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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND APPEAL NO. 1858 OF 2024 (Originating from Application No. 19 of 2021 of the District Land and Housing Tribunal of Mbeya, at Mbeya) GRACE MWAMBENJA………......……………..…………APPELLANT VERSUS MARY TUYATE……....….……..………………………….RESPONDENT JUDGMENT Date: 20 May 2024 & 30 July 2024 SINDA, J.: The appellant is aggrieved by the decision of the District Land and Housing Tribunal for Mbeya at Mbeya (the DLHT) delivered on the 15 December 2024 in favour of the respondent. The brief facts of the case are that the parties to this appeal were wives to the late Charles Mwasote. The respondent claims ownership of a house No. IY/One 108 located at Iyela One, Iyela ward within Mbeya region (the 1 Disputed Property). That, the appellant unlawfully entered the suit premises and evacuated all dwellers that were kept by the respondent. The respondent successfully sued the appellant at the DLHT. Dissatisfied with the decision, the appellant made this appeal on the following grounds: 1. That the Trial Chairman erred in law and fact by deciding the case in favor of the respondent despite all the weaknesses on the respondent’s side. 2. That the Trial Chairman erred in law and in fact when she failed to analyze evidence before her properly hence reaching at such a defective decision. 3. That the Trial Chairperson erred in law and in fact by overlooking the fact that the case was res judicata. 4. That the Trial Chairman erred in law and in fact by overlooking the fact that the Tribunal was already functus official. The hearing was by way of written submission. The appellant was represented by Mr. Sambwee Shitambala, learned advocate and the respondent was represented by Ms. Gladness Luhwago, learned advocate. 2 On the first and second grounds, Mr. Shitambala submitted that the evidence by the respondent was weak. That the respondent did not clearly explain how she got the Disputed Property. He stated that the evidence adduced by the appellant was strong as she gave a detailed history of how the Disputed Property was acquired. He added that the respondent’s witnesses are far from kinship of their late husband (Charles Mwasote), compared to the witnesses of the appellant who are family members and know exactly what happened, especially SU2 who apparently sold the Disputed Property to the appellant and her late husband. Mr. Shitambala stated that the appellant’s evidence was reliable, straight and revealed how the Disputed Land was obtained and provided important information such as SM3 not being a wife to Charles Mwasote. He added the respondent (SM1) was already married to another man during the death of their husband. That the respondent herein had a house in Nzovwe built by their husband which was given to her by SU3 an administrator of their late husband’s estate. He added that the appellant is currently living at Iyela II in her father’s house and not a house built by her husband. On the third and fourth grounds, Mr. Shitambala submitted that the DLHT not only already dealt with the Disputed Property in Application No. 275/2018 3 and concluded on the issue of ownership, but also ordered execution and removal of the then respondent which was complied with. That the case went before the High Court of Mbeya as appeal No. 42/2019 where it was decided that the respondent herein had no locus standi. Thus, goes against the principle of Res Judicata for the DLHT to hear a matter that was already decided, finalized and executed. In her reply submission, on the first and second grounds Ms. Luhwago submitted that the respondent discharged her duty by proving the case at the required standard through her testimony and by procuring witnesses who were credible and adduced evidence proving how the respondent came into possession of the suit land and developed it. In support of her argument she cited Section 110 of the Evidence Act [Cap 6 R.E 2019] and the case of Registered Trustees of St. Anita’s Greenland Schools (Ltd) and 6 Others vs. Azania Bank Limited, CAT at Dar es Salaam [TANZLII]. Moreover, the counsel added that the appellant herein failed to cross examine on important facts, such as the house belonging to the respondent and that it is the respondent who developed it since 1994 and is still in possession. That failure to cross examine is weakness on the side of the appellant since it goes to the root of the case. 4 Ms. Luhwago continued that it is not disputed that the respondent has been in possession over the Disputed Property for a long time and she explained on how she acquired the same. Hence, it is the duty of the appellant to prove that the respondent is not the owner of the disputed house as per Section 119 of the Evidence Act [Cap 6 R.E 2016]. Furthermore, the counsel submitted that the assertion that the appellant’s witnesses were family members lack merit and is not a dispute at hand. She added that the evidence from the appellant’s side was rather contradictory, emphasizing on evidence adduced by SU1 and SU2. On matters concerning SM3, the counsel argued that the matter at hand is not a dispute as to whether SM3 was a wife of Charles Mwasote or not. That SM3 only appeared before the DLHT to testify as to who is a lawful owner of the disputed house and not to establish if she was married or not. Ms. Luhwago further submitted that the appellant’s evidence was neither reliable nor straight. That his witnesses were not credible, which the Ms. Luhwago termed as the appellant’s counsel’s technique for justice delay. Submitting on the third and fourth grounds of appeal, respondent’s counsel argued that the assertion that ownership of the disputed house was already 5 dealt with in Application No. 275/2018 has no merit. The counsel added, from the DLHT proceedings in Application No. 19 of 2019 the respondent herein filed application for temporary injunction against the appellant. The application was against the execution of decree originated in Land Application No. 275 of 2018, where the respondent was not a party to a suit. She added that before hearing of Application No. 19 of 2019, the appellant’s counsel raised objection that the DLHT is Res Judicata and functus official to entertain a suit that was already determined on merit in Application No. 275 of 2018 between Grace Mwambenja vs. Mwaba Andrea Mwasote, in which it was declared Grace Mwasote, appellant herein, a lawful owner of the suit land. She insisted that the parties herein are not the same as those in Application No. 275/2018, therefore the Tribunal did not overlook the doctrines of Res Judicata and functus official. In support of her argument she cited the cases of Peniel Lotha versus Gabriel Tamaki and Others [2003] TLR 312 and Badugu Ginning Co. Ltd versus CRDB Bank PLC and Others, Civil Appeal No. 265 of 2019. CAT at Mwanza [TANZLII]. In summing up, she argued that the respondent had no other remedy than to file Application No. 19/2021 since she was not a party to the former case. The appellant did not file a rejoinder. 6 Having gone through submissions by both parties, together with the laws and precedents availed, I will now provide my deliberation on whether I find this appeal with merit. Starting with the third and fourth grounds, the appellant counsel was of the view that the case is Res Judicata and that the DLHT was already functus official. According to encyclopedia Britannica, Res Judicata means: “…. (Latin: a thing adjudged), a thing or matter that has been finally juridically decided on its merits and cannot be litigated again between the same parties.” Further, in the case of Badugu Ginning Co. Ltd versus CRDB Bank PLC and Others (Supra), the court reiterated what is stated under Section 9 of the Civil Procedure Code Cap 33 [R.E 2019] (The CPC), to wit; "No court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which issue has been subsequently raised and has been heard and finally decided by such court." On the other hand, Functus Official: 7 “refers to an officer or agency whose mandate has expired, due to either the arrival of an expiry date or an agency having accomplished the purpose for which it was created. When used to describe a court, it can refer to one whose duty or authority has come to an end: "Once a court has passed a valid sentence after a lawful hearing, it becomes functus officio and cannot reopen the case." From the foregoing, one of the most important things to consider before ruling out whether a matter is Res Judicata or a body is functus official is that the case should be between the same parties. Mr. Shitambala during his submission, argued that the matter goes against the well laid principles of Res Judicata and functus official since the matter had already been decided and finalized between the parties by a competent authority. He added that the matter was already decided in Application No. 275 of 2018 and in Land Appeal No. 42 of 2019, where the appellant herein was the victor. After going through the proceedings of the DLHT it came to my attention that the respondent herein was never a party to the main suit. That in Application No. 275 of 2018, the matter was between Grace Mwambenja and Mwabha Andrea Mwasote. The respondent only brought an application, Misc. Application No. 275 of 2019, objecting execution of Judgment and decree 8 that emanated from the main case where she was unsuccessful before the DLHT and during appeal at the High Court in relation to the same application for objection proceeding. Further, at the DLHT and during the appeal, the matter was adjudicated in a way that the respondent had no locus standi mainly because she was not a part to the main suit. That being the case, it is true that the matter was already tried and finalized, but evidently so, it was not between the appellant and the respondent herein. Therefore, it cannot be a Res Judicata and the DLHT was not functus official. I therefore find that the third and fourth grounds with no merit. Going to the first and second grounds, on the outset they are both centered around evidence. I will therefore discuss them together. In civil matters, the evidence is always measured on a balance of probabilities in determining who proved the case against the other, as was discussed in the case of Stanslaus Rugaba Kasusura and Another versus Phrase Kabuye (1982) TLR 338, also the case of Hemedi Saidi versus Mohamed Mbilu (1984) TLR 133. In the case at hand, the appellant claimed to have bought the Disputed Property together with her late husband and the same was given to her by 9 way on inheritance as stated by administrator of the deceased estate (SU3). The respondent on her part claimed to have built the house from scratch with the money she obtained from her businesses. That the Disputed Property was never her late husband’s property nor a matrimonial property for that matter. The evidence depended on by both parties, could easily be proved by documents, and frankly that was the expectation in this regard. For instance, the appellant could show documents showing indeed she bought the Disputed Property with her husband and also documents showing she was in fact given the property by way of inheritance. Likewise, the respondent could provide documents showing ownership, the building expenses and how she came to own the Disputed Property since she claimed the house solely belonged to her. Nonetheless, neither of that was done. During trial at the DLHT both the appellant and respondent brought witnesses who provided oral account concerning the dispute. Not saying oral evidence is not acceptable, but in most cases it is ones’ word against the other, as observed in this case. As such, the burden of proof lies on who alleges. This duty is explained in the case of Anthony Masanga versus Penina (Mama Mgesi) and 10 Another Civil Appeal No. 118 of 2014, also provided under Section 110 (1)(2) and 111 of the Law of Evidence Act, Cap. 6 of the Revised Edition, 2022 which states “110.-(1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. 111. The burden of proof in a suit proceeding lies on that person who would fail if no evidence at all were given on either side.” The respondent brought the matter before the DLHT claiming ownership of the Disputed Property. This means she had the duty to prove the case. She did explain that she built the Disputed Property on her own, and that the Disputed Property is not the property of their late husband. This being an ownership matter, I believe the respondent started proving her case halfway. In a sense that, she only started from when she started building the said house. Nowhere in the DLHT proceeding does it show how she obtained the land in the first place. Considering it is a crucial fact that the respondent and her witnesses should have elaborated on. 11 This brings an impression that the respondent built a house on a land that was allegedly bought by the appellant and their late husband, since the appellant brought a witness to that effect. The counsel for the respondent argued that there are discrepancies in the appellant’s evidence, especially on how she inherited the house from her late husband. She said the house was given to her by (SU3), but SU3 said he did not give her the property but their deceased husband already divided the houses between the two wives before he died, the appellant was given the house in Iyela and the respondent was given the house in Nzovwe, both within Mbeya region. As mentioned above, although in civil matters the evidence is measured on balance of probabilities, it is my humble opinion that the DLHT should not have shifted the burden of proving the allegations to the appellant, while that duty was on the respondent. The same was discussed in the case of Paulina Samson Ndawavya versus. Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017 CAT at Mwanza [TANZLII], that states, “It is again trite that the burden of proof never shifts to the adverse party until the party on whom the onus lies discharges 12 his duty and that the burden of proof is not diluted on account of the weaknesses of the opposite parts case” Having so discussed, that the respondent failed to discharge her duty in proving the case, the DLHT misdirected itself by using contradictions and weaknesses in the appellant’s evidence to decide in favor of the respondent, and with that I find the first and second grounds with merit. Consequently, after thorough deliberation I find this appeal meritorious and is hereby allowed with costs. It is so ordered. Right of appeal is explained. DATED at MBEYA on this 30 day of July 2024. A. A. SINDA JUDGE 13