dickson gabriel and another vs oscar g kabaguzi 3 others 2022 tzhclandd 372 31 may 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM LAND APPEAL NO. 182 OF 2020 (Arising from Land Appiication No.7of2019 ofthe District Land and Housing Tribunaifor Temeke) DICKSON GABRIEL 1®^ APPELLANT MARIA MMAMBIA KABAGUZI 2^° APPEALLANT

VERSUS OSCAR G. KABAGUZI 1®^ RESPONDENT JAMES JACKSON MARO .2^° RESPONDENT HARROLD DAVID MUSHI 3'"' RESPONDENT ULRICK JOHN SHIRIMA 4™ RESPONDENT

JUDGMENT Date ofLast Order:10.05.2022 Date ofJudgment:31.052022 T. N. MWENEGOHA,J. The instant appeal is based on the following grounds; - 1. That, the learned trial chairman erred in law and fact by sustaining a preliminary objection and dismissing the application on the ground that it is res judicata while disregarding the provisions of Order XXA Rule 62ofthe Civil Procedure Code, Cap 33 R. E. 2019; 2. That, the learned trial chairman erred in law and fact by holding that, pursuant to decision of the trial District Land and Housing Tribunal in Misc. Land Application No. 254 of 2015 and the decision of the High Court in Land Appeal No. 94 of 2009, the case against the respondent had been wrongly filed afresh by the Appellants; 3. That, In the circumstances of the case, the legal ownership that was claimed by the appellants against the respondents over the landed property had not been finally to have held that the matter In controversy was not res judlcata for determination of the same between the appeallant and Respondents. The appeal was heard by way of written submissions, Method K Gabriel, learned counsel appeared for the appellants while Advocate While William Mosabi represented the respondents. The appellant conceded to the appeal. In his submissions in support of the appeal the appellants counsel consolidated all three grounds and argued them together. He insisted that,

in terms of section 9 of the Givil Procedure Code, Chapter 33 R. E. 2019,the case before the District Land and Housing Tribunal for Temeke vide Land Application No. 7 of 2019 was not res judlcata. That, the former case the appellant was not a party to the said case which concerned objection proceedings (Misc. Application No. 254 of 2008). That, the dismissal of Misc. Application No. 254 of 2008 which was insistuted by the 2"^^ appellant do not preclude her from instituting a fresh suit. That is what was done by the appellants by filing Land Application No. 7 of 2019. That, under Order XXI Rule 62 of the Civir Procedure Code, Cap 33 R.E. 2019, the appellant was right to file a fresh suit. In reply, the counsel for the 2"^ to 5^^ respondents maintained that, the trial tribunal was right in deciding that the case was res judicata. That, the appellants are trying to mislead the court that the former case was in respect of objection proceedings while It was not. The same was filed under Order XXI Rules 64 and 88(1) and other enabling provisions and concerned the sale of the suit property. That, objection proceedings are filed under Order XXI Rules 57, 58, 59, 60, 61 and 62. Therefore in absence of any objection proceedings made by the 2^^ appellant, she cannot exercise the right of instituting a fresh case against the respondents. The application of Order XXI rule 62 Is only when

the former case was on objection proceedings. In his rejoinder, the appellants counsel insisted that, the 2"^ appellant's failure to cite properly the enabling provisions for objection proceedings didn't legally vitiate the said application not to amount to objection proceedings. Having gone through the submissions of parties through their respective counsel and the records from the lower tribunal, the issue is whether the appeal has merit. The root of contention in the instant appeal is the decision of the trial tribunal to agree with the respondents in their objection that the case before it is res judicata. It is due to the act of the 2"^ appellant who formerly insistuted a case at the said tribunal vide Misc. Application No. 254 of 2008. The arguments of the appellants were that, the said case concerned objection proceedings, hence the appellants have rights under Order XXI Rule 62 to institute a fresh case. The respondents opposed this argument and insisted that, the said case was not about objection proceedings rather it challenged the sale of the suit property. iV To resolve the issue, I went through the former case, Misc. Application No. 254 of 2008. The same was instituted under Order XXI Rule 64 and 88(1) of the Civil Procedure Code, Cap 33 R. E.

2019. For easy reference I will reproduce the said provisions as foiiows:- 64 "Save as otherwise prescribed^ every safe in execution of a decree shaii be conducted by an officer ofthe court or by such otherperson as the court mayappointin this behaif, and shaii be made by public auction in the manner prescribed." 88.- (1) "Where any immovable property has been soid in execution of a decree, the decree-hoider, or any person entitled to share in rateable distribution of assets, or whose interests are affected by the saie, may apply to the court to set aside the saie on the ground ofa material irregularity or fraud in publishing or conducting it." Looking at the two provisions as quoted above, one cannot say that the are about objections proceedings. As argued by the counsel for the 2"^ to 5^"^ respondents, the said case aimed at challenging the saie of the suit property. The contention by the appellants that it was about objections proceedings is misconceived. The records are dear that the said case had nothing to do with objection proceedings, therefore, the appellants cannot take shelter under Order XXI Rule 62 and institute a fresh case. Under the said provision it has been stated that; - "Where a claim or an objection is preferred, the party against whom an order in made may institute a suit to establish the right which he daims to the property in dispute, but, subject to the

result ofsuch suit, ifany, the order shaii be conclusive. Therefore, it was wrong for the appellants to Institute a new case which has the same subject matter, parties and reliefs already determined In Misc. Application No. 254 of 2008. This was only possible If the former case was for objection proceedings. Therefore, the findings of the trial tribunal In respect of Land Application No. 7 of 2019 was correct, the same Is resjudlcata. Hence this appeal Is devoid of merits. The three grounds of appeal are rejected and the Appeal Is dismissed with costs. The decision and orders of the District Land and Housing Tribunal for Temeke District are hereby upheld. Right of Appeal Explained. T. Oki^WENEGOHA

JUDGE 31/05/2022