20160722 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT MBEYA LAND APPEAL No. 1 OF 2013 (From the Decision of the District Land and Housing Tribunal of Rungwe District at Rungwe In Land Case No. 43 of 2011) AS U 1(11 E l'l 'AlA lvi B EN E ....................................... APP ELLA ['IF VERSUS DATON MWAMPIMBE ..... ..............................RESPONDENT JUDGMENT 16.06.2016 & 26.07.2016 CHOCHA, J. In this appeal between Asukile Mwambene and Daton Mwampimbe who are the appellant and respondent respectively, the issue which I am called upon to resolve is whether or not the matter between them is ares jiid/cata " That position was taken by the trial tribunal in an application no 43/2011 between the same parties whose dispute revolve over a piece of land which according to the appellant, measures 6 acres and worth Tshs 20 m/=. The suitland is according to the record, located at Syukila village within Rungwe District. The respondent on his party however, contends that the land is only 114 an acre. IKI I; After hearing parties.in an application, the trial tribunal found that the "app//cation is res judicata' It observed further that the same subject matter claimed "was the subject of Civil appeal no 112008 at the High Court Mbeya which was conclusively determined that the suit/and belongs to the Respondent's brother, example Adam Mwakifwamba (deceased) ' On account of that finding, the trial tribunal declined from detailing its remarks on the merits of the application. That irked the appellant who quickly raised an appeal containing six grounds, among others, challenging the finding that the application was "resjudicata' This is what I am to decide, that is, is the matter "resjudicata"2 What constitutes "res judicata" has been well defined in the Black's Law Dictionary as:- '4ñ issue that has been definitively settled by judicial decision ' Where it is established that indeed an issue has been settled, it is no longer open for any court to try it. Section 9 of the Civil Procedure Code Cap 33 RE 2002 recaps the prohibition in the following tone thus:- "Wo court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same part/es or between parties under whom they or any of them c/aim /itigating 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" Further constituents of the matter becoming "res judicata" to be found under the provision are that:-. I) The matter must be directly and substantially in issue in a former suit. It should be between same parties or between parties under whom they or any of them claim litigating under the same title. The matter should have been conclusively determined by a court of a competent jurisdiction. Disputes are part and parcel of human life. They fluctuate along with human lifespan. Therefore, come time, as observed in the case of GIBSON MADEGE yR - CRIMINAL AppI 3/2012 Court of Appeal of Tanzania litigations should as well come to an end. The significancy of that holding, though criminal in nature, is cross - cutting with probative bearing in civil litigations too. Land disputes are rapidly multiplying. That represents the rapid and massive land need which unfortunately surpass the available resource. The pace of law reforms is equally inconsistent with the socio - economic reforms, no wonder a rate of circumvention of law is highly alarming. As matters stand now, land related complaints must be very carefully and closely investigated, lest the right people are either denied or deprived their merits. In this appeal by Asukile Mwambene who lost before the trial tribunal is on a tireless fight demonstrating that parties to the ongoing dispute are totally different from those referred by the Respondent. That sounds true by looking and reading the parties' names. In substance however, the position is different. The crucial illustrative evidence on this aspect comes from Daton Mwampimbe. He told the trial tribunal that he was Adam Mwakifwamba's representative in a suit before the Primary Court against Wilson Mwambene over the same plot. In that suit which went up to this high court by way of appeal (Lukeleiwa J), Wilson lost. It was undisputedly contended that the now appellant, who is Wilson's blood brother, testified in that suit in favour of his brother. From that evidence, it is clear that Wilson and Asukile unsuccessfully worked as a team to acquire the suitland. Having lost in Land appeal no 1/2008, the appellant and his allies were wrongly advised to begin the claim afresh before the District Land and Housing Tribunal. That was contrary to the prohibition of section 9 of Civil Procedure Code (sup ra). The appellant does not deny that he testified before the Primary Court in favour of his brother. I befleve the intention was not only to assist his brother. He was also prosecuting his own interests. In so far as the trial tribunal's decision was based on evidence, I find his (appellant's) interests were duly considered and covered in due course. His brother and himself were all proved wrong by both the trial and this court. In as far as the suitland is concerned, like the trial tribunal, I find that both the tribunal and this court had their job done and settled. If the appellant felt aggrieved, he ought to fault this court by further appeal, otherwise substituting a new plaintiff over the same land would not serve any useful end. It would at best continue frustrating the ends of justice. The trial tribunal rightly found that the matter was "resjud/cata' The application 4 was properly dismissed for which this appeal cannot sail through. It is equally dismissed with costs. N.P.Z. Cia Judge 22.07.2016 Date: 26.07.2016. Coram: N.P.Z. Chocha, J. AeIIant: Respondent: I All present. Ms Mwandambo. RIA: Court: Judgment which was not delivered on the 22 n d July on account of our fellow judge's brother's death is now delivered in physical presence of all parties. Order: Right of Appeal Explained. N.P.Z. Chocha Judge 22.07.2016 5