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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA LAND CASE NO. 11192 OF 2024 ATUPEGE ANDENDEKISYE MWAKAHESYA………….……PLAINTIFF

VERSUS TUNSUME KALONGE.….………..…....………….………1ST DEFENDANT CHABWI MBEHO………………………........…………….2ND DEFENDANT LIDIA LUKOMO………………………….....……….……..3RD DEFENDANT MWELA VILLAGE COUNCIL………......………………...4TH DEFENDANT RUNGWE DISTRICT COUNCIL……….…………………5TH DEFENDANT ATTORNEY GENERAL…………………………………….6TH DEFENDANT

RULING Date: 18 September 2024 & 8 November 2024 SINDA, J.: The plaintiff herein, claims jointly and severally against the defendants for interfering and taking his land, measured at 1.39 acres in total located at Mwela village, Rungwe District within Mbeya Region (the Disputed Land). 1 That the Disputed Land is made up of two plots. One portion of the Disputed Land is measured at 0.48 acres registered as title NB/KIJ/885/5923 and another portion of the Disputed Land is measured at 0.91 acres registered as title MB/KIJ/885/5924. The brief facts of the case are that in 2008 the plaintiff was appointed the administrator of her mother’s estate. She inherited the Disputed Land being one of the beneficiaries. That, she has been using the Disputed Land uninterrupted ever since until 2014. Between 2012 and 2013, without any legal right and justifiable reasons, the first respondent fraudulently sold the Disputed Land to the second and third defendants. Further, the fourth and fifth defendants issued certificates of customary right of occupancy to the second and third defendants. She alleged that all transactions happened without her knowledge. In the written statements of defense (the WSD), the defendants disputed most contents of the plaint. Further, the counsel for the second and third defendants raised three preliminary objections (the P.O.), to wit: 1. That, the suit is Res

Judicata 2. That, the Res Judicata status of the suit is Res Judicata 2 3. That, this suit is frivolous and vexatious and an abuse of court process. It is thus upon this court to determine the P.O put forth, before deciding whether or not to continue with the main suit. At the hearing of the P.O, the plaintiff was represented by Mr. Imani Mbwiga, learned Counsel. The second and third defendants were represented by Mr. Ignas Ngumbi, learned counsel. Submitting on the first point of the P.O, Mr. Ngumbi argued that the suit is res judicata as far the second and third defendants are involved. That the Disputed Land has been subject to litigation between the plaintiff and the first respondent. He stated that in 2007 before the Kandete Ward the decision was in favour of the plaintiff. The first respondent then successfully appealed at the District Land and Housing Tribunal for Rungwe (the DLHT). Dissatisfied, the plaintiff unsuccessfully appealed to the High Court Land Division at Mbeya (the High Court) in Misc. Land. Appeal No. 33 of 2008. That, in 2019 in his capacity as an administrator of his mother’s estate and in 2021 in his personal capacity, the plaintiff instituted cases against the 3 first, second and third defendants before the DLHT. The cases were dismissed for being res judicata. Mr. Ngumbi prayed for this court to take judicial notice of the said previous decisions

annexed to the second and third defendants’ WSD. He cited the case of Diocles Kamuhambwa vs. Theonest Kamuhambwa, Civil Appeal No. 436 of 2022 [2024 TZCA 221. It was the counsel’s further argument, that the doctrine of res judicata is created under Section 9 of the Civil Procedure Code [Cap 33 R.E 2019] (the CPC). It comprises of five elements as provided in the case of Peniel Lotta vs. Gabriel Tanaki and Others [2003] TLR 312. First, the judicial decision is to be pronounced by a court of competent jurisdiction. Second and third elements, the subject matter and the issues decided in the former suit should be the same as the issue in the subsequent suit. Fourth, the decision in the previous case should have been final. And fifth, the parties should be the same litigating under the same title. In relation to the explained elements, Mr. Ngumbi also cited the case of Umoja Garage vs. NBC Holding Corporation [2003] TLR 339 and that of Gerard Chuchuba vs. Rector Itaga Seminary [2002] TLR 213. 4 With regards to the fifth element, the Counsel was of the view that the fourth to sixth defendants were only added by operation of the law because afterwards the fourth and fifth defendants issued a customary right of occupancy to the second and third defendants. On the second point of the P.O, Mr. Ngumbi submitted that the Res Judicata status of the case was determined twice by the DLHT

in application No. 48 and 49 of 2019 and in application No. 17 of 2021 respectively. He opined that the plaintiff should have appealed and not open a new case. Arguing on the third point of the Preliminary Objection, the counsel contended that the plaintiff has no cause of action against the defendants. In winding up, Mr. Ngumbi submitted that the suit is instituted against the first defendant who is deceased. Whereas her death is in the knowledge of the plaintiff. In his reply submission, Mr. Mbwiga elaborated on the five conditions/elements as stipulated in the case of Peniel Lotta vs Gabriel Tanaki & 2 Others (Supra) and Section 9 of the CPC. On the first condition, the counsel argued that in the present case the facts and subject matter are different from the previous one. That, in the present case the 5 Disputed Property is measured at 1.39 acres, located in Mwela Village. While the suit land in dispute No. 09/2007, Appeal No. 16/2007 and Misc. Land Appeal No. 33/2008 was measured at 9 acres. The counsel added, the suit Land in Application No. 48 and 49 of 2019 is located at Mwela ward while the suit land involved in Dispute No. 09/2007, appeal No. 16 and Misc. Land Appeal No. 33/2008 is located at Kandete ward. Besides, he added, the matter in Application No. 48 and 49 of 2019, was not determined to its finality since the case was disposed by Preliminary Objection. That,

it would be misleading to consider the matter as res judicata. With regard to the second condition, Mr. Mbwiga submitted that in Dispute No. 06/2007, Appeal No. 16/2007 and Misc. Land Application No. 33/2008, the names of the parties appear as Atupege Mwakahesya versus Tunsume Kalonge. Who are the plaintiff and first defendant in this case. The second to sixth defendants were not party to the case. Likewise, in Application 48 and 49 of 2019, the fourth to sixth defendants were not party thereto. Moving to the third condition, Mr. Mbwiga submitted that the title under which the plaintiff claims cannot be the same since the subject matter differs in the case at hand. As he explained in the first condition. Among 6 other things, the counsel explained that if the subject matter was the same then the first defendant would not have been convicted in Criminal trespass in Criminal Case No. 32/2010 at Kandete Primary Court, after the matter was first referred to the Kandete ward to ascertain on the issue of ownership. The counsel continued, that the location of the suit land is not the same. Addressing the fourth condition, the counsel agreed that the court which decided the former suit must have been of competent jurisdiction. However, he added, the opposite counsel referred to Application No. 48 and 49 of 2019. Mr. Mbwiga sustained that since the matter was dismissed for being res

judicata and was not heard on merit. Then it cannot hinder the present suit. As he concluded his reply and discussing on the fifth condition, the counsel argued in the case at hand the suit had never been tried by any court to its finality. That for a suit to be res judicata all conditions must be present. Mr. Mbwiga did not extensively discuss on the second and third points of the preliminary objection. 7 As he rejoined, Mr. Ngumbi insisted that the suit land is the same in this case as it was in all the previous cases. That, the address of the suit land has never changed as it is still located in Mwela village, Kandete ward. As stated at page 4 of the decision in Application No. 48 and 49 of 2019 of the DLHT. The only difference this time around is, the suit land has been duly registered under customary right of occupancy in 2016, which was long after the issue of ownership has been resolved. On the argument that, the first defendant was convicted of criminal trespass in Criminal Case No. 32 of 2010. The counsel argued, the plaintiff was also convicted in Criminal Case No. 255 of 2013 for forceable detainer of the Disputed Land at the Rungwe District Court. That was after the District Court clarified that the Disputed Land in Criminal Case No. 32 of 2010 is the same as that in Land Appeal No. 33 of 2008, to which the first defendant was declared the owner. I have gone through

the submissions, laws and case laws put forth by both sides. I will now deliberate on the preliminary objections raised, beginning with the first point: That, the suit is res judicata. I will be directed with the provisions of Section 9 of the CPC, that provides: 8 “9. 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 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 position was further elaborated in the case of Peniel Lotta vs. Gabriel Tanaki & 2 Others (Supra) as explained by both counsels during their submissions. The case provides conditions necessary for a suit to be res judicata, to wit: “The scheme of section 9, therefore, contemplates five conditions which, when co existent, 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; (iii) 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.” During hearing of the P.O, the learned counsel for the second and third respondents stood his ground that the matter is res judicata. As the conditions stipulated herein above are evident in the present matter. On the other hand, Mr. Mbwiga for the plaintiff, was of the view that, the land 9 subject matter in the present case is different from the land in the previous decided cases. He added, only the plaintiff and first defendant were parties in the previous cases. With exception to Application No. 48 and 49 of 2019 and Application No. 17 of 2021 before the DLHT, where the second and third defendants were also parties thereto. I will not focus on Application No. 17 of 2021 as I could not find any trace of its existence from the records. After thorough discussion, Mr. Mbwiga was of the view that since the fourth, fifth and sixth defendants were not parties to any previous proceedings, then this is a different suit all together. Undoubtedly, there have been a lot of cases over the Disputed property, between the plaintiff and the first defendant. Including three criminal cases, Criminal Case No. 32 of 2021, Criminal Appeal No. 36 of 2010 and Criminal Case No. 225 of 2013. In order to avoid going

astray, I will not focus on the criminal cases. Altenatively, I will dwell on the civil ones, most importantly the Misc. Land Appeal No. 33 of 2008 before the High Court and Application No. 48 and 49 of 2019 before the DLHT. As for the former, the matter commenced at Kandete Ward Tribunal, followed by the DLHT for Rungwe and finally the plaintiff appealed to the 10 High court. In its decision, the High Court decided in favour of the first defendant. The plaintiff, did not appeal against the said decision. Instead few years later, after the first defendant sold the land to the second and third defendants, he instituted the above mentioned Application No. 48 and 49 of 2019. Where the DLHT dismissed the same for being res judicata. That being the case, I am of a settled view that all conditions required for a suit to be res judicata are present in this case. Inter alia, the subject matter is the same in all cases. That is, a land located at Mwela Village, Kandete Ward within Rungwe District and Mbeya Region. Mainly because there is no proof whatsoever suggesting the plaintiff and respondents are disputing over different lands. The plaint itself, particularly under paragraph ten (10), explains the plaintiff obtained the land in 2008. He has been using the land uninterrupted until 2014 when it came to his knowledge that the land was sold to the second and third defendants. This goes

to show that all the cases in between the years and the ones that followed afterwards, were over the same land. With regard to parties, Mr. Mbwiga asserted that the parties in the current case were not present in the previous suits. Namely the fourth, fifth and sixth defendants. Implying, the matter cannot be res judicata because the 11 parties are different. On the outset, I see how this argument can be alluring due to the addition of parties. However, the genesis of the matter started with the first defendant, who was declared the legal owner of the suit land by my fellow High Court Judge. A decision which remains unchallenged to this date. In a nutshell, the second and third defendants are joined to the case after they had bought the land from the first defendant. Whereas the fourth and fifth defendants are joined herein for issuing customary right of occupancy to the second and third defendants. The sixth defendant is joined as per the requirement of the law. Having seen that all defendants draw back to the first defendant, who was the initial owner. It follows that the addition of defendants at this juncture becomes rather futile. In consequence thereof, if this tendency continues the dispute will never end. As every time the plaintiff feels like adding a new defendant the matter will proceed as if it had never been decided before. This was discussed in the case of

Registered Trustees of Chama cha Mapinduzi vs. Mohamed Ibrahim Versi and Sons and another, Civil Appeal No. 16 of 2008, CAT (unreported) in which the Court stated that; 12 "The object and public policy behind the doctrine of res judicata is to ensure finality in litigation. It is also meant to protect an individual from multiplicity of litigation" Also see: Umoja Garage vs. National Bank of Commerce Holding Corporation, Civil Appeal No. 3 of 2001, CAT (Unreported) I therefore agree that the case is indeed res judicata. Thus, I will refrain from discussing the rest of the Preliminary Objections raised as the one discussed is enough to dispose of the case. In the light of the above, I sustain the objection and hold that land Case No. 11192 of 2024 is res judicata. I hereby struck out the matter for being incompetent with costs. It is so ordered. DATED at MBEYA on this 8 day of November 2024. A. A. SINDA

JUDGE 13