LAND APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA LAND APPEAL NO. 26 OF 2023 (Arising from Land Application No. 110 of 2018 at the DLHT for Mtwara at Mtwara) FADHILI MOHAMED HASSAN —...... -. —............. - - - APPELLANT

VERSUS ALLY DADY MAGOMA .....................................-........... V* RESPONDENT NAMIC INVESTMENT COMPANY LIMITED..................... 2^ RESPONDENT ASHA AHMAD MUSSA................................ -.......... —- 3rd RESPONDENT Date of last Order; 30.05.2024 Date of Judgment: J9.07.2024

JUDGMENT Ebrahim, J.: The Appellant has filed the instant appeal raising three grounds of appeal as follows; Page 1 of 11 i. That the trial Chairperson erred in law and facts by dismissed (sic) the matter on the ground of res judicata from Land Case No. 0014/2016 of Mtonya Ward Tribunal while if is different in facts, parties, and title at issue; 2. That the trial Chairperson erred in law and fact by failing to interpret the context of res judicata; 3. That the trial Chairperson erred in law and facts without considering that the appellant bought the suit property from a third respondent who was the administrix of the estate of the late Juma Ali Simba. The matter has a chequered background. In 2016 vide Land Case No. 0014/2016, the 1st Respondent instituted a suit against one Omary Mohamed Trafic before the Ward Tribunal for Mtonya claiming to be the owner of the suit land haying purchased it from the 3rd Respondent. After a full trial, the trial tribunal decided in favour of the 1st Respondent by declaring him the lawful owner of the suit land. In 2017 1st Respondent filed Misc. Application No. 163 of 2017 before the District Land and Housing Tribunal for Mtwara at Mtwara for execution. The execution order was granted and the demolition and eviction Page 2 of 11 orders were issued against one Omary Mohamed Trafic (Judgment Debtor). in 2018 vide Land Application No. 110 of

2018, the Appellant instituted the land application before the District Land and Housing Tribunal for Mfwara at Mtwara claiming the suit land to be his having purchased it from the 3rd Respondent. The application was decided against the Appellant. Aggrieved, the Appellant instituted the present appeal. This case proceeded exparte on the part of the 2nd Respondent. The Appellant, 1st Respondent and 3rd Respondent appeared in person unrepresented. In elaborating: his grounds of appeal, the appellant prayed to adopt his grounds of appeal and added that he was the only person who was heard before the Tribunal but other parties were not heard. He said other parties did not present their case in court and the chairman just asked them questions. He submitted also that the person who sold him the suit land admitted to have sold it to him. The Appellant went further contending that he tendered the relevant documents and the 3rd Respondent who sold the land to him tendered her letter of appointment as an administrator of the Page 3 of 11 deceased estate before the Tribunal. He further submitted that he had been using the suit land for two years and built q house to a roofing stage but there was no dispute until 2018. He therefore prayed for the Court to reverse the decision of the DLHT, In response, the 1st Respondent submitted that what was submitted by the Appellant was not true due to

the reason that he adduced his evidence before the Tribunal. He explained that the 3rd Respondent admitted to have sold the suit land to the Appellant but he also tendered exhibits at the Tribunal which were used to form basis of the decision. He said the exhibits showed that the 3rd Respondent sold the suit land to him in 2014 whilst the ones by the Appellant show that he purchased the suit land in 2016. He further contended that the appellant instituted a suit after he had filed execution before the Tribunal. He was thus of the views that the instant appeal has no merits. The 3rd Respondent submitted that she sold the suit land to the 1st Respondent and her son told her to sell the suit land again to the Appellant. She fold her son she had already sold it. Page 4 of 11 In a brief rejoinder, the Appellant told the court that the 1st Respondent admitted that the suit land was sold to him and reiterated his submission in chief. I have considered the submissions by the parties and visited the records. The issue for determination is whether the trial Tribunal was justified to hold that the matter was res-judicata. This was the only issue considered and determined by the trial Chairman. According to the records of the Tribunal records the issue was raised suo motto. The Chairman was therefore obligated to consider the raised issue as such and not the merits of the case. The

doctrine of res-judicata essentially prohibits a court of law from entertaining a matter that has already been decided by a competent court, as between the same parties regarding the same subject matter; - Section 9 of the Civil Procedure Code, [Cap. 33 R. E. 2019], See also the cases of Nyabichune Village Council vs Marwa Mang'era Kesongo (Land Appeal 90 of 2020] [2021 ] TZHC 4130 (22 July 2021). From the provision of section 9 and the above cited case, it is insisted that the conditions for res-judicata must co-exist for it to bar a subsequent suit. The conditions are: Page 5 of 11 (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. (Hi.) The parties must have litigated under the same title in the former suit. (iv.j The court which decided the former suit must have been competent to try the subsequent suit. (v.) The matter in issue must have been heard and finally decided in the former suit. It is well-settled that for the plea of res judicata to operate, the five conditions stated above must be proved. Its object is to bar the multiplicity of suits and guarantee finality to litigation. Res-judicata concludes a final judgment between the same parties or their privies on the same issue by a

court of competent jurisdiction in the subject matter of the suit. In the case at hand, there is no dispute that the subject matter in Land Case No. 0014 of 2016 is the same as in the current suit. Page 6 of 11 The issue is whether the parties are the same or are claiming under the same title. Let me commence with who were the parties in Land Application No. 110 of 2018 in the DLHT and the subject matter of this appeal. In the previous application, the Applicant was Fad hili Mohamed Hassan. The Defendants were (.i) Ally Dadi Magoma, (ii.) Namic Investment Company Limited, and (ni) Asha Ahmad Mussa. in his Ruling the Chairman of the Tribunal stated thus; “I have gone through the pleadings, parties' submissions, ruling of this Tribunal in Misc. Application No. 163 of 2017, demolition and eviction order and a notice of demolition; my finding is affirmative on the issue framed above that the current land application is res Judicata as per s. 9 (supra). I find so because of the following reasons: One, the suit land which is a subject matter in the present land application is the same suit land in land case no. 14 of 2016 before Mtonya Ward Tribunal, whereby the Ist respondent, Ally Dadi Magoma sued Omari Mohamed Trafic for the recovery of the same. In that land case, Ally Dadi Magoma (the 1st respondent was declared the lawful owner of the suit land) and he applied for the execution

of the decree to this Tribunal in Misc. Application No. 63 of 2017) which was granted (S. H. Wambili - Chairman). Thereafter, Omari Page 7 of 11 Mohamed Trafic was evicted from the suit land, and the same handed over to the lsf respondent. Though parties have changed in the present application still the current matter is res judicata because the suit land is still the same. Two, Omari Mohamed Traffic did not appeal against the decision of the trial Tribunal and also, there was no application for revision which was filed by the applicant to this Tribunal. This means that the decision of Mtonya Ward Tribunal binds Omari Mohamed Traffic and his privies including the applicant herein, Therefore, the applicant is barred by the principle of res judicata under s. 9 (supra) to re-litigate the land dispute over the same piece of land (the suit land) twice. Interestingly, the applicant and the 3rd respondent have not disputed that the suit land in the previous land case in Mtonya Ward Tribunal is the same as in this application; they have only contended that they did not know if there was a land case decided by Mtonya Ward Tribunal over the suit land. The contention which has been refuted by the I# respondent who contended that the applicant is a brother of Omari Mohamed Trafic and he knew that land case which was decided by Mtonya Ward Tribunal, and the 3rd respondent appeared as a

witness in the land case before Mtonya Ward Tribunal. Page 8 of 11 That said and done and for the reasons endeavored above; I find that the current land application is res judicata to land case no. 14 of 2016 which was determined by Mtonya Ward Tribunal on 27/06/2016. In the premises, I hereby dismiss the present land application with costs for being res judicata." With respect, I asked myself a question- who were the parties in the Ward Tribunal of Mtonya in Land Case No. 0014 of 2016 and Misc. Application No. 163 of 2017? Were the proceedings in this case admitted in evidence in Land Application No. 110 of 2018 in the DLHT? These are facts that will have to be established by evidence during the trial in the District Land and Housing Tribunal. Having gone through the two Tribunal records I came to realize that at the Ward Tribunal of Mtonya, the matter was between Aly Dadi Magoma against Omari Mohamed Trafic and the matter instituted at the District Land and Housing Tribunal for Mtwara at Mtwara was between Fadhili Mohamed Hassan against Ally Dady Magoma, Namic Investment Company Limited and Asha Ahmad Mussa. It is also on record that the 2nd Respondent issued a notice to Omari Page 9 of11 Mohamed Trafic for his intention to evict him and demolish his house under the order issued by the DLHT vide Misc. Application No. 163 of 2017. The Appellant sued Ally Dady Magoma, Narnia

Investment Company Limited, and Asha Ahmad Mussa in 2018. It is evident from the record that the Appellant, 2nd and 3rd Respondents were not party to the suit in the Land Case No. 0014 of 2016. Thus, the Appellant, 2nd and 3rd Respondents were different legal persons capable of suing and being sued. Thus, when the Appellant sued the 1st, 2nd, and 3rd Respondents over the suit land, it were different legal persons. As pointed out above, the parties to the suit in Land Case No. 0014 of 2016 and Land Application No. 110 of 2018 were different. For that reason, 1 find that one of the elements of res-judicata is that the former suit must have been between the same litigating parties or between parties under whom they are privy which it was not established. Consequently, Land Application No. 110 of 2018 was not res-judicata. I allow the appeal, quash the order of the DLHT dismissing the application for being res-judicata, order Land Application No. 110 of Page 10 of 11 2018 be heard on merit. Given the circumstance of the case, I give no order as to costs. Ordered accordingly. R.A Ebrahim Judge. 19.07.2024 Mtwara. Page 11 of 11