20180417 TZHC Dodoma

,~J .-~ •-JlliiillillMI 4i IN THE HIGH COURT OF TANZA~IA (DODOMA DISTRICT REGISTRY) AT DODOMA LAND REVISION NO. 04 OF 2017 (Arising from the Land Review No. 1/2016 of the District Land and Housing Tribunal for Dodoma at Dodoma, originating from Land Application No. 97/2013 in the District Land and Housing Tribunal for Dodoma at Dodoma). CHISULIGWE CHIDOGI .................... .................................. APPLICANT VERSUS -- - - - - - - -- --· -- - -- - - -- - - - - - ·- - - - ·- - -· - -- - ·- - - - .... ~ - -- --- - NASSAR ALLY PAWAGA (Administrator of the Estate of the Late Ally Ahmed Pawaga) .......................................... RESPONDENT 13/02/2018 & 18/04/2018 -H. H. KALOMBOLA,J.:- - -- - - - - CHISULIGWE CHIDOGI (Applicant) filed a Chamber Application under Section 41, 43,(1) (a), (2) qf the Land Disputes Courts Act, 2002 asking for the following orders·::- 1 1. That, this Court be pleased to revise, quash the decision and order of the District Land and Housing Tribunal for Dodoma at Dodoma to the Review No. ; 01 of 2016 originating from Appliqation No. 97 of 2013 the order of which was delivere~ on 08/02/2017 H.E. l Mwihava, Land Chairman and• set aside the said orders as it shall deem fit. 2. Costs of this suit be provided for. 3. Any other relief (s) this Court may deem fit and just to grant. This application is supported by a sworn affidavit of Zakayo Ezekiel Njulumi who is the Counsel of the applicant. ~-.~. __ ·---._Lo _r_e_ply_Jbe___r_e_spo_ndeoJ_file_d __c_ouote.LAffid.avLLJbr.oJlgb__bis____ _ advocate Burton A. Mwasomola. The application was disposed by way of written submissions as follows:- - ~ _____.ApplLconf_stale_d_tbof_be_w_as_tb_e_fse_s_p_o_ode_oj_ia___Lo nd -.~ _ Application No. 97 /2013 in the District Land and Housing Tribunal for Dodoma which application was dismissed on 2/12/2013 by R.S.S. MANDARI, Chairman for being res-judicata as the same had already been determined by Pandambili Ward Tribunal. ··-·· -- - - -A-ggrieved-- by--this- decision,-the-respondent -:filed--l:.011d- Gas-e--- - Revision No. 1/2014 before the High Court Dodoma which was dismissed for want of prosecution. 2 From here, the Respondent filed Misc. Application in the District Land and Housing Tribunal for Dodoma in order for the Tribunal to review its dismissal Order in Applic_ation No. 97 /2013. It is their submission that since the High Court dismissed Land Case Revision No. 1/2014 for want of prosecution then the said application for Review was res judicata. Th~refore the Tribunal was wrong when it proceeded to determine :the application and order Application No. 97/2013 be restored ( as per its ruling dated 8/2/2016). Hence the ruling in Memorandum of Review No. 1/2016 was obtained in error. It is further submitted if the respondent was aggrieved by the dismissal order of the High Court was supposed to apply for the said order be set aside l inst~qg__Qf _going bac~JQ ask_!~r _orders in app~-i~<?!i?~ _ No. 97/2013 where the Tribunal was functus officio. They fortified this position with the case of LEAM THONGRICE COMPANY LTD YRS PRINCIPAL SECRETARY, MINISTRY OF FINANCE [2002] T.L.R. Civil Appeal NO. ______9~lL1998. On the issue of res judicata, it is their submission that since there was no appeal nor an application to set aside the dismissal ' order, then Memorandum of Review No. 1/2016 is res judicata as per Section 9 of the Civil Procedure Code as it is also explained in the case of ESSO TANZANIA LIMITED YRS DEUSDEDIT RWEBANDIZA KAIJAGE [1990] T. L. R. For the above reasons, they submit that the errors by the Tribunal to review Application No. 97 /2013 contain material 3 irregularity manifest on the face of record thus it is for the interest of Justice for this Court to call for and insp~ct the records and allow this application with costs. On the other side the respondent submitted that it is true he 'i filed Land Case Revision No. 1/2014 beforet the High Court of Dodoma and the same was withdrawn by hjm through a letter dated 7/12/2015. That the withdrawal was \made under Order XXIII Rule 1 and 2 (b) of the Civil Procedure Code. That he filed Application for review because the District Land and Housing Tribunal Suo moto dismissed Application No. 97 /2013. for :reason of been res judicata. It is their submission this was a misconception of the said maxim as stipulated under Section 9 of ________ tb_e~C_i\l.il~Procedure Code since the said Apglication was never determined in a Court competent to try involving the same parties. It is further submitted, an application for Review is different ______f[om_ap_plication fo~a~_evision. The former lies where an aggrieved party seeks from Court which passed the judgment on account of some mistake as per Section 78 and Order XLII Rule 1 (1) (b) of the Civil Procedure Code while the later lies where an aggrieved party seeks a redress where there is an -- error -of- records · or -irreg-ularities- under Sect_ion 79 -of- the - Civil Procedure Code to the High Court. It is submitted further that the issue of res judicata was not an issue in the District Land and Housing Tribunal for Dodoma 4 since it was resolved during the hearing of the Memorandum of Review No. 1/2016 whereby the parties consented to proceed to i 1 dispose of the matter by way of written submission. That 1n i Memorandum of Review No. 1/2016 the Tribuhal discovered that ~ it misdirected itself when it ruled that Appl!cation No. 97 /2013 was res judicata as per Section 9 of the CiV;il Procedure Code, while parties in Pandambili Ward Tribunal we~e not the same as I the Respondent had no locus standi since the estate at dispute belonged to the late Ally Ahmed Pawaga. ~ence all what was sought before Pandambili Ward Tribunal was · null and void. It is submitted, applicant's counsel misdirected himself for citing the case of LEAM THONGRICE (Supra) as the facts differ with the present case, while that case dealt: with an application ----- to set aside ~~-parte fudgment~h-e-appelleA-t-opplie_d~to~store ~ ----~- the exparte judgment after the parties failed, to re-negotiate on I I the decretal amount. The application in that . case was filed in the same Court while in the present case th. e Review was filed ---~~--=-~--;-:---;---.-~- r in the Court which passed an orcter-for-dis-missoLand_the Revision was filed in the High Court. Basing on the reasons they pray the Application be dismissed and allow the District Land an_d Housing Tribunal • pr:oc.e_e_d with the hearing Application No. 97/2013. I have heard views from both siaes, :tn-the-firs-t-ploce_l differ with applicant's position that Memoran_dum of Review No. 1/2016 is res judicata as there was an Application for Revision No. 5 1/2014 which was filed to the High Court which was dismissed for want of prosecution. I say so because Section 9 of the Civil Procedure Code is meant for a situation w~ereby a trial was conducted and determined by a competent Court. In the present case, the High Court did not hear : and determine the ' application for Revision on merits as it dismissed the same for want of prosecution. Much as I have gone through both sides submissions and the records of the District Land and Housing Tribunal, I do not agree with the applicant's submission that the matter which is proceeding at the District Land and Housing Tribunal is res judicata. This is so because Land Revision No. 1/2014 which the __applicant made reference to was dismissed for want of prosecution, it means- H was- not heard-- -on merits.__ Therefore a principle of res judicata can not apply and the authorities cited in the applicants submission are irrelevant. In order for the . __ ---~----~-principle - - - -- -- - -- - - to- apply, the ingredients as provided under Section 9 of the Civil Procecfure~ Coae ~ rrmst ~ fee-t-\:Jr:e--os. __ Jbe said Section ----------- provides:- " No Court shall try any suit or issue in a former suit between the parties or between parties under whom ----- - - - --- ___ _________ tt,~y_ ~r any of them claim litigating under the same title in a Court -;;ompeteiif-fcYlry -s·t1ch- -issue---has b_e_e:n __ ' consequently raised and has been heard and finally decided by such Court." 6 Looking at Section 9 cited above, reference is made to a situation where a trial was conducted and_ finally decided . In Land Revision No. 1/2014, there was no trial ;rather there was a dismissal order. In the premises the applicant }s not correct in his ' submission when he said the respondent erred in filing Misc. application in the District Land and Housing Tribunal for the Tribunal to review its dismissal order in Appl}cation No. 97 /2013 while knowing that the matter has already been dealt by the High Court in Land Revision No. 1/2014 thus making the matter before the Tribunal as res judicata. Further on an issue that there are irregularities in Application No. 97 /2013. I have noted from the record that the Tribunal granted the Application for Review No. 1/2016 after it discovered new fact that the matter was not heard before Pandambili Ward Tribunal as it was alleged. That is why the record further show, the Tribunal commenced hearing and both sides of the case a_gt)eared~for hearing with their sounsel~ the ~otter \Yent as far as hearing of defence { applicant's) case, the applicant has already testified as well as his witness. In order to see that justice is done and to avoid unnecessary delay of determination of the dispute, this Court finds the application devoid of merits, the file be remitted back to the trial Tribunal i.e the District Land and Housing Tribunal for I Dodoma for continuation of hearing the matter on merits. lncase I any party is aggrieved, an appeal would be preferred. 7 The application is dismissed with costs. Ordered accordingly. 8 "' . ,r -, ' ' "' DATE: 17/04/2018 Coram: Hon. Madam H.H. Kalombola,J. Applicant: - Present Mr. Mcharo adv. - Present Respondent: - Absent Mr. Mwasomola adv- Present. C/c: ljinji COURT Ruling read today 17/4/2018 in the presence of the Applicant and his Counsel Mr. Mcharo. Mr. Mwasomola, advocate is -19resent -fGr the res . L Respondent is abs~Dt. ~c ~~-~ . "' > ~·,'1 ' .-~, .. I, 0 h vL.4{ KALOMBOLA) _JUDGE_ 7/04/2018 9