ceprina george mayomba vs orgenes mkoma and 3 others 2022 tzhc 15386 15 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA LAND APPEAL NO. 12 OF 2022 (Originating from the Land Application No. 11 of 2022, decision of Iramba Land and Housing Tribunal) CERPINA GEORGE MAYOMBA (Represented by Rebeka Lutheli Mkoma under the power of Attorney)....... APPELLANT VERSUS 1. ORGENES MKOMA —i 2. PAULINA YESAYA 3. BETHAISSACK |7......................... RESPONDENTS 4. HARUNAIDD 11/11/2022 & 15/12/2022 JUDGMENT MASAJU, J The Appellant, Cerpina George Mayombo (Represented by Rebeka Lutheli Mkoma under power of attorney), sued the Respondents Orgenes Mkona, Paulina Yesaya, Betha Issack and Haruna Idd before the District Land and Housing Tribunal for Iramba at Kiomboi (Land Application No. 11 of 2021) for recovery of 28 acres of Land, which land had also been a subject i of trial tribunal before the very trial tribunal in Land Application No. 3 of 2016 between the 1st Respondent, Orgenes Mkoma, versus the 2nd -4th Respondents, Betha Issack, Paulina Yesaya and Haruna Idd. Where the 2nd -4th Respondents were declared lawful owners of the suitland which had been allocated to them by Nkungi Village Council and upon finding that the 1st Respondent had no right over it. The decision was made on the 23rd day of March, 2017. The Decree thereof-was duly executed in favour of the 2nd - 4th Respondents as per Annex "PBH 1" & "PBH 2" to the 2nd -4th Respondents' Written statement of Defence on the 4th day of December, 2019. In the Land Application No. 11 of 2021 between the Appellant and the Respondents before the trial tribunal, the Appellant allegedly the wife of George Mayombo who testified as PW2 in Land Application No. 3 of 2016 before the very trial tribunal in support of the 1st Respondent, then Applicant, sued the Respondents allegedly upon being appointed administratrix of the estate of the late George Malleyeck Mayomba in Probate Cause No. 18 of 2019, Dongobesh Primary Court on the 13th day of January, 2020 as per Annexture JF1 to the Land Application. The Appellant in her pleadings states nowhere that she was the wife of the late George Mayomba and that she 2 was suing under the capacity of the administratrix of the estate of late George Malieyeck Mayomba. Neither did she so introduce herself before the trial tribunal in the Land Application No. 11 of 2021 between her and the Respondents but, thus, "CERPINA GEORGEMAYOMBA............................. APPLICANT (Represented by REBEKA LUTHEU MKOMA under power ofAttorney)" So the Annexture JF1 was not introduced by any pleadings by the Applicant in her Application. The 2nd - 4th Respondents in their joint written Statement of Defence raised two preliminary points of law thus, "a. That, Applicant has no locus standi to sue b. That, this suit is res judicata." The trial tribunal overruled the 1st preliminary point of law because it needed factual proof but sustained the 2nd preliminary point of law, that the Land Application No. 11 of 2021 was res judicata to Land Application No. 3 of 2016 before it, hence this appeal to the Court. The Petition of Appeal as lodged by Rebeka Lutheli Mkoma was made up of two grounds thus; "1. That the Honorable Chairman Erred in law and in fact for holding as he did that the LandApplication No. 11 of2021 is Re Judicarta (sic). 3 2. That the Honorable Chairman erred in taw and in factaftergranting the suitland to 2fd, 3rd and “fh Respondent basing on Hon. Lingweto decree dated 23/3/2016 which in fact did not deciares them as owners of the suitiand (sic)" The 2nd - 4th Respondents filed their joint Reply to Petition of Appeal contesting the two grounds of appeal. The 1st Respondent did neither enter appearance nor defend himself before the Court. The appeal against him was therefore heard ex parte. The appeal was heard before the Court on the 27th day of October, 2022 in the presence of Mr. Leonard Haule, the learned counsel, who appeared for the Appellant and the 2nd - 4th Respondents in persons. The learned counsel for the Appellant argued that the Land Application No. 11 of 2021 was not resjudicataXo Land Application No. 3 of 2016 before the trial court because in Land. Application No. 3 of 2016, the Applicant was Orgenes Mkoma, (The 1st Respondent) versus the 2nd - 4th Respondents. That in Land Application No. 11 of 2021 the parties are Cerpina George Mayomba (Applicant) versus the 1st - 4th Respondents. That, the parties in the two Land Applications were therefore different. Furthermore, that the Appellant Cerpina George Mayomba had never sued the Respondents previously. That, the subject matter of the dispute was different in terms of the boundaries but the size of the suit land was the same 28 acres. 4 As regards the 2nd ground of appeal, the learned counsel argued that in the Land Application No. 3 of 2016, the 2nd - 4th Respondents were not declared lawful owners of the suitland because the decree thereof did not so state though the contents of judgment thereof did so declare them. The k learned counsel for the Appellant prayed the Court to allow the appeal and order the Land Application be heard by another chairman of the trial tribunal. The 2nd and 3rd Respondents endorsed the 4th Respondent (Haruna Idd) to argue, the appeal for them as well. The 4th Respondent adopted the joint Reply to Petition of Appeal to form part of submissions against the appeal. He argued further that the trial tribunal in Land Application No. 3 of 2016 did declare them (The 2nd - 4th Respondents) lawful owners of the suit land, and that suitland (28 acres) has already been handed over to them vide Misc. Application No. 104 of 2019 before the trial tribunal for decree execution thereof. And that there was documentary evidence to that effect. He further argued that the subject matter of the trial in the two Land Application was one and the same (28 acres of land). That, the dispute was the same between the same parties. The Respondents prayed the Court to dismiss the appeal with costs for want of merit. 5 The learned counsel for the Appellant in reply, maintained his submissions in chief as he submitted accordingly. He once more prayed the Court to allow the appeal so that the parties can be heard on the impugned Land Application. That was all by the parties for, and against the appeal. Res judicata is a statutory defence against suits and the courts in the United Republic are enjoined not to try suits which are resjudicata pursuant to section .9 of the Civil Procedure Code, [Cap 33 RE 2019] which reads thus; "No court shall try any suit or issue in which the matter directly and substantially In Issue has been directly ad 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" In the instant matter the 1st Respondent and the 2nd - 4th respondents were parties to Land Application No. 3 of 2016 before the trial tribunal where George Mayomba (PW2) testified for the 1st Respondent as Applicant then over the ownership of the suitland (28 acres). The trial tribunal declared the 2nd _ 4th Respondents lawful owners of the suitland since 1986 when the suitland was allocated to them by Nkungi Village Council. The trial tribunal questioned and doubted George Mayomba (PW2)'s ownership of the suitland 6 as it also decided that the 1st Respondent had no right over the suitland. The trial tribunal's judgment and decree thereof dated the 23rd day of March, 2017 was duly executed by the trial tribunal vide Misc. Application No. 104 of 2019 on the 4th day of December, 2019 as per Annexture PBH1 and PHB2 to the Respondents' Joint Written Statement of Defence to Land Application No. 11 of 2021 before the trial tribunal. The trial tribunal in Land Application No. 3 of 2016 apart from questioning the legality of George Mayomba (PW2)'s ownership of the suitland also advised him to sue the Respondents and Nkungi village Council on his own but subject to the law of Limitation Act, [Cap 89]. The Appellant, Cerpina George Mayomba, who now sues the Respondents allegedly under George Mayomba (PW2)'s title still faces the questions that were raised by the trial tribunal as regards George Mayomba's legality of ownership of the suitland, for the trial tribunal declared the 2nd - 4th Respondents lawful owners of the suitland. So, by virtue of the last part of section 9 of the Civil Procedure Code, [Cap 33 RE 2019] that the issue of ownership of the suitland has been raised and heard and finally decided by the trial court the subsequent suit over its ownership becomes resjudicata. Thus the Court is of the considered position that the trial court so rightly decided that Land Application No. 11 of 2021 was res judicata to Land 7 Application No. 3 of 2016. The trial tribunal's judgment dated 23rd day of March, 2017 in the former suit had neither been appealed against nor vacated by any court of competent jurisdiction. Secondly, so long as the suitland was allocated to the 2nd - 4th Respondents by the Nkungi Village Council in 1986, the said Respondents' occupation and ownership of the suitland were statutorily validated and confirmed. This is according to sections 15 and 16 of the Village Land Act, [Cap 114 RE 2019]. Thirdly, had the trial tribunal taken into account its previous observation/advice to George Mayomba (PW2) in Land Application No. 3 of 2016, on the liberty to sue the Respondents and Nkungi Village Council subject to the law of limitation, it could have decided that this subsequent Land application No. 11 of 2021 was time barred pursuant to section 52 of the Land Disputes Courts Act, [Cap 216 RE 2019] in terms of the Law of 1 Customary Law (Limitation of Limitation Act [Cap 89 RE 2019] and the Proceedings) Rules, 1964 which set timeline for a suit to recover land to twelve(12) years. The 2nd - 4th Respondents have been in occupation and use of the suit land since 1986, that is 35 years by the time the Appellant sued them on the 24th day of June, 2021. The trial tribunal should have dismissed the suit for want of time to sue under section 3(1) of Law of 8 Limitation Act, [Cap 89 RE 2019] as per section 52 of the Land Disputes Courts Act, [Cap 216 RE 2019], Lastly, the 2nd - 4th Respondents, so rightly raised the preliminary point of law that the Appellant lacked locus standi to sue them for and on behalf of the estate of the late George Malleyeck Mayomba, because, in her pleadings she neither stated that she was the wife of the late George malleyeck Mayombo nor there was documentary proof to that effect. Neither the pleadings state that she had been appointed administratrix of the estate of the late George Malleyeck Mayomba nor does she so introduce herself as party to the Land Application. There being MCA/63 Form amongst the list of documents to be relied upon by her alone without the same being pleaded does not make her qualify for suing as administratrix of the estate. Thus, the appeal is hereby dismissed in its entirety for want of merit. The parties shall bear their own costs accordingly. GEORGE M. MASAJU JUDGE 15/12/2022 9