20181214 TZHC Mwanza3

/ / IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA MISC. LAND APPEAL NO. 27 OF 2017 (Arising from the District Land and Housing Tribunal for Mara at Musoma, land appeal No. 150 of 2016 original Makotonga Ward Tribunal in application No.3 of 2016) JACKSON NYASEME NY ASARI. ......................................... APPELLANT VERSUS NY AMASAGARI KISIRINY A............................................ RESPONDENT JUDGMENT 14/12/2018 G.J. Mdemu, J; Jackson Nyaseme Nyasari, the Appellant, preferred this appeal from the decision of the District Land and Housing Tribunal of Musoma which nullified proceedings, decision and order thereof of Morotonga Ward Tribunal in land application No. 3 of 2016. The decision was made on the 13th day of January, 2017. In the trial tribunal in Application No. 3 of 2016, th~ Respondent Nyamasagari Kisirinya lost in a claim of a piece of land _ which he claimed from the Appellant. The basis of the decision in the District Land and Housing Tribunal in nullifying the decision of Morotonga Ward Tribunal was that, the· matter was res-judicata as it was once decided by Mugumu Ward Tribunal in land case No. 50 of 2008. Following this decision, the present appeal got preferred on the following grounds:- l. That, having found that the High Court (PC) probate appeal No. 6 of 2007, an administration of Estate cause in \ 1 /j different from the Morotonga Ward Tribunal case No. 3 of 2016, a land dispute case ought to have found that the matter was not res-judicata. 2. The Appellate Tribunal erred in law and fact in taking cognizance of Mugumu Ward Tribunal application No. 50 of 2008 and the subsequent District Land and Housing Tribunal appeal No. 134 of 2009 in that:- (a) The Mugumu Ward Tribunal application No. 50 of 2008 was not conclusive and/or relevant to the matters in issue. (b) The dismissal at appeal No. 134 of 2009 was obtained by fraud. (c) The Appellant was not afforded a fair hearing in the said appeal to challenge the said judgment. This appeal is rather mixed up and have certain complications. I think before I analyze and consider submissions of the parties, restating the history of the matter would be of a rescue. In land case No. 50/2008, Nyamasagari Kisirinya, the Respondent sued one Jackson Mang' ana successfu_lly over the suit land. Jackson appealed to the District Land and Housing Tribunal of Musoma, in land appeal No. 134 of 2009. This appeal was dismissed for want of prosecution on 6th day of May, 2010. No any legal step got taken at this stage following dismissal of the appeal. Later, on the 3 rd day of March, 2016, at Morotonga Ward Tribunal, the Respondent filed a land dispute against Jackson Nyaseme Nyasari, the Appellant, claiming ownership of the same piece of land. It was registered as land case No. 3/2016. On the 21s t day of July, 2016, the trial 2 tribunal decided in favour of the Appellant Jackson Nyaseme Nyasari. The Respondent Nyamasagari Kisirinya appealed to the District Land and Housing Tribunal in land appeal No. 150 of 2016. This appeal was decided on 13th day of January, 2016 in which the tribunal nullified the whole of land case No. 13/2016. This decision is the subject of the present appeal. Yet in another progress, Nyamasagari Nyasari made an application for revision in High Court against the same subject. The High Court made an interim order in civil revision No. 9/2006 on 11 th day of July, 2006 staying execution of the decree in civil case No. 13 of 2005, Serengeti District Court. Another more confusing state of things was in PC. probate appeal No. 6/2007 in which the High Court on 30 th day of April, 2009, dismissed the appeal for want of prosecution but ordered the estate of the deceased to remain in the hands of Nyamasagari Nyasari. In this estate, the disputed piece of land is also listed. Having stated the history, I now turn to the merits of the appeal. On the 25 th day of September, 2018 both the Appellant and the Respondent appeared in person arguing the appeal. The Appellant submitted that, the disputed piece of land is the property of one Nyasari Mang'ana who was . the husband of the Respondent. He· submitted that, Justices Mackanja and Nyangarika in probate cases decided the matter in his absence but he is of firm observation that the Respondent is not the owner of the land as the deceased husband of the Respondent had three wives. With this, he added that the Respondent cannot take the whole land in exclusion of other two wives of the late Nyasari Mang'ana. He concluded that, the disputed piece of land is also in probate case No. 15 of 2004. He thus urged me to allow the appeal. 3 · The Respondent in reply did observe that the dispute piece of land was owned by the mother of the Respondent as decided in land case No. 50/2008 in the Ward Tribunal of Mugumu. He added that, the Appellant appealed to the District Land and Housing Tribunal but the appeal got dismissed for want of prosecution. He observed further that, the District Land and Housing Tribunal was justified to nullify the whole of land case No. 3 of 2016(Morotonga Ward Tribunal) as the matter was conclusively determined by Mugumu Ward Tribunal in land application No. 50 of 2008. The Respondent on his part concedes that the deceased husband had three wives, the Respondent inclusive but maintained her position that the rest two deceased wives had no children save for the Respondent. The latter concluded that, the appeal be dismissed on those reasons. After having considered the submissions of the two parties and a due regard to the facts of the case, and more so on the history of the suit land, the central issue to be determined is whether the matter is res- judicata as observed by the learned trial Chairman. Principles relating to res-judicata are enshrined in the provisions of section 9 of the Civil Procedure Code, Cap. 33. In essence, the doctrine of res-judicata states that, once a court or judicial tribunal of competent jurisdiction to determine the matter in ·any suit or proceedings between the parties thereto has finally and conclusively decided those matters, such decision, unless reversed on appeal or revision, is conclusive, so .that parties there to or their privies are precluded from disputing in any later or future litigation. This doctrine acts as an estoppel to parties to refile such suits which have been finally determined. In the present appeal, the suit which is subject of this appeal is between Nyamasagari Kisirinya and Jackson Nyaseme Nyasari. This was 4 filed in Morotonga Ward Tribunal as land dispute No. 3 of 2016. Prior to this, 1-.1~ kmd dispute No. 50 of 2008 between Nyamasagari Kisirinya and Jackson ';\Aang'ana was filed and determined on 14th day of August, 2009 by the Ward Tribunal of Mugumu. The suit land in the two land applications is one and the same. Having observed these facts, the learned Chairman of the District Land and Housing Tribunal found that the suit is res-judicata and accordingly nullified the entire proceedings, judgment and orders in land dispute No. 3 of 2016, Morotonga Ward Tribunal. In terms of the principles of res-judicata, I agree with learned Chairman that as the matter in dispute was conclusively determined by the Ward Tribunal of Mugumu in Land Dispute No. 50/2008, the land dispute No. 3 of 2016 filed in Morotonga Ward Tribunal is res-judiata. The Ward Tribunal of Mugumu had jurisdiction to determine the matter and it judiciously did that job. It was wrong therefore to file this suit in another tribunal of more similar jurisdiction on the subject which has been conclusively determined. What the Appellant under the circumstances was to do is to appeal against the decision of the Ward Tribunal of Mugumu. The record shows that, he appealed but the appeal got dismissed for want of prosecution. It is not correct at all as alleged by the Appellant in his grounds of appeal that the decision in land appeal No.134 of 2009 was obtained by fraud. He appealed, but did not prosecufe the appeal and therefore the tribunal was justified to dismiss the appeal. He was therefore under the premisses legally required to deal with the dismissed appeal No. 134 of 2009. Following nullification of the whole of land application No. 3 of 2016, the parties are to maintain the status quo as it was in land application No. 50 of 2008. Ii 'r', \ __;~ I have also pointed out in the history about revision No. 9/2006 and J probate appeal No. 6 of 2007. Those were probate matters and have nothing to do with the present land disputes. Having said so, I concur with the observation of the learned chairman that the matter is res-judicata and in view thereof, the present appeal is hereby dismissed. I make no order as to costs. It is so ordered. G. J Mdemu Judge 14/12/2018 6 ' 11 '