Ngowi

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL N0.13290 OF 2024 (Arising from Land Application No. 124 of 2017, of the District Land and Housing Tribunal for Kinondoni) JENIPHER NGOWI..................................................... APPELLANT VERSUS ALEX JOSEPH SWAI................................................ RESPONDENT RULING Date of Last Order:01.07.2024 Date of Judgment:30.07.2024 T.N. MWENEGOHA, J: This Appeal originates from the Decision of the District Land and Housing Tribunal for Kinondoni District, herein after called the Trial Tribunal, vide Land Application No. 124 of 2017. The appellant being aggrieved by the Decision of the Trial Tribunal, has presented her Memorandum of Appeal with five grounds as follow; - 1. That, the Trial Tribunal erred in law and in fact in in holding that, the appellant demolished the respondent's fencing wall. 2. That, the Trial Tribunal erred in law and in fact in holding that, the appellant demolishing the respondent's fencing wall, has caused him suffer damages. i 3. The Trial Tribunal erred in law and in fact in condemning the appellant to damages which are too remote under the circumstances of the matter. 4. The Trial Tribunal erred in law and in fact ordering the appellant to build a demolished wall within six months from the date of it's decision. 5. That, the Trial Tribunal erred in law and in fact in by adjudicating a dispute which it had no jurisdiction. 6. That, the Trial Tribunal erred in law and in fact when it misdirected itself and failed to properly analyse and evaluate the evidence properly hence arriving to a wrong decision. The Appeal was heard through written submissions. Advocate Phales Mshana, appeared for the appellant while the respondent was represented by Advocate Marietha Loth Mollel. However, when I was composing the Judgment for this Appeal, I came across an issue which affects the competence of the appeal at hand. That, based on the available records, there was an order of retrial ofi case originated from Makongo Ward Tribunal, vide Case No. 125/ MKG/2015, between the same parties on the same subject matter. The Order came from the same Trial Tribunal, vide Land Appeal No.125 of 2015, (see paragraph 6 (v)-(viii) of the Application by the respondent at the Tribunal, and also paragraphs 6,7 and 8 of the Written Statement of defense by the appellant/respondent at the Trial Tribunal). This Order was not complied with by the parties. But the respondent rushed to file a new case before the same Tribunal. 2 The parties were therefore Ordered to address the Court on the competence of the Appeal and the case at the Trial Tribunal owing the existence of the Order of Trial de novo as explained herein above. They both complied with the Order and addressed the Court accordingly. For serving this Court's time, I will not reproduce their arguments, but the same have being highly considered in this Ruling. Indeed, the Trial Tribunal was not supposed to entertain the dispute filed by the respondent which forms the basis of this Appeal. It is due to its Order given in Land Appeal No. 125 of 2015, that, the case filed by the appellant at Makongo Ward Tribunal, vide Case No. 125/ MKG/2015, be retried. That is to say, the case between the Appellant and the Respondent which was before the Makongo Ward Tribunal was never heard. The same remained and it is still pending to date, following the act of the respondent to institute a fresh case, (Land Application No. 124 of 2017). In other words, the Judgment and Orders of the Trial Tribunal in Land Appeal No. 125 of 2015 were never respected, by the parties and the Tribunal itself by entertaining a new case, by the same parties, over the same subject matter, while it has already given directions to the parties to go back to the Ward Tribunal and proceed with rehearing of their case. This act of the Trial Tribunal in my opinion was wrong as it is against section 8 of the Civil Procedure Code, Cap 33 R.E 2019. That, there was a pending case in another Tribunal, involving the same parties, same subject matter and same reliefs. In short, Land Application No. 124 of 2017 was res-subjudice, to Case No. 125/ MKG/2015, before Makongo Ward Tribunal. For easy reference, let me reproduce the provisions of section 8 of the Civil Procedure Code as here under;- 3 "No Court shall proceed with the Trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Tanzania having jurisdiction to grant the relief claimed". Guided by the provision quoted above, I find what the Trial Tribunal did in respect of Land Application No. 124 of 2017, to be null and void. Its Decision therefore, is illegal and cannot stand. In the event, I use my given under section 43 of the Land Disputes Courts Act, Cap 216, R.E 2019 and proceed to revise and nullify the whole proceedings of the Trial Tribunal, vide Land Application No. 124 of 2017, quash its Decision and aside its Orders. No Order as to costs. T.N. MWENEGOHA JUDGE 30/07/2024 4