Baraka Hussein v Bounty Properties Limited Misc

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS LAND APPEAL NO. 000026801 OF 2023 BARAKA HUSEIN .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS BOUNTY PROPERTIES LIMITED .............................. RESPONDENT / DEFENDANT JUDGMENT P. R. KAHYOZA, J, The Appellant herein, being aggrieved by the judgment and decree of the District Land and Housing Tribunal (DLHT) for Kigoma, is persuading this Court to consider and allow his appeal which is centered on the following seven (7) grounds; 1. That, while the matter on the same land/claims and persons cannot be tried twice, then tribunal erred in both law and facts to determine the matter res judicata as prior it was determined on Land Case No. 13 of 2011 of Mungonya ward tribunal between the Appellant and the seller (Hussein Gwiyama) of suit land to 1st Respondent who was a party to the trial tribunal. 2. That, the trial learned chairperson erred in both law and facts to allow the 1st Respondent Application on ground that a decided case on the same land cannot amount to res judicata despite a seller to the 1st respondent being involved and testify in the favor of the Appellant herein in Land Case No. 04 of 2007 and Land Case No. 13 of 2011 both of Mungonya ward tribunal and the Appellant won a case over suit land. 3. That, the trial tribunal erred in both law and facts to allow the 1st respondent Application by accepting the sale agreements executed with malafide intent involving a part of family land but none of family members/wife of a seller or relative was involved as witness of the said sale despite the Appellant being in occupation of the suit land for more than 20 years and the seller had several times tried to take over the suit land but failed and defeated in law. 4. That, the trial tribunal erred in both law and facts in relying on contradictory evidence as to the size of land bought and the certificate of occupancy, that the surveyor measured 9 acres from someone Titus Kayanda and 4.7 acres from Hussein Gwiyama which makes a total of 13.7 acres contrary to certificate of occupancy which show the total of 9.46 acres and none of the seller or any other person neighbour of the suit land was called to testify on the said contradiction. 5. That, while potential or key witness are mostly important in adjudication, then the learned chairperson erred in law and facts to determine the matter against the Appellant while potential witnesses were neither summoned nor joined (Titus Kayanda) Page. 1 6. That, the learned chairperson erred in law and facts to allow the 1st Respondent’s Application by denying the Appellant witness’s evidence that they were not present while the Appellant was given the said land by his late father despite of the said evidence being heavier to the case and accepting the weak and uncertain evidence by the 1st Respondent despite of key witnesses not called. 7. That, the trial tribunal erred in law and facts for deciding against the Appellant while the evidence clearly show that the said land was already given to the Appellant in 1985 and it was sufficiently proved even by the ward tribunal record of 2007. A brief background of the facts leading to this appeal is that the 1st Respondent filed his application to the DLHT for Kigoma to be declared the owner of a 4.7 acres land situated at Kabemba village, Kigoma district. The said suit land was previously owned by Hussein Gwiyama, deceased, who sold it to the 1st respondent in 2013. However, the Appellant and the 2nd respondent claim to have been given the respective land by their late father, Hussein Gwiyama, back in 1985. On the other hand, the 3rd, 4th and 5th respondents claimed to have bought the said suit land from the Appellant and the 2nd respondent at different times. Following this state of affairs the first Respondent instituted a claim before the District Land and Housing Tribunal (DLHT). Upon hearing and determination of the suit before it, the DLHT declared that the 1st respondent was the lawful owner of the suit land. Discontented, the Appellant lodged this appeal. But with the inexplicable absence of the 3rd, 4th and 5th respondents, hearing of this appeal involved only the Appellant and the 1st respondent. The Appellant argued his appeal in person while the 1st respondent was represented by Mr. Sadiki Aliki, learned advocate. Supporting his appeal the Appellant was brief; he prayed his grounds of appeal be considered and the court decide accordingly. But then he added that the chairperson failed to consider his evidence, rejected his exhibits, that is the judgment of the Ward Tribunal. He also added that the 1st respondent was illegally sold the suit land that is why he has no title deed or any document of ownership. Opposing the appeal, Mr. Sadiki was of the view that the DLHT considered the evidence on record and came up with a justifiable decision. He particularly made reference to page 11 of the DLHT’s judgment. Mr. Sadiki continued to submit that the Appellant’s argument on rejection of exhibits is unfounded because it is not among the grounds of appeal. Responding on the first and second grounds of appeal on res judicata, Mr. Sadiki stated that the disputed land is 4.7 acres while the Appellant’s concern relates to 2 acres. This means res judicata cannot be invoked because the subject matter of the two cases is different. Moreover, the parties before the Ward Tribunal are different from those before the DLHT. Mr. Sadiki pointed out that Nchumbo Rusemi, was a party at the Ward Tribunal but not at the DLHT. He also pointed out that the 3rd to 5th parties were also not parties to the Ward Tribunal and their allegation that they bought land from the Appellant Page. 2 and the 2nd respond was not proved. He concluded by submitting that given these circumstances, the doctrine of res judicata cannot be invoked at all. On the third ground of appeal Mr. Sadiki responded that the suit land was a personal property of the seller and not a family property. He also argued that this issue was never pleaded at the DLHT. Responding to the contradiction on the size of the suit land as it was raised in the fourth ground; Mr. Sadiki stated that, it is not mandatory that all land must be surveyed, an owner may choose which land to survey and which one not to. He further submitted that the Appellant did not cross-examine the witness on this issue. Tackling the fifth and sixth grounds, Mr. Sadick submitted that there is no legal requirement as to the number of witnesses and that no material witnesses were dropped by the DLHT. Additionally, Mr. Sadiki submitted that Titus Kayanda was not summoned because he passed on while the matter was at the hearing. As such he could not be summoned to testify in court while he was dead. On the last ground, Mr. Sadiki was of the view that the Appellant never owned the suit land. It was therefore proper for the DLHT to enter judgement in favor of the first Respondent who had lawfully purchased the suit land. In his rejoinder the Appellant reiterated that he tendered relevant documents to prove ownership of the land in dispute. He also submitted that he did not bless the sale of the suit land as reflected in the Ward Tribunal’s judgment. I have considered the submissions by the parties in line with the DLHT’s records and the grounds of appeal. I will momentarily address the grounds of appeal to determine whether the appeal before me is merited. I will commence by jointly addressing the first and second grounds of appeal given that they both relate to the same point of res judicata. In these two grounds the Appellant claims that the DLHT tried the matter that was res judicata since it was already determined at Mungonya Ward Tribunal in Land Case No. 13 of 2011. In tackling the first two grounds on res judicata, I shall start by looking at the position of the law. Res judicata is provided under Section 9 of the Civil Procedure Code [CAP 33 R.E 2019] which states; “ 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 provision cited above clearly shows that for res judicata to stand, there must be three essential elements, namely, that the claim involves same parties, that the claim involves same subject matter, and that the claim was finally determined. The Court of Appeal elaborated this position in Emmanuel Simforian Massawe vs The Attorney General, (CAT), Civil Appeal No. 216 of 2019, in which it was stated; “…we wish to restate three essential elements for the principle of res judicata to apply hereunder: - Page. 3 1. The matter which is directly and substantially in issue in the present case must also have been directly and substantially in issue in a former suit. 2. The previous suit must have been finally and conclusively determined. 3. Parties claiming in the present suit and the former suit must be the same parties claiming under the same title.” I had to revisit the records of the trial tribunal, particularly, Land Case No. 04 of 2007 which is marked in DLHT proceedings as Exhibit D1. It clearly shows that the 1st respondent was not a party to that case, not to mention the rest of the respondents. It follows therefore, that given these circumstances, the doctrine of res judicata cannot be invoked at all. I therefore agree with the trial tribunal that it rightly rejected the defense of res judicata as the same was not applicable in the circumstances that was before it. Therefore, grounds one and two are bound to fail as they are devoid of merit. As for the third ground the Appellant claims that the sale agreement was executed with malafide intent. He however failed to substantially point out such bad faith in the sale agreement. Moreover, the Appellant was not a party to the said sale agreement, I believe if there was any query as to the agreement then parties to it ought to have raised the same. In any case this ground is baseless, hence dismissed. Contradictory evidence as to the size of land the 1st respondent bought is another complaint. It is reflected in the fourth ground. According to him the surveyor, SM2, measured 9 acres of Titus Kayanda and 4.7 acres from Hussein Gwimaya totalling to 13.7 acres. He contends however that the certificate of occupancy, Exhibit P3, display a total of 9.46 and no one was called to address the discrepancy. As regards this issue, I entirely agree with Mr. Sadiki Aliki, counsel for the first Respondent that this ground was never raised when the Appellant and the 2nd respondent were accorded the opportunity to cross examine the witness, SM2. Probably, by then, the witness would have been in a great position to respond to it. The Appellant is precluded from raising it at this time. By his failure to cross examine the witness on that particular aspect, he was taken to have accepted it. In Tom Morio vs. Athumani Hassan (Suing as the Administrator of the Estate of the Late Hassan Mohamed Siara) & 2 Others, Civil Appeal No. 179 of 2019, on the issue of not cross examining the witness on a crucial matter to the suit, the Court stated; “It is trite law that failure to cross-examine a witness on a crucial matter ordinarily implies the acceptance of the truth of the witness evidence” With that guidance in place, I would safely conclude that complaint in ground four is unfounded and is accordingly dismissed. The Appellant in his fifth and sixth grounds claims that potential key witnesses were not called which means the evidence of the first respondent before the trial tribunal was weak, and as such, the DLHT ought not to have decided in his favor. As far as the issue of witness is concerned, I entirely agree with the counsel for the first Respondent that the law does not set a number of witness a party must call to prove his case. Page. 4 As for Titus Kayanda whom the Appellant claim was not summoned, SM3, Utesi Kabobo revealed in his testimony that he was dead. Page 38 of the DLHT proceedings reflects his testimony; “eneo hilo lipo kijiji cha Msimba mkoani Kigoma linapakana na Kalia Rusovu, marehemu Titus Kayanda, marehemu Mzee Hussein Gwihaya (eneo jingine alilobaki nalo, barabara ya Kasulu)” On this, I also agree with counsel for the 1st respondent, Mr. Sadiki, that the Appellant never cross examined SM3 on the whereabouts of Titus Kayanda, because he knew he was dead. I fail to understand why the Appellant wanted a deceased person as a potential witness. For these obvious reasons I find that grounds five and six are also baseless. They are accordingly dismissed. On the last ground, the Appellant maintains that the DLHT erred to decide against the fact that he was given the suit land by his deceased father in the year 1985 as sufficiently proved by Ward Tribunal records of 2007. The appellant relies on Exhibit D1 to prove his ownership to the suit land. Exhibit D1 is Land Case No. 04 of 2007 in which the Appellant sued one, Hussein Rajabu for trespassing. In that particular case the Appellant’s father, Hussein Gwiyama, testified that he had given a portion of his land to his sons for cultivating. It is however never reflected from that land case that the 4.7 acres suit land was the subject matter in that land case. As rightly submitted by the counsel for the first Respondent, the DLHT addressed itself on this issue but found that there was nothing in the proceedings before the Ward Tribunal which suggested that the suit land was transferred to the Appellant by his deceased father. I am at one with the DLHT on this issue. On the contrary, there was sufficient evidence showing that the suit land had been purchased by the first respondent, and as such he was the lawful owner of the suit land. I therefore cannot fault the DLHT for arriving at this conclusion. This means, ground seven has also failed. In the final analysis, and just for all the foregoing reasons, I find and hold that the appeal is devoid of merit. It is accordingly dismissed with costs to the first Respondent. Right of appeal is duly explained Dated at KIGOMA ZONE this 23rd of October 2024. P. R. KAHYOZA, J JUDGE OF THE HIGH COURT Page. 5