Land Revision 1 of 2022 Ruling MrishaJ

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA LAND REVISION NO. 1 OF 2022 (Originated from Execution No. 155 of 2021 in the District Land and Housing Tribunal for Rukwa at Sumbawanga) JOSEPH CHALYA (Administrator of the estate of the late Fransisko Chalya)....................................................................APPLICANT VERSUS NDALIMA MWAIKA..................................................................... RESPONDENT RULING 07th November & 27th December, 2024 MRISHA, J. This application is made by way of chamber summons supported by affidavit under section 43 (1) (b) of the Land Dispute Act [Cap 216 R.E. 2022]. The applicant is seeking from this court for the following orders: - 1. That this Honorable Court be pleased to call and examine proceedings in Execution No. 155/2021 so as to satisfy itself as to correctness, legality and propriety of the same and revise the proceedings and make such decision or order therein as it may think fit. 2. Costs of this application be provided for. 1 The respondent filed a counter affidavit resisting the application. At the hearing of the present application, both parties appeared in person, though not legally represented. It was the submission of the applicant in support of the application that on 2012 the late Fransisko Chalya instituted a land dispute before village tribunal and was awarded a victory. Aggrieved, the respondent appealed to the Mpui Ward Tribunal in Civil Case Number 35 of 2012 and the Ward Tribunal decided in favour of the respondent by declaring him the lawful owner of the suit land. The applicant was not amused with the decision of the Ward tribunal, hence decided to file his appeal to the District Land and Housing Tribunal (the DLHT), hence, the DLHT ordered the matter be retried, quash and set aside trial proceedings and judgment of the said ward tribunal. Later the application was instituted before Ward Tribunal of Mpui as directed by the DLHT, and Civil Case Number 48 of 2014 was filed whereby the matter was heard, and the Ward Tribunal declared the applicant lawful owner of the disputed land. At this time the respondent did not appeal, instead he surrendered the documents to his son, who filed the appeal in his personal capacity and the tribunal dismissed the appeal on the ground that, he had no locus standi. 2 Again, the applicant argued that he disagrees with the findings of the DLHT that the matter was res judicata. He was of the view that the decision on Civil Case Number 115 of 2012 dismissed the decision of Civil Case Number 35 of 2012 and the appellate tribunal ordered a retrial. Hence, he argued that the Case Number 48 of 2014 does not fall under the principle of res judicata. The applicant went on to submit that the chairperson of the DLHT raised the issue of Res judicata suo moto while composing his ruling without according him a right to be heard. He further submitted that the matter was heard ex parte against the respondent, that means the applicant who was present in court was not given chance to submit on issue of res judicata. He wound up by adopting his affidavit for it to form part of his submission in chief and prayed to this court to allow his application with costs. In reply, the respondent started by opposing the grant of application, conversely, he agreed with the applicant’s submission except on the summons to appear to defend his case. He claimed that the Ward Tribunal did not issue summons for him to appear and defend his case, that 3 proceeded ex parte on his part and the tribunal declared the applicant a lawful owner of the suit land. Regarding the issue of res judicata, the respondent submitted that the DLHT properly decided that issue. Thus, the respondent implored the court to dismiss the application with costs. Before I endeavour to determine the merit or demerit of the present application, I find it imperative to address the concern that the respondent’s counter affidavit contains evasive denial. This point need not constrain me to spend me much time. It is the law that failure of the respondent to file a counter affidavit does not render the application uncontested one as what is being uncontested is factual issue, taking into account that affidavit is a substitute of oral evidence. In my view the respondent is entitled to contest on matters of law. Notwithstanding, the applicant has not been relieved from discharging his duty of proving his case on balance of probabilities. Having said so, I now move forward to determine whether the applicant’s application is meritorious. Back to the applicant’s affidavit, it is apparent at paragraph 8 (a) and (b) the applicant’s claims that there is an error for the DLHT to refuse to grant of execution on the ground that the matter was res 4 judicata. In 20th May, 2021 the Applicant filed Misc. Application No. 155 of 2021 before the DLHT for execution. The execution order was not granted and the DLHT declared the Civil Case No. 48 of 2014 as being res judicata. Hence, he decided to file this application. The doctrine of res judicata essentially prohibits the court or tribunal from entertaining a matter that has already been decided by a competent court or tribunal, as between the same parties regarding the same subject matter. This is provided under the provisions of section 9 of the Civil Procedure Code [Cap 33 R.E. 2022]. The condition on the principle of res judicator under section 9 of the CPC, has been stated in a number of cases of High Court and the Court of Appeal of Tanzania (See: The Registered Trustees of Chama cha Mapinduzi v Mohamed Ibrahim Versi and Sons and Another, Civil Appeal No. 16 of 2008 CAT Zanzibar, Hassani Ally v Ashura Ally, Civil Appeal No. 246 of 2019 CAT Mtwara and Nyabichune Village Council v Marwa Mang’era Kesongo, Land Appeal No. 90 of 2020 [2021] TZHC 4130. From the above provisions of section 9 of the CPC and the cited cases, it is settled that the condition for res judicata must co-exist for it to bar subsequent suit. The conditions for res judicata are: 5 i. the former suit must have been between the same litigating parties or between parties under whom they or any of them claim; ii. the subject matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit either actually or constructively; iii. the party in the subsequent suit must have litigated under the same title in the former suit; iv. the matter must have been heard and finaly decided; and v. the former suit must have been decided by a court of competent jurisdiction. Back to the case at hand, the DLHT declared Civil Land No. 48 of 2014 res judicata on the ground that the matter was already decided by the Ward Tribunal of Mpui in Civil Land No. 35 of 2012. In my view, the said decision is incorrect. For the principle of re judicata to apply, the above mentioned five conditions must be proved. In this case, the two prerequisites’ conditions of the principle of res judicata were not met, one, in Civil Land No. 35 of 2021 the case was not decided by a 6 competent tribunal. In Civil Land No. 35 of 2012, the applicant was not satisfied with the decision of the Ward Tribunal, hence, decided to file his appeal to the DLHT which was heard and the DLHT nullified the proceedings and judgment on the ground that only two women seated as assessors in the mater instead of three women, contrary to the provisions of law governing hearing of proceedings before the Ward Tribunals. I take note that the Ward tribunals’ power to inquire into and determine land disputes has been overridden by the operation of the law. However, for the purpose of this application, it is crucial to note that the law under section 11 of the Land Disputes Courts Act Cap 216 of 2019 provides for composition of members in the Ward Tribunal. It is therein provided that: “11. Each Tribunal shall consist of not less than four nor more than eight members ofwhom three shall be women who shall be elected by a Ward Committee as provided for under section 4 ofthe Ward Tribunal Act Cap 206.”[Emphasis is mine] 7 In Civil Land No. 35 of 2012 the numbers of women were two namely; Rosemary Chapanga and Patrisia Ngalawa, which is contrary to the mandatory requirement as stipulated under section 11 of the Land Dispute Court Act, as rightly decided by the DLHT. This is evidenced in the Drawn Order issued on 31st January, 2013 by T.J. Wagine, Chairman of DLHT of Sumbawanga. For easy of reference, I quote: “In this case I have no alternative but I hereby quash and set aside the whole proceedings of the ward tribunal, its judgment and orders thereof. I hereby direct the ward tribunal to start afresh the case in compliance of the above provisions of the law. No order as to costs is provided for. So, ordered. GIVEN under my hand and seal of the tribunal this 31st day of January, 2013. Sdg T.J. WAGINE CHAIRMAN” The above passage shows that the DLHT nullified the proceedings and judgment of the lower tribunal and directed the ward tribunal to seat 8 and start a fresh case in compliance of the provisions of the law on composition of members of the tribunal. Therefore, it is obvious that the conclusive final judgment of the Ward Tribunal was issued by the tribunal which has no competent jurisdiction to determine the matter. On the second ground that the DLHT raised the issue of res judicata suo moto while composing the ruling without according the parties the right to be heard, the records reveal that the Chairman raised that issue when he was composing his ruling in Misc. Civil Application No. 155 of 2021 without giving parties an opportunity to submit on that point. Since the Chairman raised the issue suo motu, he ought to have given the parties an opportunity to address it on the very issue of res judicata before pronouncing its position. I find that this was wrong on the part of the chairman since he denied the parties the opportunity to be heard on such issue, which is contrary to the provisions of Article 13 (6) (a) of the Constitution of the United Republic of Tanzania 1977 as amended from time to time, which requires parties to be afforded the right to be heard whenever matters concerning their rights are being determined by a court of law. 9 In the case of Said Mohamed Said versus Muhusin Amiri and Another Civil Appeal No. 110 of 2020 [2020] TZCA 208 (25 April, 2022) it was stated that; “It is therefore plain truth that parties were not heard on the issue of res-subjudice which the learned judge raised and unilaterally determined in his judgment. Following that we are inclined to agree with the parties that they were denied the right to be heard which is a violation of the constitutional right enshrined in Article 13 (6) (a) of our Constitution ofthe United Republic ofTanzania which states that; (a) When the rights and duties of any person are being determined by the Court or any other agency, that person shall be entitled to a hearing and the right of appeal or other remedy against the decision ofthe court or other agency concerned" In this country, natural justice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard among the tributes of equality before the law. No decision must be made by any Court of justice, body or authority entrusted with the power to determine rights and duties so as adversely affect the 10 interest of any person without first giving him a fair hearing according to principles of natural justice. (See: Mbeya-Rukwa Autoparts and Transport Ltd v Jestina George Mwakyoma [2003] T.L.R. 251. Hence, based on the foregoing reasons, it is apparent that the learned Chairman violated the constitutional right of the parties by denying them the opportunity to be heard by on issue of res judicata before making his decision. Thus, owing to the above reasons, I am of the settled view that the Civil Case No. 48 of 2014 was not res judicata; the said matter was instituted after observing to the directives given by the DLHT. It is for this reason that I find that this is a fit case in which this Court can exercise it supervisory and revisional powers under section 43 (1)(b) of the Land Dispute Courts Act [Cap 216 R.E. 2022]. This section bears the following: “In addition to any other powers in that behalf conferred upon the High Court, the High Court (a) N/A 11 (b) May in any proceedings determined in the District Land and Housing Tribunal in the exercise of its original, appellate or revisional jurisdiction, an application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it may thinkfit.” In exercising the above powers, I hereby quash and set aside the dismissal order by the District Land and Housing Tribunal dated on 30th June, 2022 and declares all the proceedings on that date null and void. The Execution No. 155 of 2021 should be scheduled for hearing before another Chairman with competent jurisdiction in accordance with the law. The application is granted. Given the circumstances of the case, I give no order as to costs. It is so ordered. A.A. MRISHA JUDGE 27.12.2024 12 DATED at SUMBAWANGA this 27th December, 2024. A.A. MRISHA JUDGE 27.12.2024 13