ibrahim rehani vs alafa athuman kiloloma administratix of the estate of the late zainabu stecha kiloloma 2016 tzhc 2273 27 may 2016

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT IRINGA LAND CASE APPEAL NO. 2 OF 2014 (From the Decision of the District Land and Housing Tribunal of Iringa District Court at Iringa in Land Case No. 57 of 2011) IBRAHIM REHANI ............................................. APPELLANT VERSUS ALAFA ATHUMAN KILOLOMA (A D M IN IS T R A T E OF THE ESTATE OF THE LATE ZAINABU @STECHA KILOLOMA) 17/03/2016 & 27/05/2016 J U D G E M E N T MADAM SHANGALI, J . The appellant Ibrahim Rehani being aggrieved by the decision of the District Land and Housing Tribunal for Iringa (hereinafter trial District Land Tribunal) in Application No. 57 of 2011 has lodged the instant appeal intending to impugn it. In Hut (lc(.l'ilun dated 21/11/2013 the present respondent Zainabu (ID S trrha Kiloloma was declared the winner. The facts of this matter as depicts from the record of the lower tribunals and courts are rather involved and protrubing. Nevertheless, let me give a brief history as follows; c In 2006 the Iringa Municipality Council declared the area comprising of Ikonongo at Itamba Village a planned area hence subject to survey and redistribution according to the Municipal Council Master Plan. In the exercise of distribution and re­ allocation, the priority was given to those holding customary tenure on the surveyed area. In that exercised both the appellant and respondent claimed to have been holding customary tenure title over the same area, to wit piece of land in dispute. Wisely, the Municipal Council Authority suspended the allocation of the piece of land in dispute and directed the contesting parities to produce documents establishing the ownership of that land. The respondent filed land application No. 57 of 2011 before the District Land and Housing Tribunal for Iringa seeking for the order of the tribunal to permanently restrain the appellant from encroaching the piece of land in dispute, costs and any other reliefs. 2 Before the trial District Land Tribunal the present appellant irtised a preliminary objection to the effect that the land application was in abuse of court of law because the matter was Res-Judicator and that the respondent/applicant had no locus stand to institute the application. That preliminary objection was overruled in favour of the present respondent. Consequently, that decision being an interlocutory order the trial District Land Tribunal proceeded with the main application. On 21/11/2013 the Trial District Land Tribunal ruled in favour of the respondent hence this appeal. The appeal consists of three main grounds as shown in the amended memorandum of appeal filed by the appellant that:- 1. That, the Honourable Chairman of the District Land and Housing Tribunal erred both in law and facts by entertain a matter which was purely Res-Judicator. 2. That, the Honourable Chairman of the District Land and Housing Tribunal erred both in law and facts to disregard the strong cogent evidence from applicant and agree with the evidence from respondent which was produced before the court by witness who has blood relation with respondent and who has an interest with the subject matter. fftfc MOfVilirfibl*1 Chairman of the District Land and t rlhun.il erred both in law and facts by granting Min respondent relief which was never prayed and proved by respondent. Before this court parties were represented by the learned advocates; Mr. Nitume appeared for the appellant where as Mr. Kingwe represented the respondent. Fortunately it was the same pair of advocates who conducted the matter before the trial District Land Tribunal. By the order of this court dated 21st January, 2016, the learned advocates were g ra n te d leave to argue the appeal by way of written submissions. Having gone through the record of proceeding of the lower land tribunals and subm issions made by the learned advocates, I would prefer to concentrate much on -the first ground of appeal which touches on the paramount issue of jurisdiction of the trial District Land Tribunal over the matter. The reason behind being that, if this ground is upheld there will be no reason to argue the rest of grounds. The record of proceedings before the trial Distinct Land Tribunal indicate that during the hearing of the application the respondent (applicant) claimed that she is the owner and occupier of the land in dispute by inheritance from her late father » Atlmm.ini Kiloloma. To prove possession and ownership she called three other witnesses namely Alafa Kiloloma, Khalid Kiloloma and Erasto Mapunda. On other hand the appellant (respondent) claimed that the land belongs to him having obtained it from his old mother Kaundime Ibrahim Mangwira the previous lawful owner of the land. That his ownership was verified and confirmed by the village Governm ent Council for Itamba (exhibit Dl ) . That when the conflict over the ownership of the land in dispute started the appellant decided to refer the matter before the Mkwawa Ward Land Tribunal suing members of Kiloloma Family; namely Tatu Athumani Kiloloma, Kharafa Athumani Kiloloma @ Alafa and Stecha Kiloloma @ Zainabu the present respondent. That the appellant story before the trial District Land Tribunal on the claims that the matter had been decided and resolved before the Mkwawa Ward Tribunal was supported by the evidence of Ibrahim Kizwi, Maria Magoso, and Hamza Balama; all being members of that very Ward Land Tribunal. Mr. Nitume, Learned Advocate for the appellant submitted that the trial District Land Tribunal erred both in law and facts to entertain a matter which was purely Res-Judicator because the same has already been entertained and determined by Mkwawa Ward Land Tribunal. He cited section 9 of the Civil Procedure Code Cap. 33 R.E 2002 which provides the ingredients of the Doctrine o f Res- Judicator. He emphasised that one of the important ingredients is that, the former suit must have been between the same litigating parties or between parties under whom they or any of them claim. He contended that, the record of the Mkwawa Ward Land Tribunal and that of the trial District Land Tribunal shows that the parties in the case were the same claiming on the same and sim ilar piece of land in dispute. In the form er case e.i before Mkwawa Ward Land Tribunal parties were Kiloloma family represented by Tatu Athumani Kiloloma, Kharafa Athumani Kiloloma and Zainabu @ Stecha Kiloloma as respondents against Ibrahim Rehani as applicant. Mr. Nitume strenuously argued that it was the same land in dispute between the same parties which was the centre of the dispute before Mkwawa Ward Land Tribunal and the trial District Land Tribunal. The matter was heard and finally determined by the tribunal with com petent Jurisdiction namely Mkwawa Ward Land Tribunal and no appeal was filed thereof. In support of his Legal position, the learned advocate cited the decision in the case of Gerard Chuchuba Vs. Rector, High Seminary (2002) TLR 213. 6 ml Mi . KIiujwl' learned advocate for (0 I he rfl(*ct that, there is no issue of i'un tflhv bnci.iusc, as held by the trial District m n ttrr which was before the Mkwawa Ward I f f i f ' bfatwoon the appellant and Kiloloma family, while ||f before the trial District Land Tribunal was between the respondent and the appellant. He further contended that (he suit land is not the property of Kiloloma family but rather the property of the respondent which was donated to her as a gift by her latefather Athumani Kiloloma. He technically argued that before theMkwawa Ward Land Tribunal it was the appellant who sued the Kiloloma family over the ownership of that piece of land in dispute and that having lost the case Kiloloma family did not bother to appeal against that decision. He urged this court to determine the ownership between the present appellant and respondent because all the ingredients of the doctrine o f res- judicator argued by the advocate for the appellant are not applicable in this appeal. As I have pointed out above, the crucial issue in this appeal is whether, in the circum stances of the case, the doctrine o f res- ju d icator is applicable or not. Let me start with the position of the law. Section 9 of the Civil Procedure Code, (Supra) provides: 7 "A/o court shall try any suit or issue in which the m atter directly and substantially in issue has been directly and substantially in issue in a form er suit between the same parties or between parties under whom they or any o f them claim litigating under the same title in a court com petent to try such subsequent suit or the suit in which such issued has been subsequently raised and has been heard and finally decided by such court". The ingredients of the doctrine o f res-judicator has been reiterated in several decisions of this court and the court of Appeal. In the case of G e ra rd C h u c h u b a (Supra) which was cited by the appellant's advocate the doctrine o f res-judicator was pertinently revisited and the court held th a t:- " Before the doctrine o f res-judicator is applied the following essential elem ent must be shown to exist; that the ju d icia l decision was pronounced by a court o f com petent jurisdiction, that the subjects m ater and the issued decided are substantially the sam e as the issue in the subsequent suit; that the ju d icia l decision was final and that, it was in respect o f the same parties litigating under sam e title". 8 That legal proposition was also echoed in the case of Peniel Lotta Vs. Gabriel Tanaki and Others (2003) TLR 312 (CA). In the present matter there is no dispute that in 2008 the appellant filed a land Case Application No. 8 of 2008 before Mkwawa Ward Land Tribunal in which he sued the members of Kiloloma family namely Tatu Athumani Kiloloma, Kharafa Athumani Kiloloma and Stecha Kiloloma @Zainabu, as respondents. Before the Mkwawa Ward Land Tribunal Tatu Athumani Kiloloma, the sister of the respondent categorically informed the Ward Tribunal that the land was the property of their late father but the correct persons to give sufficient evidence on the ownership of that land are her young siblings Arafa and Stecha Kiloloma. According to the record, Kharafa Athumani Kiloloma @ Arafa testified to the effect that the family of Kiloloma was declared owners of that piece of land through the decision of the Iringa Urban Primary Court in Civil Case No 112 of 2003 and its subsequent Iringa District Court Civil Appeal No. 9 of 2004. For unknown reasons Stecha kiloloma did not testify before the Mkwawa Ward Land Tribunal but she was a party to the case and she duly signed and affirmed the statem ents given by her siblings Tatu and Kharafa Kiloloma on behalf of Kiloloma family. After hearing the case the Mkwawa Ward Land Tribunal in its decision dated 27/7/2008 ruled in favour of the present appellant. No appeal was lodged by any member of Kiloloma 9 family specifically the present respondent the late Stecha Kiloloma @ Zainabu. The first question is, if at all the very suit land which was the same subject matter in the case filled before the trial District Land Tribunal traces its title way back in 1979 and was indeed bequeathed to the respondent as claimed before the trial District Land Tribunal, what prevented the respondent and her siblings from revealing that fact before the Mkwawa Ward Land Tribunal? I have gone through the decision of Iringa Urban Primary Court in Civil Case No. 112/2003 and it's subsequent Iringa District Court Civil Appeal No. 9/2004 and discovered two major issues. First that case was between one Halima Saidi Versus Stecha Kiloloma. Secondary, the dispute was mainly over destruction of banana plantations committed by Stecha Kiloloma. Therefore, the present appellant was correct to refer the dispute over the ownership of the land before a proper tribunal with com petent jurisdiction over land disputes, namely Mkwawa Ward Land Tribunal. The dispute which was between the present appellant and Kiloloma Family members including the respondent. Before that Ward Land Tribunal the respondent (the late Zainabu @5techa Kilolom a) was wholly involved in the conduct of the case although she refrained to testify. 10 Furthermore, during the hearing of the preliminary objection before the trial District Land Tribunal the respondent claimed that the suit before the Mkwawa Ward Land Tribunal was between Ibrahim Rehani and Kharafa Kiloloma @ Arafa and not Zainabu Stecha Kiloloma. The question is, what is the difference between Kharafa Kiloloma @Arafa and Zainabu @ Stecha Kiloloma in so far as the piece of land in dispute is concerned. Both of them are claiming the land under the cover of their later father Athumani Kiloloma as well as inheritance, while the appellant Ibrahim Rehani is adamantly challenging the alleged ownership by their late father or inheritance on ground that, the land in dispute has never been the property of the late Athumani Kiloloma or any other member of that family. The available evidence indicate that the respondent Zainabu @ Stecha Kiloloma derives her title u nde r Kiloloma family which lost the case before the Mkwawa Ward Land Tribunal. Explanation VI to section 9 of the C ivil procedure Code {Supra) provides:- " Where persons litigate bono fid e in respect o f a public right or o f a private right c la im e d in common for them selves and others, all p e r s o n s interested in such right shall, for the purposes o f th is section, be deserved to claim under the person so lit ig a t in g " . 11 A cursory and close scrutiny of the case suggest that, even if the respondent refutes to have been a party to the case filed before Mkwawa Ward Land Tribunal, she is deemed to claim under the person litigating on the basis of common interest in the subject matter of the suit. When Kiloloma family was sued the respondent had common interest with all those who appeared in that case. She was in the forefront with her siblings before the Mkwawa Ward Land Tribunal where she signed and signified the statements of her siblings. If her siblings or Kiloloma family was wrongly sued she would have said so. Therefore, one cannot, with impunity say the respondent was not a party to the case before Mkwawa Ward Land Tribunal which heard and finally decided the question of ownership of the land in dispute. It is somehow outrageous to note that having lost the case before Mkwawa Ward Land Tribunal in 2008, the respondent opted to file another case before the trial District Land Tribunal in 2011 claiming the ownership of the same piece of land on different and new grounds. In my considered opinion that move is barred by section 9 (explanation VI) of the Civil Procedure Code (Supra). Furthermore in the case of Daniel Lotta Vs. Gabriel Tanaki and Others (Supra) where a similar intricating issue arose and where the appellant thereof was not even joined in the suit, the Court of Appeal observed that;- 12 " Though the appellant was not form ally jo in e d in the form er suit, for the purposes o f section 9 o f the Civil Procedure Code he m ust be deem ed to have claimed under his m other in that suit; explanation (VI) to section 9 is not confined to representative suits". It is for the above legal propositions that I refrained from discussing the other two grounds of appeal. In the upshot, the trial District land tribunal erred both in law and facts for entertaining a matter which is purely res-judicator. The decision of the District Land Tribunal in Land Application No. 57 of 2011 is hereby quashed and set aside. The appeal is hereby allowed with costs. , - It is so ordered i\ ^ M. S. SHANGALI JUDGE 27/05/2016 Judgem ent delivered in the presence of Mr. Kingwe, learned advocate for the respondent and the appellant present in person. M. S. SHANGALI s Aa J UDGE 27/05/2016