MACHANGO SAFII

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 354 OF 2023 (Originating from Land Application No. 88 of2023 District Land and Housing Tribunal of Kinondoni at Mwananyamaia) MAGRETH EVEREST MACHANGO...................................................... APPELaNT VERSUS 1. SILVA SYLVESTER BILEGEYA .< 2. KIGOMA FINANCE LIMITED L................... RESPONDENT 3. MAJEMBE AUCTION MART LIMITED 4. KIBANGO GENERAL BUSINESS LIMITED JUDGEMENT Date of last order; 14/03/2024 Date ofjudgement;21/03/2024 S.D.MWAIPOPO, J The Appeal emanates from Land Application No. 88 of 2023, which was filed between the parties herein. The Applicant in the said application, claimed, among other things, to be declared the lawful owner of the disputed house located at Plot No. zubi block A rormely 226 MDezi Juu, in Kinondoni District within Dar es Salaam Region. The case was filed following a move by the 1st Respondent of invading, trespassing and evicting the Appellant from her house, which the 1st Respondent claimed to have bought by way of auction from the 2nd Respondent in an auction which was conducted by the 3rd Respondent. Before this Application was^ fixed for hearing, the first Respondent raised the following two Preliminary objections to the effect that: " a. That the rL Respondent nave (sic) notice that this Application is an abuse of the Court process. b. That this Application is resjudicata. Upon determining the Preliminary Objections, the DLHT sustained the Preliminary objections and ruled that Application No. 88 of 2023 is res judicata to Application No. 256 of 2015 and 259 of 2017, all of which dealt with the same subject matter i.e. disputed property no. 2051 Block A formerly Plot No. 226 located at Mbezi Juu Area. Aggrieved with the decision of the DLHT, The Appellant has filed before this court a Memorandum of Appeal containing 7 grounds of Appeal as follows; ......-- 1. That the learned trial chairman erred in law and fact by ruling that the Land Application is res judicata with Application No. 2015 while the Application has different cause of actions as well as parties. 2. That, the learned Trial Chairman erred in law and fact by ruling that the Land Application is res judicata with Application No. 29 of 2017 while the application has different case as well parties, ad the Appellant herein was not the part to the case. 3. That, the learned trial chairman erred in law and in tacts Dy disregarding the ingredients of res judicata by the law. 2 4. That the learned trial chairman erred in law and in.Tacts, sustaining the preliminary objection while the ingredients of res judicata was not proved. 5. That, the learned trial chairman erred in law and in facts by sustaining the objection basing on one ingredient on similarity of the matter in isolation of other provided ingredients contrary to the law. 6. I hat the learned trial chairman erred in law and in facts ruling that the land application is res judicata while the subject matter of the cases are district from one another. 7. That, the learned trial chairman erred in law and in facts for pot^1^®4* considering the appellants submissions hence reached to erroneous decision. WHEREFORE; the appellant prays for the following orders; a) That this appeal be allowed. b) Costs of this appeal be borne by the Respondents and, c) The Honorable Court be pleased to grant such order further reliefs as it may deem fit and just. The Appeal was argued by way of written submission pursuant-^M’I’r^'^iMW timetable ordered by court. The Appellant was represented by Learned Advocate Ambroce Meriance Nkwera while the 1st Respondent enjoyed the services of Learned advocate Geofrey Nkoko (Advocate). The 2nd, and 4th Respondents were duly served by way of publication in 3 ............ now Mwananchi Newspapers. Thus, the matter proceeded exparte against them Submitting in support of the Appeal, The Learned Advocate-Tor. the Appellant began his submissions by praying to abandon the sixth (6) ground of Appeal and wished to consolidate the first and second grounds and the third, fifth and seventh ground of appeal. Arguing for the first and second ground of appeal, the learned counsel stated that the Learned Chairman erred in law and in fact by ruling that the Land Application is res judicata in respect of Application No. 256 of 2015 while the Application had a different cause of auction as well as the parties and that the learned Chairman erred in law and fact by ruling that the Land Application is res judicata in respect of Application No. 259 of 2017 while the Application has a different cause of action as welT‘ ‘ , w^ as parties and the Appellant herein were not a party to the case. The learned counsel submitted that for the principle of res judicata to 8 1 J- ■ . ... • ■ • hold water, the provisions of section 9 of the Civil Procedure Code Cap 33 RE 2019 must be fulfilled. The provisions state that when the matter has been finally tried by a court of competent jurisdiction, it should not be re opened or challenged by the original parties or their successors. He referred the court to the case of Peniel Lotta vs. Gabriel Tanaki and others CAT, Arusha Civil Appeal No. 61/99, 2003 TLR 312 which has enumerated five ingredients to be fulfilled, succeed on the ground of res judicata. The grounds are as follows: 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. Based on the said ingredients above he argued that, Applications No. 256 of 2015 and 259 of 2017 were heard by a Tribunal with competent jurisdiction however the Application differed from Land Application No. 88 of 2023 in terms of cause of auction, parties and final determination of the suit. He submitted that, in Application No. 256 of 2015 the issue was on proper procedure for conducting auction, while in Application No 259 of 2017 the issue was on request to be handed over with the disputed property, while the cause of auction in Land Application No. 88 of 2023 was on ownership of property located at Plot No. 2051, Block A formerly 226 Mbezi Juu, Kinondoni District within Dar es salaam Region. With regard to the parties the learned counsel for the Appellant argued that, the parties were never the same in the three Applications, in Application No 256 of 2015 the 1st Respondent in this Appeal was not a 5 party therein and the matter was dismissed for want of prosecution. He referred the Court to the case of Masumbuko Kowolesya Mtabazi versus Dotto Salum Chande Mbega Civil Appeal NO 44 of 2013 (2020) CAT at Dar es salaam pg. no. 10-11 to drive the point home that the matter was not finally determined because it was dismissed. With regard to parties in Application No 259 of 2017, the Learned Counsel contended that, the Appellant herein was not a party while in Application No. 88 of 2023 the parties were as they appear in this . Appeal. Therefore, he contended that, Application No. 88 of 2023 cannot be res judicata to Application No. 256 of 2015 and 259 of 2017. He referred the court to the case of Masumbuko Kowolesya Matabazi (supra). He argued that although the subject matter was the same, the parties were different. He cited the case of EADB Vs. Biveline Enterprises Ltd Civil Appeal No. 110 of 20091 (2011) CAT Dar es salaam, Lim Han Young and another vs Lucy Treseas Kristensen Civil Appeal No 219 of 20219 (2022) CAT Dar es salaam. Coming to the 3rd, 4th, 5th and 7th grounds of appeals, the Learned Counsel contended that the learned Chairman erred in law and in fact by disregarding the ingredients of res judicata provided by the law, that the learned trial Chairman erred in law and in fact by sustaining the Preliminary objection while the ingredients of res judicata were not proved and that the learned trial chairman erred in law and in fact by 6 sustaining the objection on one ingredient of similarity of the subject matter in isolation of other provided ingredients contrary to the law. The Learned Counsel for the Appellant argued that for any matter to be regarded as res judicata all the ingredients provided under the case of Peniel Lotta vs. Gabriel Tanaki (supra) must be proved ancl^ndt^Wiife proving some of them in isolation of the other, because these ingredients co-exist. He referred the Court to the case of Masumbuko Kowolesya (supra) Yohana Dismas Nyakibari and another^?wwj«w Lushoto Tea Company and 2 others, Civil Appeal No. 90 of 2008 (unreported). He argued that, the Tribunal was supposed to observe that the ingredients stated in the Peniel Lotta Case have all been fulfilled before giving its ruling or sustaining the Preliminary Objections. He contended that the Hon. Chairman erred in law in basing his decision on the issue of the subject matter alone, forgetting that res judicata is not proved by a single ingredient but five of them therefore, he concluded that, the Respondents have failed to prove existence of other ingredients for res judicata and as a result the Tribunal misdirected itself and ruled that Land Application No. 88 of 2023 was res judicat^W'’tWM,?® Application No. 256 of 2015 and 259 of 2017 based on similarities of the subject matter which is a total misdirection and contrary to law. Therefore, prayed for the appeal to be allowed with costs. Submitting in rebuttal, the learned counsel for the 1st Respondent disputed all the grounds of appeals and argued the grounds in the similar order presented by the Appellant. He began his 7 stating that the Appeal is without merit, baseless and misconceiveddaSi^«!0 result of the interpretation of the law. With regard to the first and second grounds of appeal he argued that, the Land Application No. 88 of 2023 is res judicata vide Application No. 259 of 2017, Land Application No. 256 of 2015 and Land Application No. 1166 of 2021 and Misc. Land Application 58 of 2023 which were filed , r 1.1 I I- I Z- . r . . before the High Court of Tanzania, Land Division, between the Appellant Margareth Everest Machango and Sylvester Bilegeya and another. He argued that all the above cases were filed by the Appellant and were determined by the Tribunal and the High Court conclusively. He thu^ ? wondered why the Tribunal only mentioned Land Application No. 259 of 2017 and Land Application No. 256 of 2015 only. He argued that the Appellants prayers in Land Application No. 88 of 2023 are in respectPof^MM^ declaration order that the Appellant be declared the lawful owner of the disputed house and that in all the Applications mentioned above, the Appellant's relief was a declaration that she is the lawful disputed house located at Plot No 2051 Block A formely 226 Mbezi Juu in Ubungo District within Dar es salaam region. Thus, in the matters the Trial Tribunal and the High Court Land Division conclusively determined the matter, therefore the Appellant is stopped to file a fresh suit before the Trial tribunal because it is functus officio. The learned counsel argued that the Appellant herein has been filing cases and abandoning them, and whenever they are dismissed she files another case. Therefore, the DLHT was correct in dismissing Application No. 88 of 2023 after finding out that the ingredients in the case of Peniel Lotta were fulfilled. The Learned Counsel for the 1st Respondent, has argued that since the Appellant and the 1st Respondent have a common interest in the disputed house and that the Appellant pleaded in his application No 88 of 2023 para 6 (iv) that she filed Land Application No. 256 of 2015 which was dismissed for want of prosecution and the Tribunal inyLand^^^ Application No. 259 of 2017 declared the 1st Respondent as the rightful owner of the disputed property having purchased the same from an open auction, conducted by the 3rd Respondent, under the instructions.^,#*^ of the 2nd Respondent. Although the Appellant was aware of the dismissal order of the Tribunal dated 5/5/2017 and without filling an Application to have the aside or appeal against the order, decided to file Misc. Land Application No. 58 of 2023 against the 1st Respondent and the 4th Respondent, which was also subsequently dismissed by the High Court. Similarly, since the execution order had already been issued against the Appellant, the DLHT was justified to dismiss Land Application No. 88 of 2023, since the matter had already been determined to its finality and the stage of execution by way of eviction. Thus, the learned counsel for the 1st Respondent prayed for the court to dismiss the Appeal as the DLHT dismissed Land Application No.88 of 2023 for • officio. Further he argued that the subject matter in the former suit is one and the same as in the current case. 9 One, the learned counsel referred the court to the case of Jansa Mwakipesile (Administrator of the estate of the late Jafari M. Mwakabole versus Benedictor Mwambwila, Land Appeal No. of 2021, HCT at Mbeya (unreported) at pg.7. With regard to different causes of auction, the Learned Counsel for the 1st Respondent contended that it did not matter since the subject matter in all the cases was the same. The learned counsel further distinguished the cases cited by the Appellant for being irrelevant i.e. Masumbuko Kowolesya (supra), Lim Han Yun, and another further cited the case of Said Hamad Lugumi vs. Commercial Bank of Africa and others Land case No. 137 of 2023, High Court of Tanzania Land Division of Dar es salaam Tanzlii to drive the point : 4 1 home that the matter is res judicata since the subject matter was the same, regardless of the change of parties. See also the case of Lyamuya Construction Company Limited (supra). Regarding ground No. 3,4, 5 and 7 of Appeal, the learned counsel for the 1st Respondent contended that, the ingredients required for res judicata to hold water have already been submitted extensivelyM^^€S«*s®> previous submissions in the decision of the trial tribunal, when the DLHT decided that the matter had been finally determined and at the stage of execution and that parties were almost the same and the subj^tjg^^^^^ was the same, and the decision given by competent bodies. In conclusion the Learned Counsel prayed for the Court to dismiss the Appeal since the matter had already been determined by the BLJdZ^aad®®t® io . • ... was at the stage of execution, otherwise it would amount to an abuse of the court process. In rejoinder, the Appellant reiterated his submissions in chief. Having gone through submissions of the parties, the broad question to be addressed is whether this appeal has merit and I will determine the appeal by addressing all the six grounds of appeal together as follows; Throughout the submissions, I have observed that the parties are at loggerhead as to whether the Tribunal was right in declarings La nd' Application No. 88 of 2023 as res judicata to Land Application No. 256 of 2015 and Land Application No. 259 of 2017. The Court of Appeal has set out five conditions for a matter to amount to res judicata in the case of Peniel Lotta vs. Gabriel Tanaki and others (2003) TLR 312, the same arises from the scheme of section 9 of the CPC Cap 33 RE 2019 which when exist bar a subsequent suit. The said conditions are as follows: 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. n 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. i he rationale of the doctrine of res judicata is found in the expression two Latin maxims that; i. Interest rei publicae utsit finis litium which means the interest of the public requires that there must be an end to litigation and, ii. Nemo debet bis vexall sicon stant curiae good sit pro una et eadem causa which means no man should be twice sued upon one and the same set of facts it there has been a final determination of the competent courts. . , As for the first and third principles of res judicata, the matter directly and substantially in issue in the subsequent suit must have been directly and substantially the in issue in the former suit and that the- parties:4n^®^® the subsequent suit must have litigated under the same title in the former suit. The learned counsel for the Appellant has tried to convince'"*his Court' that Land Application No. 88 of 2023 is not res judicata to Application No. 256 of 2015 and land Application No. 259 of 2017 without disputing that the subject matter in all the cases was the same.-On>4iis^d^he»s»» 12 learned counsel for the 1st Respondent has contended that the matter is,. res judicata. I have perused the records and observed that the Appellant filed Land Application No. 256 of 2015 against Kigoma Finance Limited and Majembe Auction Mart challenging irregularities in auctioning the disputed property Plot No. 2015 Block A formerly 226 Mbezi juu in Kinondoni District within Dar es Salaam region. The same was dismissed for want of prosecution. That Application No. 259 of 2017 was filed by the 1st Respondent against Kigoma Finance Limited and Majembe Auction Mart whereby the 1st Respondent was litigating on the same .... ■ < ■ ■ - Plot and prayed to be handed over with the same disputed property having bought the same in an auction and lastly in Land Application No. 88 of 2023 the Appellant filed Land Application before the Tribunal claiming to declared the lawful owner of the same disputed plot no. 2051 Block A formerly 226 Mbezi Juu, in Kinondoni District Dar es salaam Region. Looking at the subject matter, it is definitely the same subject matter which was involved in all the three mentioned cases.- Therefore, I have observed that the subject matter directly and substantially in issue in the subsequent suits has been directly and substantially in issue in the former suit and parties have under the same title. It is also worth to note that the dismissal of the suit has the effect of barring subsequent proceedings on the same subject matteF*aTldrth^?;'i&-?'A® cause of action, even where the parties are different. The matter becomes constructively res judicata. Therefore the Tribunal was correct .aw.,, W’ i in barring the Appellant to institute Application No. 88 of 2023 involving " the same subject matter which had already been litigated under Applications No. 256 of 2015 and Land Application No. 259 of 2017 which was at the stage of execution by way of eviction of the Appellant in the same disputed property or subject matter. Next for consideration is the second principle, which is to the effect that former suit must have been between the same parties or privies claiming under them. I have gone through Application No. 256 of 2015 and noted that the parties were the Appellant against Kigoma Finance Limited and Majembe Auction Mart and in Application No/2^ the parties were the 1st Respondent vs. Kigoma Finance Limited and Majembe Auction Mart and in the Application No 88 of 2023 the parties were as they appear in the instant Appeal i.e. Margareth Machango vs.sw^w Sylva S. Bilegeya, Kigoma Finance Limited, Majembe auction Mart and Kibango Funeral Business Limited. The Appellant was not a party in Application No. 259 of 2017 however reading the records, that all the parties are or were involved in the claims related to the same subject matter Plot No. 2051 Block A formerly 226, Mbezi Juu, In Kinondoni District Dar es Salaam region, and the previous cases were determined by the DLHT to its finality and these are the same parties within the meaning of doctrine of res judicata irrespective of the shifting roles of the parties. In the case of Badugu Ginning Co. Ltd vs CRDB Bank PLC (supra) pg 24 abd 25 that the Court held that changing of parties or adding or subtracting them does really matter for the 14 doctrine of res judicata to apply as long as the subject matter is the same. The Court stated as follows; Mr. Kipejo argued that the parties in the former suit are not the same as in the subsequent suit because the 2nd and 3rd respondents were not parties in the former suit. By adding the 2nd and 3rd respondents in the subsequent suit does not change the fact that substantially parties in the former suit are the same parties in the subsequent suit. Therefore, we are unable to agree with Mr. Kipeja that parties are the same in the former and the subsequent suit" Therefore, it is my considered view that, Application No. 88 of 2023 was indeed a subset of the Doctrine of res judicata in other words "the was constructively res judicata as rightly held by the DLHT, a suit that sets to bar any claims being raised in a later proceeding if the claim on the same subject matter ought to have been raised and decided.>earte^*^^^ With respect to the fourth and fifth principle; i.e. the court which decided the previous suit must have been competent to try the subsequent suit and that the matter in issue must have been heard and ' finally decided in the former suit. The DLHT as submitted by the Counsel for the 1st Respondent was the right and competent Tribunal to try the cases and it finally determined them, whereby in Application No. 259 of 2017, the 1st Respondent prayed for an order to be handed over the disputed property and was granted and the Tribunal issued an execution order by way 15 Therefore, it was not appropriate for the Appellant to file another fresh Application to be declared the lawful owner of the same disputed proper which had already been handed over to the 1st Respondent. Therefore, this condition was also met. Having said so I hold that the DLHT was right to sustain the preliminary objections raised by the learned counsel for the 1st Respondent in Land Application No. 88 of 2023 as the matter was res judicata to Land Applications No. 256 of 2015 and 259 of 2017. The DLHT was thus functus officio to determine Land Application No. 88 of 2023. In view of the foregoing, therefore, I proceed to dismiss all the six (6) grounds of appeal as argued by the Appellant with costs. I uphold the ruling of the Tribunal in Land Application No 88 of 2023. Right of Appeal is explained. Order accordingly. Dated at Dar es salaam this 21st day of March 2024. S.D. MWAIPOPO JUDGE 21/03/2024 16