firista mstafa another vs elizabeth mpendakazi 2023 tzhc 22830 21 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF SUMBAWANGA

AT SUMBAWANGA LAND APPEAL NO. 31 OF 2023 (Arising from the District Land and Housing Tribunal of Sumbawanga in Land Application No. 7 of 2022) FIRISTA MSTAFA................... ................. .................. ........ ...... 1st APPELLENT NEEMA MSTAFA ................................ .............. ............ ....... 2nd APPELLANT

VERSUS ELIZABETH MPENDAKAZI.................... RESPONDENT 23/10/2023, 21/11/2023

JUDGMENT MWENEMPAZI, J: The appellants are aggrieved by the decision of the District Land and Housing Tribunal in Land Application No. 7 of 2022. In the application the appellants filed an application claiming for two acres alleging that the same have been encroached by the Respondent. The application was heard whereby the appellants testified as SMI and SM2 together with other two witnesses Raphael Sanga (SM3) and Paula Ntwenya (SM4). Page 1 of 7 In the evidence of by the Respondent she referred to a dispute she filed against the appellants7 mother, PW4 Paula Ntwenya that is Land Application No. 2 of 2012. The end result was that the respondent was successful. The respondent Paula Ntwenya and Richard Patrick appealed to this Court in Land Appeal No. 12 of 2012. The appeal was dismissed. In this appeal, appellants filed six (6) grounds of appeal which I wont reproduce them here for the reasons soon to be disclosed. Appellants and the Respondent were not represented. The appellants on the 29/09/2023 prayed to proceed with hearing by way of written submission. The Respondent objected. However, the appellants filed their written submission on 12/10/2023. There was no order to that effect as the appellants. However, when the appeal came for hearing I inquired to them on the merit of the case as whole following complaints by the respondent that she is being harassed. The respondent

informed this Court that she filed a suit and won but they are still suing her. I therefore ordered both parties to bring all documents pertaining to their dispute. They brought them on the 23/10/2023. Upon perusal of the same, Page 2 of7 I noted that in 2012 SM4 Paula Ntwenya together with Richard Patrick were sued successfully by the Respondent on the same subject matter, two acres of land at Mafulala area, Sumbawanga Municipality. Paula Ntwenya and Richard Patrick were ordered to leave vacant possession of the dispute land. The application was registered as Application No. 2 of 2012. They appealed to the High Court in Land Appeal No. 12 of 2012. The appellants filed an application No. 54 of 2017 to challenge the execution order in Land Application No. 2 of 2012. It seems they were not successful thus they applied for extension of time to appeal against ruling in Miscellaneous Land Application No. 04 of 2019. The application was granted but the available record is silent as to whether they filed an appeal or not/ However, there is a land application No. 7 of 2022. The parties are Ferista Mstafa and Neema Mstafa Versus Elizabeth Mpendakazi, whose decision is being challenged in this appeal. In the trial tribunal it was found that they had failed to prove their claims. To be honest, I find the case at hand to be unusual. What is clear however, the same area which was determined

in Land Application No. 2 of 2012 and Page 3 of 7 Land Appeal No. 12 of 2012 is the subject of utilization. Instead of Paula Ntwenye, her daughters decided to try their luck. They filed an application against Elizabeth Mpendakazi, the respondent herein. If we apply the principles of res judicata, it is clear Land Application No. 7 of 2022 is a different case. But instead of Paula Ntwenya, her daughters came forward, and sued the respondent. It was fair enough for her to complain that the case was decided in her favour and she is wondering why the appellants have come forward. In presence of Land Application No. 2 of 2022 and Land Appeal No. 12 of 2012, it was not right for the appellants to come out with the story that the dispute land belongs to them by reason that their mother gave them the land knowing that their mother SM4 - Paula Ntwenya, lost in the two cases above and she never appealed to the Court of Appeal of Tanzania . It is natural that all things must come to an end and legal disputes are no exception. It is a fundamental principle that a judgment that lapses into finality becomes immutable, unalterable and may no longer be modified. That is a principle of immutability of judgment. The principle was succinctly Page 4 of 7 described in the case of Jasbir Singh Pai & 3 Others Versus Tarlochan Singh Rai & 4 Others [2007] eKLR by Bos ire JA as follows: - "This is a

doctrine which enables the Courts to say litigation must end at a certain point regardless of what the parties think of the decision which has been handed down" The rationale behind the principle is twofold; one, to avoid delay In administration of justice; and thus procedurally, to make orderly the discharge of judicial business; and two, to put to an end to judicial controversies, even at the risk of occasional errors, which is precisely why courts exist. The exceptions to the rule are: one, the correction of clerical errors; two, the so called nunc pro tunc entries which cause no prejudice to any party; three, void judgments; and four, whenever circumstances transpire after the finality of the decision rendering its execution unjust and Inequitable, ('nuncpro toc'means now for then" used in reference to a judicial or procedural act that corrects an omission in record, has effect as of an earlier date, or takes place after a deadline has expired). Page 5 of 7 The appellants herein exchanged the position with their mother in order to change the finding of the Court in Land Application No. 2 of 2012 and Land Appeal No. 12 of 2012, which object failed hence this appeal. As it can be referred to the few cases referred in this decision, whose list is not exhaustive, indeed they are harassing the respondent. Had it that they firmly intended to change the course, they ought to have

appealed against the decision in Land Appeal No. 12 of 2012, that would have been done by their mother Paula Ntwenya the first appellant in the said appeal and SM4 in the Land Application No. 7 of 2022. There being no any plausible explanations to change the position of this Court, the application No. 7 of 2022 and this appeal is against the above referred principle and an abuse of Court process. At this juncture I feel compelled to borrow the statement by Honourable Justice Mr. Mwila Chitabo, Sc in the case of John Menyani Phiri (chief Mafula) and Fredrick Daka (Paramount Chief Kalonga Gaw Undi)z High Court of Zambia at Lusaka 2017/HP/2069 where he observed that: "Litigations must come to an end and successful parties must enjoy the fruits of theirjudgment". Pages of 7 Having said as I have done, I see no point to deal with the merit of an appeal as appellants came up to circumvent the procedure as laid down by the law by changing position with their mother so that she becomes a witness while she knew she failed to defend her position in Land Application No. 2 of 2022 and Land Appeal No. 12 of 2012. The appeal therefore is dismissed with costs. It is ordered accordingly. Judgment delivered in the present of the appellants and the respondent this 21st day of November, 2023. T.M. MWE PAZI

JUDGE Page 7 of 7