Land Case No

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND CASE NO. 98 OF 2017 MAGRETH EPHRAIM KAWA................................................................................ 1STPLAINT JOHN J.H. NTAGWABIRA................................................................................... 2ndPLAINT JOSHUA S. KAZI................................................................................................. 3rdPLAINT VERSUS VICTOR RAPHAEL LUVENA................................................................... DEFENDANT RULING 6th to 12th September, 2024 E.B. LU VAN DA, J The Defendant above mentioned raised a preliminary objection that this suit is res-judicata as the there is Land Dispute No. 42 of 2013 in Kerege Ward Tribunal determined on 07/11/2013 and subsequent Land Appeal No. 28 of 2017 filed at Kibaha District Land and Housing Tribunal (DLHT) determined on 05/06/2017 on the same subject matter and same parties and their privies and the execution has been done on 27/12/2023 by the order of the same Kibaha DLHT in Miscellaneous Land Application No. 150 of 2023 and the Plaintiffs were parties and are aware. In that regard, the defendant prayed the Court to strike out the suit with costs. Mr. Daimu Halfani and Mr. Hamza Matongo learned Advocates for the Defendant submitted that there is Land Dispute No. 42 of 2013 Kerege Ward Tribunal i determined on 7/11/2013 and subsequently Land Appeal No. 28 of 2017 filed at Kibaha District Land and Housing Tribunal (DLHT) was determined on 5/06/2017 on the same subject matter and same parties and heir privies and the execution has been done on 27/12/2023 by the order of the same Kibaha DLHT in Misc. Land Application No. 150 of 2023 and the Plaintiffs were parties and are aware. They cited section 9 of the Civil Procedure Code, Cap 33 R.E. 2019; Daniel Lotta vs Gabriel Tanaki and Others [2003] TLR 312; Kamuya and Others vs Pioneer General Assurance Society Limited [1971] EA 263. They submitted that the subject matter in this suit is the same to the previous suit above mentioned, arguing that sale agreements tendered as exhibits in Land Dispute No. 42 of 2013 are the same annexed in the amended plaint. They submitted that in Land Dispute No. 42 of 2013 the Defendant was declared the lawful owner of the suit land which decision was confirmed by Kibaha DLHT in Land Appeal No. 28 of 2017, citing item 2 of the Defendants list of additional documents to be relied upon. They submitted that in Land Dispute No. 42 of 2013 the complainant was Mr. Victor R. Luvena who is the present Defendant herein, the Respondents were Magreth Ephraim Kawa, John J.H. Ntagwabira and Patrick Sipilian (Joshua S. Kazi) who are present First, Second and Third Plaintiffs. They submitted that before Kerege ward Tribunal, Mr. Patrick Sipilian 2 tendered sale agreement of Joshua S. Kazi and Joshua S. Kazi is privy to Patrick Sipilian. They submitted that in the Kerege Ward Tribunal, the dispute was about ownership which is an issue in the present suit. They submitted that Kerege Ward Tribunal was a competent land court to determine the dispute before it. They submitted that in execution done vide Misc. Land Application No. 150 of 2023 the building of Joshua S. Kazi was demolished. They submitted that it was improper to institute a fresh suit instead of appealing against the decision of the Kibaha DLHT in Land Appeal No. 28 of 2017 dated 5/06/2017, arguing this case was filed on 28/03/2017 while Land Appeal No. 28 of 2017 was pending. In reply, Mr. Khalid Muhidini Mfwangavo and Ms. Tully Kaundime learned Counsels for the Plaintiff submitted that the matter involved the present preliminary objection was already before this Court and was overruled on the 9/02/2024. They faulted the argument by the Plaintiff that this suit is res- judicata, for explanation that there is a significant distinctions between the previous and current suit. They submitted that if the subject matter in the previous suits are examined that is Land Application No. 42 of 2013 and Land Appeal No. 28 of 2017, the subject matter of the suit was a piece of land described as farm number 1553 Mapinga vide plan number E'64/18 to which the Plaintiffs has no interest but rather has expressed interest on distinct piece 3 of land described on annexure "A", "B" and "C" to the amended plaint filed on 4/07/2024. They submitted that the Defendants failed to prove any founded evidence to prove that indeed the geographical location of the property that is subject matter of Land Application No. 42 of 2013 and subsequently Land Appeal No. 28 of 2017 which is described as farm number 1553 surveyed with Plan number E'64/18 is similar or the same to the subject matter of Land Case No. 98 of 2017. They submitted that while it is acknowledged that some parties in the current suit were involved in the earlier disputes, it must be established that all parties and their privies were the same and that the issue are identical, citing George Shambwe vs Tanzania Italian Petroleum Company Ltd [1995] TLR 21. They submitted that a critical component is whether the parties in the current case are identical to those in the prior cases and whether they are bound by the previous judgments. They submitted that if there are new parties or if the role of existing parties have changed, res- judicata may not apply. They submitted that the argument that the current suit is barred by res judicata fails for explanation that the prior cases did not conclusively address the same subject matter. In rejoinder, the learned Counsel for the Defendant submitted that the Court of Appeal in its judgment dated 23/08/3023 nullified previous proceedings and quashed and set aside the ruling, orders and judgment and retained the 4 pleadings only. They submitted that on 9/02/2024 this Court did not determine the substance of the preliminary objection on res judicata for explanation that the decision of Kerege ward Tribunal was incomplete as some pages were missing. They argued that this Court maintained that the Defendant could raise it again when in opportune moment which is the present. They submitted therefore that the argument that the preliminary objection has been improperly raised by the Defendant is lacking merits. They maintained their argument that this suit and Land Dispute No. 42 of 2013 dealt with the same land and not different pieces of land. They submitted that the decision of Kerege Ward Tribunal in Land Dispute No. 42 of 2013 did not deal or address aspects of surveyed parcel of land as purported by the learned Counsel for the Plaintiffs, argued parties traced their respective root of titles by bringing evidence in the form of sale agreements entered with previous owners and witnesses familiar with the suit land, where the Kerege ward Tribunal declared the Defendant herein as the lawful owner. They submitted that in the present case the subject matter is the same land which was the subject in Karege Ward Tribunal. On my critical examination of pleadings the following facts have been enumerated: One, in Shauri la Madai Na. 42 of 2013 before Kerege Ward Tribunal parties were Victor R. Luvena Plaintiff who is the Defendant herein, 5 Magreth Ephraim Kawa, John J.H. Ntagwabira and Patrick Siprian were the First, Second and Third Defendant respectively. Magreth Ephraimu Kawa is the First Plaintiff herein, John J.H. Ntagwabira is the Second Defendant herein. At page twelve of Shauri Madai Na. 42 of 2013, the Ward Tribunal commented that in a sale agreement tendered by Patrick Siprian who was the Third Defendant therein, depict the purchaser is Joshua S. Kazi who is the Third Defendant herein. Therefore, the argument of the learned Counsel for Defendant that Patrick Siprian who was the Third Defendant in Shauri Madai Na. 42 of 2013 is a privy to Joshua S. Kazi who is the Third Defendant herein, is valid. Secondly, in the amend plaint the First Plaintiff attached a sale agreement dated 15/02/2003 (annexure "A") showing she purchased the suit land from Sultani Pazi Omari for TZS 200,000/=. The said document was subject for discussion in Shauri Madai Na. 42 of 2013 at page seven. The Second Plaintiff herein attached a sale agreement dated 10/10/2007 (annexure "B") showing that he purchased a suit land from Bw. & Bibi. Ringo Mohamed for TZS 500,000 along receipt No. 0890 dated 11/10/2007 (part of annexure "B") to the plaint. These documents were subject for discussion in Shauri Madai Na. 42 of 2013 at page ten. The Third Plaintiff attached a sale agreement dated 12/02/2010 (annexure "C") depicting he purchased a suit land from Mwanaidi Ally Mussa for TZS 1,000,000/= along a receipt No. 3938 dated 13/10/2010 (part of annexure "C") 6 to the plaint. These documents were discussed by the Ward Tribunal at page twelve of Shauri Madai Na. 42 of 2013. At the final verdict, the Ward Tribunal declared the Plaintiff therein who is the Defendant herein, as the lawful owner of the suit land, for reason that he was first to acquire that title. This decision was confirmed by Kibaha DLHT in Land Appeal No. 28 of 2017. It is to be noted that both Kerege Ward Tribunal and Kibaha DLHT were competent Tribunal to adjudicate the dispute before it. Therefore, having established that the subject matter claimed by the Plaintiffs in this suit is directly and substantially the same which was litigated by Kerege Ward Tribunal in Shauri Madai Na. 42 of 2013 between the same parties who were litigating before a competent Tribunal, in law this suit becomes res judicata. The law precluded Courts of law to adjudicate the suit founded to be res judicata. Section 9 of Cap 33 (supra), with margin res judicata, provides, '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' 7 The argument by the learned Counsel for Plaintiffs that this question was overruled by this Court on 9/02/2024, is untenable. On the alleged date, I ruled that I failed to decide on this point due non availability and incompleteness of the decision of Kerege Ward Tribunal (some pages were missing) and Kibaha DLHT was completely missing. As alluded by the learned Counsel for Defendant I did not rule on its merit of the preliminary objection. Therefore, the preliminary objection is well grounded and is accordingly sustained. 8