to establish cause of action. In his submission, the respondent contended that the suit land was already litigated between him and the appellant's husband vide Civil Case No. 15/2012 and the respondent was declared the lawful owner of that land. He contended that, sometimes later, he filed execution proceedings in Application No. 95 of 2022 and he was handed over the suit land. Therefore, filing application over the same land that was already litigated between him and the applicant's husband, amounted to res-judicata. He cited the case of Gerald Chuchuba v. Rector Itaga Seminary [2002] TLR 212 to support his submission. According to him, that was abuse of the court process. Page 2 of 11 In reply, the appellant disputed the contention raised stating that, there was no any suit instituted and determined by the competent tribunal between her and the respondent over the land in dispute, hence that was raised as a tactic to delay justice. After receiving submissions of both parties, in his verdict, the Chairman found that, Application No. 57 of 2023 was res judicata to Civil Case No. 15 of 2012 whose execution was done through Execution Application No. 95 of 2022. The appellant was not pleased with the findings of the trial tribunal, hence this appeal containing three grounds thus: 1. That the Trial Chairman erred in law to rule that land Application No. 57/2023 was res-judicata to Civil Case No. 15/2012 at Katoke Ward Tribunal. 2. That the Trial Chairman erred in law to uphold the Respondent's preliminary objection without taking into consideration required standard of a preliminary point of objection in law. 3. That the Trial Chairman erred in law and facts coming to the decision that Land Application No. 57/2023 was res-judicata to Civil Case No. 15/2012 at Katoke Ward Tribunal without taking into consideration the Appellant's pleading and submissions. Page 3 of 11 At the hearing, both parties appeared in person, unrepresented. In her brief submission, the appellant contended that, she had never been a party in Civil Case No. 12 of 2012 at Katoke Ward Tribunal. Apart from that, she had never been heard by any tribunal against the respondent and this is her first case against him. Also, the land subject matter to Application No. 57 of 2023 is different from the land subject matter to Civil Case No. 15 of 2012 as the land in Application No. 57 of 2023 was acquired by way of purchase while the land in Civil Case No. 15 of 2012 is the clan land. It was in the course of execution of Civil Case No. 15 of 2012 when the respondent trespassed into her land as the two lands border each other. In the circumstance, Application No. 57 of 2023 is not res judicata to Civil Case No. 15 of 2012. It was further her submission that, the chairman did not consider her pleadings and submissions. Had he considered them, he would not have reached into that decision. She therefore prayed for the appeal to be allowed with costs by setting aside the dismissal order and restoring Land Application No. 57 of 2023 for it to be heard to its finality. In response, the respondent contended that, the land in Civil Case No. 15 of 2012 is one and the same as the land subject matter in Application No. 57 of 2023. Therefore, it was proper for the trial tribunal to term Application No. 57 of 2023 as res-judicata. He further contended that, Civil Case No. 15 Page 4 of 11 of 2012 was between him and Jonas Musika who is the appellant's husband and it was Jonas Musika who had sued him before Katoke Ward Tribunal. He won that case though he did not execute the judgment until when the appellant trespassed into his land. Execution was conducted by putting the boundaries which were uprooted by the appellant. He finally prayed for the appeal to be dismissed with costs. In her brief rejoinder, the appellant insisted that, the land in Application No. 57 of 2023 is different from land in Civil Case No. 15 of 2012, though two lands are bordering each other and each land has its different neighbours. The suit land is her own property and it was not among the properties that were distributed between Jonas Musika and her during the divorce process. Having considered the submissions for and against the appeal and the record of the trial tribunal, the issue for determination is whether, the appeal has merit. Section 9 of Civil Procedure Code [Cap. 33 R.E. 2019] (the CPC) provides that: "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 Page 5 of 11 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." The above cited provision was interpreted in the case of Peniel Lotta vs Gabriel Tanaki and Two Others [2003] TLR 312 where the Court of Appeal outlined five conditions which when co-exist, will bar a subsequent suit. The conditions are: "(i) the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; (ii) the former suit must have been between the same parties or privies claiming under them; (Hi) the parties must have litigated under the same title in the former suit; (iv) the Court which decided the former suit must have been competent to try the subsequent suit; and (v) the matter in issue must have been heard and finally decided in the former suit" In respect of the claims where one party was not a party in the former suit the Court went on and stated that: Page 6 of 11 "...a person does not have to be formally enjoined in a suit, but he will be deemed to claim under the person litigating on the basis of a common interest in the subject matter of the suit." Before this court, there was a competing argument; whether the land in Civil Case No. 15 of 2012 before Katoke Ward tribunal is the same as the land in Application No. 57 of 2023 before the trial tribunal. While the appellant contended that, they are two different lands though they border each other, the respondent on his side contended that, the land is the same which, according to him, there is no any other land apart from the land that he litigated with the appellant's husband in 2012 before Katoke Ward Tribunal. Regarding preliminary objection, it is an established principle that, for the matter to be termed as preliminary objection, it must be pure on point of law whose determination does not require facts to be ascertained. See, the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696. Also, in the case of Haji Shomari v. Zainabu Rajabu, Civil Appeal No. 91 of 2001 CAT (unreported), it was stated that: Page 7 of 11 "It is trite law that a preliminary objection on a point oflaw is disposed of on a pure point of law based on ascertained facts. There is no need to call evidence." Also, in another case of Soitsambu Village Council v. Tanzania Breweries Limited and Another (Civil Appeal No. 105 of 2011) [2012] TZCA 255, it was stated that: "A preliminary objection should be free from facts calling for proof or requiring evidence to be adduced for its verification. Where a court needs to investigate facts, such an issue cannot be raised as a preliminary objection on point of law. The court must therefore insist on the adoption of the proper procedure for entertaining applications for preliminary objections. It will treat as preliminary objections only those points that are pure law, unstained by facts or evidence, especially disputed points of fact or evidence." Considering that the parties are arguing against each other on the actual land in dispute, I find it apposite to determine whether the objection raised by the respondent was a point of law that could not require evidence. In the case of Soitsambu Village Council v. Tanzania Breweries Limited and Another {supra), before the High Court, the first respondent raised a preliminary objection that, Land Case No. 2 of 2010 was resjudicata Page 8 of 11 to Civil Case No. 74 of 1987 in the Resident Magistrates Court of Arusha as the suit on the subject matter was conclusively determined between them and the first respondent. On the appeal, the Court stated that: "These are facts that will have to be established by evidence during the trial in the High Court. Then the High Court will be able to determine that the parties in the Resident Magistrates Court, Arusha and in the High Court are the same or privies claiming under them. This cannot be done at the commencement of the trial but at the end." Reverting to the case under scrutiny, the respondent raised an objection that, Application No. 57 of 2023 was res judicata to Civil Case No. 15 of 2012 before Katoke Ward Tribunal. He further contended that, the land was one and the same that he litigated with the appellant's husband. The appellant on her side objected that allegation contending that, the land she is litigating with the respondent is different from the land which the respondent had litigated with her husband. Apart from that, a close look at the pleadings before the trial tribunal reveals that, the neighbours of the suit land mentioned by the appellant in her application are different from the one mentioned in the execution documents attached by the respondent in his written statement of defence. On that basis, it apparent that, in order to determine whether Application No. 57 of 2023 was res judicata to Civil Case Page 9 of 11 No. 15 of 2012, the parties were required to adduce evidence to prove and disprove that allegation. With the nature of the adduced evidence, the trial tribunal would have even required to visit the locus in quo to ascertain whether the land in Civil Case No. 15 of 2012 is the same or different from the land in Application No. 57 of 2023. Therefore, it goes without saying that, considering that there would be need to adduce evidence to prove or disprove the allegation and in line of the cited cases, the raised objection ceases to be a preliminary objection as it required evidence. For the foregoing reasons, it is my finding that, it was improper for the Chairman to term that objection as preliminary objection as it needed evidence which would be determined at the end of hearing as directed in the case of Soitsambu Village Council v. Tanzania Breweries Limited and Another {supra}. Therefore, there was no preliminary objection in the eyes of law whose determination requires evidence. In that regard, I find the appeal with merit and I hereby allow it by quashing the ruling dated 18th January, 2024 which dismissed the appellant's application and setting aside the drawn order. Application No. 57 of 2023 is hereby restored for it to be heard and determined to its finality before Page 10 of 11 another Chairman. Considering that the fault was caused by the tribunal, I make no order as to costs. It is accordingly ordered. I. K. BANZI JUDGE 29/11/2024 Delivered this 29th day of November, 2024 in the presence of the appellant and the respondent both in person, Hon Audax V. Kaizilege, Judge's Law Assistant and Ms. Mwashabani Bundala, RMA. Right of appeal Page 11 of 11