Juma Egidio vs Paskalia Chipuzi Revision

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA MISC.CIVIL APPLICATION No. 7257 OF 2024 REFERENCE No. 202403261000007257 (Originating from Land Appeal No. 17 of2022 of the High Court of Tanzania at Sumbawanga) JUMA EGIDIO............................................................................ APPLICANT

VERSUS

PASKALIA CHIPUZI RESPONDENT

JUDGMENT MWENEMPAZI, J. This judgment is in respect of the application for revision filed by the applicant herein under Section 78 and Order XLVII Rules 1 and 3 of the Civil Procedure Code [Cap. 33 R.E. 2019], in which he was aggrieved by this court’s judgment made on the 29th day of February, 2024 in Land Appeal case No. 17 of 2023. He thus applied for review of the said judgment on the following ground that; - Thereismanifesterrorin thefaceofrecords,this Honorouble Courtmadeitsdecisionbasedonthegroundsofappealwhichhas ceased to have any legal effect, extinguished by amendment 1 orderedonthe22nddayofMarch,2023andfiledonthe29 thday ofMarch,2023. From the ground above, the applicant herein prayed for this court to allow this application and make a review of its judgment and thereto compose a new judgment based on the amended grounds of appeal as filed by him. On the hearing date, the applicant was represented by Ms. Veronica Mwanicheta learned Advocate while the respondent had no legal representation and therefore, she fended off for herself. Basing on the ground filed for application, Ms. Mwanicheta submitted that her client prays for this court to review its judgment as the grounds used to construct it ceased to exist because there were grounds of appeal which were filed on 29/03/2023 pursuant to an order of this court of 22/03/2023. She insisted that, her client prays that

this court allows this application and recompose it judgment basing of on the grounds found on the amended petition of appeal, as the intention is to achieve justice. In response, the respondent opposed the application and stated that the applicant had no any evidence in the trial tribunal. 2 Ms. Mwanicheta made no rejoinder, and therefore it was this court’s turn to determine this application if it had merits. As I perused the said judgment made on the 29th of February, 2024, it is true the grounds used in determining the matter in question ceased to exist as there was an amended petition of appeal which was filed to this court on the 29th of March, 2023. In that, I do concede there was a manifest error and consequently proceed to allow this application. Having noticed that, I proceed to determine the matter in question whereas the applicant (appellant in Land Case No. 17 of 2023) was aggrieved by the decision of the District Land and Housing Tribunal for Rukwa (DLHT) dated 31st May, 2022 in which it declared the respondent herein as the lawful owner of the disputed land located at Ulimi village, and the applicant was ordered to grant vacant possession of the disputed land to the respondent. The applicant then raised two grounds of appeal in his amended petition of appeal in rebuttal of his earlier petition which had four grounds. The two grounds of appeal are reconstructed

herein; i. That,thetrialcourterredinlawandfactinevaluatingthe evidence on ownership of the disputed land which was adducedbythepartieshencereachedtoawrongdecision. 3 i.That, the trial court erred in law by entertaining the case whichwasbarredbythedoctrineofResJudicata. From the grounds above, the applicant prayed for the judgment of the DLHT be quashed, set aside and be declared that he is the lawful owner of the disputed land and the costs of the case be borne by the respondent. The hearing of the case was by way of written submissions, in which the applicant started off by submitting for the second ground of appeal that, the application at the DLHT was res judicata as it was barred under Section 9 of the Civil Procedure Code [Cap 33 R. E. 2019] and Section 42 of the Evidence Act [Cap 6 R. E. 2022]. He insisted that the written statement of defence filed by the appellant at paragraph 5 it is attached with annexure J.E 1 and J.E 2 which are judgments of Ulimi Ward Tribunal. He submitted further that, in 2015 the respondent filed the land dispute at Ulumi Ward Tribunal against the applicant on the same disputed land, where the applicant won the case. That, the respondent was aggrieved and lodged the Land Appeal before the DLHT where the trial record was missing. Then, the appellate tribunal quashed the proceedings and decision thereto and ordered a trial de novo. 4 He added

that, on the 13th of May, 2016, the respondent opened a land dispute against the appellant and the latter was again declared to be the lawful owner of the disputed land on the 07th of June, 2016. That, the respondent did not appeal against the said decision instead in 2020 she decided to open a fresh case before the DLHT which was not allowed by the law. He submitted further that, in Application No. 28 of 2020 and the judgment of Ulumi Ward Tribunal of 2016, the parties were the same, the disputed land was the same, litigating under the same title, former Ulumi ward tribunal had jurisdiction and the case was finally decided. That, all the requirement for the applicability of principle of res judicata existed, and therefore the trial court erred in law by entertaining the case which was barred by the said doctrine. It was the applicant’s emphasis in citing the case of Pravin Girdhar Chavda vs Yasmin Nurdin Yusufali, Civil Appeal No. 165 of 2019, CAT at DSM (unreported) at page 6-7 where it was held that:­ ". the law in this country, like the laws of other jurisdictions, recognizesthat,likelife,litigationhastocometoanend. Thosewhobelievethatlitigationmaybecontinuedaslongas legal ingenuity has not been exhausted are clearly wrong. 5 Therefore, the object of section 9 of the CPC is to bar multiplicity of suits and guarantee finality to litigation.

It makesconclusiveafinaljudgmentbetweenthesame partiesortheirpriviesonthesameissuebyacourtof competentjurisdictiononthesubjectmatterofthesuit.” The applicant insisted that the Court observed further that; "Paties are not permitted to begin fresh litigation because of new views they may entertain on the law of the case or new versions which they present as to what should be a proper apprehension, by the Court of the legal result. If this were permitted, litigation would have no end excerpt when legal ingenuity is exhausted. ” The applicant therefore insisted that the overarching policy objective is being to ensure that litigation comes to an end. Submitting on the first ground of appeal, the applicant stated that the he adduced proved on the required standard that he is the lawful owner of the disputed land measured 2 acres. That he acquired the same in 2009 from his father. He added that, the disputed land was purchased by his father from Raymond Generiko Chipuzi. That, he (applicant) was 6 however declared the lawful owner of the land in question by the Ulumi Ward Tribunal. The applicant proceeded that; the respondent failed to prove to the required standard on the ownership of the disputed land. That, she alleged to have been given the disputed land in 1972, but she does not know the size of the land in question. That, SM2 testified that the respondent was given the disputed

land in 1982 by her father, and SM3 does not even know when the respondent was given the disputed land. The applicant was of the view that, if the evidence of both sides was to be compared, the evidence adduced by the applicant was heavier than the respondent’s evidence. In that, the respondent was not supposed to be declared as the rightful owner of the land in question. The applicant referred this court to the case of Hemedi Saidi vs Mohamedi Mbilu [1984] TLR 113, where it was held that: - "Cccoriing to law both parties to a suit cannot tie, but the person whose evidence is heavier than that of the other is the onewhomustwin.” Based on the submission he has made, the applicant prays for the judgment of the DLHT to be quashed and set aside, and that he be 7 declared the lawful owner of the disputed land and the costs of the appeal be borne by the respondent. Responding to the submissions filed by the applicant (appellant), the respondent firstly submitted that is to her surprise that the applicant has argued on the grounds which were not raised in the Memorandum of Appeal, and she invited this court to believe that the grounds argued were the ones which were not served to her. That, in her perusal of the records she has, she only found four grounds of appeal and that she is not aware if there is in this court’s records any order for amendments of the grounds of appeals to

nullify the four grounds known to her, and she therefore prayed for the intended appeal be dismissed in its entirety as per Rule 2 and 3 of Order XXXIV of the Civil Procedure Code, Cap 33 R.E. 2019, which stresses that, a party cannotargue on a ground ofappeal which was not raised in the memorandum of appeal unless he seeks permission and is alowed by the court. Nevertheless, the respondent wisely opted to submit against the grounds submitted by the applicant starting with the first ground as she insists that in her records the said grounds are nowhere to be found. She submitted that the trial tribunal correctly evaluated the evidence on ownership of the disputed land which was adduced by the parties, hence reaching to a fair and just decision. She added that, in page 4 of the 8 trial tribunal’s judgment, it was stated clearly that the evidence of the respondent herein (SM1 in the trial tribunal) proved that she acquired the land in dispute since the year 1972 from her parents and used the same until 2004 when the applicant illegally intruded in the same land in which the said evidence was supported by the respondent’s witness (SM3 in the trial tribunal) who said the applicant trespassed into the respondent’s land. She submitted further that, it is not true that the evidence of the applicant was heavier than hers, the records shows that the applicant was the only witness and

failed to call other witnesses to support his evidence while the evidence of the respondent was supported by other witnesses who added the credibility of her evidence. She insisted that as shown at page 4 of the trial tribunal’s judgment, the applicant alleged that he was given the land in dispute by his father who purchased it from Raymond Geremaniko Chipuzi, but there was no any sale evidence adduced to prove that, neither did he call any witness to prove the said sale. Submitting against the second ground, the respondent submitted that the records in the judgment of the trial tribunal does not show that there was any judicial decision which was pronounced by the court with competent jurisdiction adduced as evidence by the applicant to declare 9 his ownership of the land in dispute as alleged in his submission. The respondent insisted that being the first limb in existence of the doctrine of res judicata. She submitted that, there has never been any records at the DLHT which can justify that the matter was finally determined by the alleged ward tribunal. That, as the matter of procedure, in her opinion if the applicant was sure that there existed such records, then he had the following rooms which are NOT OPEN at this juncture; i. To raise at the time of the earlier suit in the DHLT as a Preliminary Objection to challenge the legal competence of the application. ii. To tender

as evidence in the DHLT the judgment of Ulumi Ward Tribunal to prove that the case was finally decided and the sale agreement to prove the alleged purchase transaction. iii. To set as a ground of appeal when he filed the same on 12/07/2022 at the High Court. iv. To pray for amendment of the Memorandum of Appeal at the High Court during routine proceedings. The respondent then quoted the submission made by the applicant at page 2 of his submissions which narrated that at the DLHT where the applicant had filed his appeal, the Ulumi Ward Tribunal’s records were missing and the matter was ordered to be tried de novo. She insisted 10 that, the fallacy connotes that the records missed at the DLHT and thus there was no means that the same matter could proceed as an appeal but a fresh application. She clarified further that, as she filed a fresh application, the applicant did not tell the tribunal on the alleged point. That, the question is, whetherthiscanberaisedatthisjuncture. The respondent firmly holds that it is not the business of this court to determine this issue at this juncture, it is enough to say that ‘the records missed’ at the DLHT and no more blunder needed to be entertained as the applicant is trying to mislead this court. However, she insists that she has a lot of facts on the fallacy ‘the record missed’ but chose not to argue on the same as it was not even in the

Memorandum of Appeal. For the foregoing reasons, she prays that this appeal be dismissed in its entirety for it has no limbs to stand on. There was no any rejoinder made by the applicant, and therefore this court proceeded to determine whetherthis appeal has merits before it. I should firstly clear the air that, indeed the applicant had prayed for amendment of his memorandum of appeal. This is revealed on the proceedings of this court in which the coram was dated 22/03/2023 where the applicant was represented by Ms. Frida Swalo learned 11 Advocate who was holding brief for Mr. Peter Kamyalile learned Advocate. The learned counsel prayed for leave of this court that he amends the memorandum of appeal, and the leave was granted and he was ordered to file the amended memorandum of appeal within seven days, in which the seventh day was the 29th of March, 2023, and he adhered. Therefore, the respondent should be rest assured that the grounds submitted by the applicant were filed to this court and they are in the court’s records. In determining this appeal, I will address the two grounds of appeal as filed in the amended memorandum of appeal. Starting with the second ground, as the applicant did. Again, contrary to what the respondent submitted, this fact that this matter is res judicata was raised by the applicant at the DLHT on the 08th day of June, 2020. However, the DLHT ruled

out that this matter was not a res judicata as the applicant failed to tender the decision and proceedings of the Ward Tribunal of Ulumi as he alleged that the same had finally decided the matter. The ruling was delivered on the 11th day of 2021. The applicant had submitted that on the 13th day of May 2016, the respondent filed a suit against him at the Ward Tribunal of Ulumi as instructed by the DLHT on the 05th day of May, 2016, in Land Appeal 12 case No. 55 of 2015, but the Ward Tribunal again declared him as the lawful owner on the 07th day of June, 2016. It is with shame that, after an exhaustive submission, the applicant failed to tender the case number that had declared him as the lawful owner but he only tendered a dated decision which has declared him the lawful owner. The doctrine of Res Judicata refers to a situation when 'a final judgement on the merits' issued by a competent court on a claim, demand or cause of action between parties constitutes an absolute bar to a 'second lawsuit on the same claim' between the same parties. See: Village Chairman - K.C.U. Mateka vs Anthony Hyera [1988] TZHC 35 (17 October 1988). At the DLHT, the applicant tendered a document that indeed was titled as follows; “MAAMUZI (HUKUMU) YA BARAZA LEO TAREHE 07/06/2016

KUTOKANA NA KESI YA ARDHI YA PASKALIA CHIPUZI NA JUMA EGEDIO.” Nevertheless, at the end of the said decision above it was stated as follows; 13 "...Kwa hiyo familia ya SIKENEDI SIAME itaendelea kumiliki eneo hilo pasipo kubugudhiwa na mtu yeyote. Huo ndio uamuzi (hukumu ya baraza leo tarehe 07/06/2016).” I find this document too wanting to suffice to hold that indeed this matter at hand is res judicata, firstly, the title did not specify the case number but only the parties, and secondly, at the end, a completely new party has been handed over the ownership of the land in dispute. With these records before me, I hold this matter not to be a res judicata and therefore this ground is dismissed. Coming to the first ground, it is also true that in civil litigations it is the principle of law that the partyJwhose evidence is heavier than the other is the one who deserves to be declared the winner. See, Hemed Saidi vs Mohamed Mbilu (1984) TLR 113. It is in the records that the respondent claimed to have been given the disputed land by her parents in the year 1972 and she used the same up until the year 2004 when the applicant trespassed the boundaries of the same. Her testimony at the DLHT was supported by her witness labelled as SM3. On the other hand, the applicant claimed to have been given the disputed land by his father in which his father had bought the same from a person known

as Raymond Geremaniko Chipuzi in 1998. Nevertheless, the applicant neither summoned any witness to 14 corroborate his testimony nor did he tender any document in support of the same. Weighing up the two sides, I too (as the DLHT did) find the respondent’s evidence to be heavier than that of the applicant. Therefore, this ground is also dismissed. Consequently, I find no merits in this appeal and without any wastage of time, I proceed to dismiss it. The decision of the District Land and Housing Tribunal is hereby upheld. Costs should follow the event. It is ordered accordingly. Dated and delivered at Sumbawanga this 08th day of November, 2024. T. M. MWENEMPAZI

JUDGE Ruling delivered in judge’s chamber this 8th day of November, 2024 in the presence of the Peter Kamyalile, Advocate for the applicant and T. M. MWENEMPAZI

JUDGE 15