free pentecostal church of tanzania fptc usinge vs nabisu buda 2022 tzhc 15231 13 december 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT TABORA LAND APPEAL NO. 1.9 OF 2020 (Originated from Miso. Land Application No.71 of 2017 Tabora Land and Housing Tribunal) FREE PENTECOSTAL CHURCH OF TANZANIA(FPTC) USINGE.............. ............. ..........APPELLANT VERSUS NASIBU BU DA.......... ............ ..RESPONDENT JUDGMENT Date of Last Order: 04/11/2022 Date of Delivery: 13/12/2022 AMOUR S. KHAMIS, J: This is an appeal against the decision of the District Land and Housing Tribunal for Tabora in Misc Land Application No. 71 of 2017. At the Trial Tribunal, the appellant filed an application for execution of order of the District Land and Housing Tribunal in Land Application No. 48 of 2013 which ordered the boundary of the disputed land to be set where the latrine end on the North and to straighten the boundary from East to West. The application for execution was objected by the respondent on the ground that the application was vague to the extent that, 1 the High Court of Tabora had directed the Judgment debtor to demolish just part of the piece of the land in dispute not as claimed by the Decree Holder. Upon hearing both parties the trial Tribunal Chairman dismissed the application for execution on the ground that the matter was finally determined by the decision of High Court Tabora on 29/10/2012 in Land Appeal No. 32 of 2009 by Hon. Rumanyika, J. (as he then was) and execution in respect of the said decision was done on 14/08/2013. The Trial Tribunal held further that it was wrong for the appellant to file new case Land Application No. 48 of 2013 after execution of the Order of Hon. Rumanyika (as he then was) as it was contrary to the requirement of section 9 of the Civil Procedure Code Cap 33 R.E. 2019 since the matter was resjudcata. The appellant felt aggrieved. Hence lodged this appeal and raised three (3) grounds of appeal as follows: - 1. That the Learned Chairman of the Tribunal erred both in law and facts iri holding that the execution against the respondent had been finalized by the High Court on 29/10/2012 while the order sought to be executed by the appellant against the respondent was given on 2 28/02/2017 by the District Land and Housing Tribunal ofTabora in Land Application No. 48 of 2013. 2. That the Learned Chairman of the Tribunal erred in law in applying the principle of Res judicata against the Appellant. 3. That the Learned Chairman of the Tribunal erred in law when he visited the locus in quo in the presence ofthe respondent only but in the absence of the Appellant and without notice of such visit being served on him. In this appeal Mr. Mugaya Kaitila Mtaki, learned advocate, stood for the appellant whereas Mr. Lucas Ndanga, learned advocate, appeared for the respondent. Pursuant to the order of this Court dated 21/9/2022, the appeal was disposed by way of written submission. I am grateful to both parties for complying with the schedule set and file their submission on time. In support of the 1st and 2 nd ground of appeal, Mr, Mtaki was of the view that the trial Tribunal was wrong to raise the issue of res judicata and hold that the execution against the respondent was already finalized by the High Court on 29/10/2012. 3 He argued that following the order of the High Court in land Appeal No. 32 of 2009 Hon. Rumanyika, J. (as he then was) the respondent’s latrine pit was demolished vide the Tribunal Broker one Kumepambazuka Auction Mart and Court Broker. But once again the respondent constructed another pit latrine on the appellant’s land. It is the appellant’s submission that this was a new trespass that prompted the appellant to institute Land Application No. 48 of 2017 at the District Land and Housing Tribunal for Tabora and the Tribunal Chairman on 28/2/2017 entered judgment in favour of the appellant. He argued that in the cause of executing the above decree dated on 28/2/2017 the appellant application was dismissed on the ground that it was res judcata. It is the appellant submission that the trial Tribunal Chairman misdirected himself in holding that the Land Application No. 48 of 2013 from which Land Application No.71 of 2017(application for execution was res judicata. He referred this court to the case of National Bank of Commerce Vs. Cosmas M. Mkuoji (1986) TLR 127(HC) it was held at page 130 that 4 '‘This application would not have been res judicata as the matter in the former application concerned a different matter.” As to the 3rd ground of appeal, Mr. Mtaki argued that the Trial Tribunal conducted visit at the locus in quo in absence of the appellant and without notice. He complained that this was irregularity and highly prejudicial to the appellant. He contended that it is a discretion of the court to visit locus in quo but the law requires the court of Tribunal to observe the proper procedures as indicated in the case of Nizar M.H. Ladak Vs. Gulamal Fazal Jonmohamed(1980) TLR 29. Basing on the above authority, it is the appellant’s submission that the trial Tribunal Chairman failed to observe the procedure for visiting locus in quo. He therefore, prayed for the court to allow this appeal and set aside the ruling and order made inn Misc. Land Application No.71 of 2017. By way of reply, Mr. Lucas Ndanga, Learned Advocate disputed the appellant’s submission in regard to the 1st ground of appeal. He contended that the trial tribunal was proper in its decision because the matter had been finally determined by the higher court therefore it is unprotocal for the lower court or Tribunal to reajudicate. 5 He added that since the execution which took place on 29/10/2012 was finalized by the High Court, therefore this no reasonability of arguing against the said decision. Responding to the second ground of appeal, Mr. Ndanga strongly disputed the contention that the trial Tribunal was wrong to apply the principle of res judicata. He argued that both parties in this matter were tackling in four areas namely, boundary, anthill, pungent smell of the pit latrine to worshipers of Pentecostal Church and trespass of a portion of land. Reference was made to the case of Nelson Mrema and 143 others Vs. Kilimanjaro Textile Corporation LART as the Liquidator and Minister for Labour and Youth Development Civil Appeal No, 22 of 2002 CAT (Dar es salaam Registry) (Unreported). Responding to the third ground of appeal, Mr.Nganga it is not true that the appellant was neither present nor notified. Basing on his submission the respondent’s Learned Advocate prayed for the court to dismiss this appeal with costs. Having considered the submission fostered by both parties together with entire record of this appeal, I will determine the 1st and 2nd ground of appeal, altogether as they touch on the issue whether the trial Tribunal chairman was proper to dismiss the & application for execution on the ground that the order subject to the application for execution was res judicata. Upon perusal on the record, it is undisputed fact that there is no dispute that there was existence of Misc. Land Application No. 29 of 2009 before District Land and Housing Tribunal which gave rise to Land Appeal No. 32 of 2009 which was determined by Hon. Rumanyika as he then was) and the order thereto was executed on 14/8/2013 whereby the pit latrine was demolished. After demolition of the pit latrine as executed on 14/8/2013, the appellant successfully filed Land Application No. 48 of 2013 claiming that the respondent has again invaded his land and built therein a structure. During execution the appellant application was dismissed on the: ground that it was resjudicata. Basing on the above historical background of this case, I wish to incline with the appellant submission that it was wrong for the Trial Tribunal to apply principle of resjudicata in the application for execution that was before him. I am holding so because, it was not: proper for the trial tribunal to re- open the case which was already determined by its own court by his fellow Tribunal Chairman of the same jurisdiction. 7 The trial Tribunal was functus officio to determine whether the land Application No. 48 of 2013 filed by the appellant was properly before the court or whether does it falls under the ambit of the principle of Res judicata. Since the application that was before the trial Tribunal Chairman was an application for execution of the order Chairman of the same Tribunal. Therefore, to re-open and vacate the orders that was made by the same court in Land Application No. 48 of 2013 was serious irregularity committed by the trial Tribunal Chairman. From my understanding, once a decision has been reached and made known the parties, the adjudicating Tribunal becomes funtus officio:. In the Black’s Law Dictionary, 8th Edition at page 696, functus officio is defined to mean:- “Having performed his or her office” or an officer or official body) without further authority or legal competence because the duties and. function have beeti fully accomplished. ” The case of School Trustees of Washington City Administrative Unit v 3 Benner, 222 N.C. 566, 24 S.E.2d 259, 263, quoted in the dictionary defined the phrase functus officio as follows 8 "Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore ofho further force or authority. Applied to an officer whose term has expired and who has consequently no further official authority; and also, to an instrument, power, agency, etc,, which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect. Blanton Banking Co. v Taliaferro, Tex.Civ.App, 262 S.W. 196. In the case at hand the trial Tribunal was supposed to determine the application for execution that was before him Misc. Land Application No. 71 of 2017 instead of going into the merit of the Land Application No. 48 of 2013 which was already determined by its own Tribunal. In the circumstances, it is my settled view that the issue of res judicata in Misc. Land Application does not arise. Having said all that, I find merits in this appeal and thus quash and set aside Ruling of the District Land and Housing Tribunal. Consequently, I hereby order the matter be remitted to the District Land and Housing Tribunal for the application for execution to be tried on merits by another Chairman of the 9 Tribunal. Accordingly, this appeal is ed with no order for costs. ORDER Judgement delivered in Chambers in presence of Ms. Joyce Nkwabi and Mr. Akram W. Magoti, advocate for the appellant and Mr. Lucas Ndanga, advocate for the respondent who is also present. 10