jenifar yuboni sanga vs cosmas kabulanya 2020 tzhclandd 3869 10 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT SUM BA WANG A LAND APPEAL NO. 20 OF 2020 ( Originating from the Decision of the District Land and Housing Tribunal of Rukwa District at Sumbawanga in land Appeal No. 149 of 2018) JENIFAR YUBONI SANGA ............ APPELLANT VERSUS COSMAS KABULANYA ........................................RESPONDENT Date of last Order: 05/11/2020 Date of Judgment: 10/11/2020 JUDGMENT C.P. MKEHA, J The present appeal traces its origin from Lyowa Ward Tribunal before which, the appellant unsuccessfully sued the respondent over ownership of a semi-finished building located within Namlangwa village. The appellant's first appeal to Sumbawanga District Land and Housing Tribunal was also unsuccessful. That is how the present appeal found its way before this court. Despite the fact that the appellant had preferred an appeal consisting of nine (9) grounds of appeal, only the first ground of appeal suffices to dispose of the present appeal. In the said ground of appeal, the appellant attempted to fault the first appellate tribunal by submitting that it was not true that, before she instituted complaint No. 10 of 2020 i before Lyowa Ward Tribunal, the same case had been previously determined by the same Tribunal. The appellant submitted that, the District Land and Housing Tribunal erred in so holding. The respondent submitted in reply that, the learned Chairperson was correct to hold that the matter had already been determined between him (the respondent) and the appellant's husband. It was the learned Chairperson's holding that the Ward Tribunal erred in proceeding determining the dispute involving the same subject matter that was previously directly and substantially in issue between the respondent and the appellant's husband. She thus quashed the Ward Tribunal's proceedings in respect of complaint No. 10 of 2020. Upon going through the decision in complaint No. 06 of 2018 which involved the appellant's husband and the respondent, before Lyowa Ward Tribunal, it appears that the appellant was the first witness who testified for the appellant. The parties in the said case were litigating over the same subject matter which the appellant is now claiming in a distinct case as against the respondent. An issue that arises is whether it was justified for the appellant to file a fresh case as against the respondent over the same subject matter in the circumstances of the present case. Much as I agree with the appellant that her case was not res sub judice, it was however not open for the appellant to file complaint No. 10 of 2020 as against the respondent for the same was res judicata. As a matter of fact, Res judicata not only affects parties but their privies. That is, persons claiming under them and each privy stands in the shoes of the party under whom he claims. A person claims under another party 2 when he derives his title through that person. Such derivative title may be by assignment or otherwise. Read: Mulla, Code of Civil Procedure, Fourteenth Edition (Abridged) at page 100. The story of the appellant that she knew nothing between her husband and the respondent is unfounded. The same is defeated by the fact that she appeared as a witness in favour of her husband in complaint No. 06 of 2018 before Lyowa Ward Tribunal. For the foregoing reason, I uphold the first appellate court's decision dismissing the appellant's appeal. It was proper for proceedings and decision in complaint No. 10 of 2020 to be quashed. The present appeal is dismissed for being without merit. Dated at SUMBAWANGA this 10th day of November, 2020. JUDGE 10/11/2020 Court: Judgment is delivered in the presence of the parties. C.P. MK JUDGE 10/11/2020 3