gaper kasumbi kasubi vs hassan juma matola and others 2021 tzhclandd 700 30 april 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT PAR ES SALAAAM LAND APPEAL NO. 145 OF 2018 GASPER (KASUMBI) KASUBI................................ ............. APPELLANT

VERSUS HASSAN JUMA MATOLA............................................. 1st RESPONDENT

RUKIA ABBAS NDULE (As administratix of SAID ATHUMANI KISWAGO)...... 2nd RESPONDENT ABDALLAH ALLY ..................... ............. .........3rd RESPONDENT TEAM OTTO NCHIMBI........... ............. 4th RESPONDENT GERION ANTHONY MWAKENJA ............... 5th RESPONDENT ''Jr

CATHERLINE MAIKO (As administratix of the late SILVANUS SIMBAMWENE)... .. . ....... 6TH RESPONDENT ABDIRABI BAKARI..................................................... 7th RESPONDENT

JUDGMENT Date of last Order: Date of Judgment: MANGO, J. The appellant filed land Application No. 342 of 2016 before the District land and Housing Tribunal for Kinondoni claiming ownership of a piece of land located at GOBA area in Ubungo Dar es salaam. The trial tribunal glanced i traces of resjudicata in the application to application No. 72 of 2010 between Khasan Juma Matola and Grace Komba who is alleged to be the wife of the appellant. Parties were invited to submit on whether Application No. 342 of 2016 is re judicata to Misc. Application No. 72 of 2010. On 10th September 2018 the trial tribunal struck out application No. 342 of 2016 for being resjudicata to Application No. 72 of 2010. Aggrieved by the decision of the trial tribunal, the appellant preferred this appeal on the following grounds:- 1. That the Honourable Chairman erred grossly in Law and in fact when he held Suo Moto that the matter is res judicata because of the case of Hassan Juma Matola Versus Grace Komba -Application No. 299 of 2009 and Application No. 72 of 2010 when this case did not include the Land occupied by TEAM OTTO NCHIMBI and also 1st Respondent has not raised it; 'fife.

2. The Honourable Chairman erred grossly in Law an Fact when he held that the matter was res judicata when the parties and the cause of action are different in the present case from that of the case of Hassan Juma Matola; 3. That the Honorable Chairman erred in Law and fact when he held that the affidavit of Grace Komba Application No. 299 of 2009 was enough proof that she was the wife of the Appellant without considering any other evidence and without examining the sale agreement of the Appellant and the father of Said Athumani to see if the suit Land was matrimonial property or not.

4. The Honorable Chairman grossly erred in Law and in fact for failing to note that the Judgment of the ward Tribunal of Goba in the case of Hassan Juma Matola was a nullity for failure of the Tribunal to indicate in the Coram the gender of the members and so cannot be acted upon.

5. The Honourable Chairman grossly erred in law and in fact when it delivered a ruling which affects even dead persons before their representatives are appointed eg. Said Athuman Kiswago 2nd Respondent died on 25/7/2018 before the ruling was delivered on 10/09/2018 despite the fact that he was told that Said Athumani Kiswago had died.

6. The Honourable Chairman erred in Law and in fact when he held that the Appellant should have asked to be joined in the suit or file objection proceedings because when all this happened appellant was not present. The appeal was argued by way of written submissions. The Appellant, first third, fourth, and sixth respondents prosecuted the appeal in person while the second, fifth and seventh respondents had services of Mr. Gwamaka Mwaikugile, learned advocate. Although the appellant has raised six grounds of appeal, the main issue in this appeal is whether Application No. 342 of 2016 is res judicata to Case No. 299 of 2009 before Goba Ward Tribunal and its subsequent proceedings that is Misc. Land Application No. 72 of 2010 before District Land and Housing Tribunal for Kinondoni. I have read and considered submissions by both parties and Court record. I will not reproduce the submissions as they form part of Court record. In brief the appellant argued that Application No. 342 of 2016 is not res judicata to case No. 299 of 2009 because the land in dispute in Application No. 342 of 2016 and Application No. 299 of 2009 is different. To substantiate his arguments, he refered to the proceedings of the Goba Ward Tribunal in Application No. 45 of 2013. He submitted that the proceedings indicates clearly the suit land is different from the one involved in the case between Hassan Juma

Matola and Grace Komba. 3 He considers the cause of action in the two applications to be different. He argued that, Application No. 342 of 2016 concerns trespass to the suit land by all respondents. In his view the application cannot be considered to be res judicata as it involve the entire land alleged to be the property of the appellant as opposed to small pieces of land trespassed by different individuals. He also challenged the status of Grace Komba who posed as the wife of the appellant in the Misc. Land Application No. 72 of 2010. Although he did not r.*:, expressly denied that the said Grace Komba is not his wife, he challenged the proof of the alleged marriage between him and Grace Komba. He. argued that, an affidavit cannot be considered to oe evidence of his marriage to Grace Komba. He argued further that, the property in dispute belongs to him and not Grace Komba. He cited section 59 of the law of marriage Act as authority to support his arguments that a husband and wife can own properties independently. The first repondent considered the appeal to be devoid of merits as the application was merely struck out. According to him, the trial chairman advised the appellant to file a fresh suit. He does not understand why the appellant decided to appeal. He prayed the appeal to be struck out with costs. The second, fifth and seventh respondents' counsel argued that the

facts adduced by the appellant are fictitious and fabricated. Citing section 9 of the Civil Procedure Code and the case of Stephen Wasira versus Joseph Warioba [1999] TLR 334, he argued that the application was indeed res judicata. He demonstrated existing elements of res judicata in this matter as follows; 4 First the matter was adjudicated between the wife of the appellant and Hassan Matoia as Application No. 72 of 2010. The nature of evidence adduced by the appellant is the same sale agreement that was produced Dy his wife, Grace Komba in Mlsc. No. 72 of 2010, And that, Application No. 72 of 2010 was determined by a court with competent jurisdiction, and the decision was final. On the issue of proof of mamage by affidavit, he argued that the Order XIX Rule 1 of the Civil Procedure Code, allows proof pt facts by an affidavit. In that regard it was proper for the Tribunal, to reiy on the affidavit sworn by Grace Komba as evidence of her marriage to the appellant. The 4th and 6th respondent had similar arguments to the second, fiftn and seventh respondents' counsel. According him/ Grace Komba and the appellant herein hold the land under same title thus, they are precluded from instituting different suits to claim same title. Citing section 9 of the Civil Procedure Code he argued that the case is res judicata to application No. 72 of 2010. In his rejoinder, the appellant

reiterated his submission in chief. I agree with the learned counsels for tne respondents and submissions by unrepresented respondents that the law applicable in determination whether the case is res judicata or not, is section 9 of the Civil Procedure Code, [Cap. 33 R.E 2019]. According to the cited section, for the two cases to be res judicata the following elements must exists. Parties to the two cases must be substantially the same, the cause of action should be substantially the same, the former suit must be determined to finality by a court with competent jurisdiction as reflected in the cases cited by the respondents. 5 Applying the legal requirements to the two cases that is Application No.299 of 2009 and Application No. 342 of the 2016 establishes that the two cases are not res judicata to one another. Application No 299 of 2009 was instituted by the first respondent against one Grace Komba. By the time the application was instituted Grace Komba was considered as a trespasser to the suit land. According to court records, the application was determined ex parte because Grace Komba refused to defend herself before the tribunal. Grace Komba introduced herself as the wife of the appellant when she filed Application No. 7.2 of 2010 seeking to restrain the first respondent from disposing her house located at Goba tn execution of the decree in Land Application No. 299 of

2009, Goba Ward Tribunal. In Application No. 72 of 2010 the said Grace produced a sale agreement between the appellant as evidence of his ownership over the suit land. Although Grace filed a sworn affidavit to be the wife of the appellant, there is nowhere in the sale agreement that the said Grace appears to be the owner of the suit land. Even if it will be considered that the said Grace is the wife of the appellant, such facts does not vest in her powers to institute a suit to recover properties of the appellant without express authorisation of the appellant Ik Thus, the case before the Ward Tribunal that is BK/ GB/299/11/09 before Goba Ward Tribunal was instituted against Grace Komba in her personal capacity and not as a legal representative of the appellant. The subsequent proceedings that is Application No. 72 of 2010 before the District Land and Housing Tribunal for Kinondoni was instituted by Grace herself as there is no proof that she was authorised to file such an application by her alleged husband, the appellant. Although husband and wife are considered to be 6 capable of owning properties jointly, the fact that the agreement produced by Grace Komba indicates that the suit land belongs to the appellant, suing Grace Komba knowingly that the suit land does not belong to her cannot bar the appellant from contesting his ownership on basis of resjudicata. In absence of

proof that the appellant and Grace Komba owns the suit land jointly such facts cannot be assumed to exists. I am of a considered view that, the appellant and the said Grace Komba are two different persons. The disputed sale agreement indicates expressly that, the purchaser of the suitland was the appellant. The said Grace Komba does not appear in the disputed sale agreement to be the owner of the suit land. Thus, the appellant's action to recover the alleged to be his land cannot be hindered by a suit which was instituted against his alleged wife over the same property For that reason I hereby allow the appeal without costs. The case file regarding application No. 342 of 2016 be returned to trial tribunal for determination of the dispute on merits. The matter should preferably the matter be handled by a different Chaii^rpan. f 7