JUMA MKOMA AND 12 OTHS Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA LAND APPEAL NO. 27542 OF 2023 (Arising from the decision of the District Land and Housing Tribunal for Manyoni at Kiomboi, Land Appeal No. 51 of 2019) JUMA MKOMA………..………..……….…………………………..……….1STAPPELLANT KIPA NKANA MPUMBU.……..……….…………………………..………2 NDAPPELLANT ROBERT JUMA MADEBE….…..……….………………………………….3RDAPPELLANT JUMAPILI RAMADHANI MSINDIKI..………………………………..…4 THAPPELLANT DOCTOR ABEL MAKARANGA.……….………………………………..…5THAPPELLANT RUDIA SHUMBI HUSSEIN…..……….………………………………..…6THAPPELLANT FRANK YONAA KANDORO…..……….………………………………..…7 THAPPELLANT YONA SAMWEL ELIAS……..…..…….………………………………..…8 TH APPELLANT ROBERT PHILEMON ELIAS..……….……………….………………..… 9THAPPELLANT ERASTO HUSSEIN DOBOGO……….…………………………………..10 THAPPELLANT SAMWEL KILIMBA MGYEE...……….………………………………….11 THAPPELLANT KEFAS YOHANA MSENGI…..……….………………………………..…12 THAPPELLANT ABEL GODFREY KISIWA.…..……….……………..………………..… 13 THAPPELLANT VERSUS GODWIN MBOGO MPAI (As Administrator of the Estate of the Late REUBEN MBOGO MPAI…………………………….RESPONDENT JUDGMENT Date of last order: 10th October, 2024. Date of Judgment: 22nd November, 2024. E.E. KAKOLAKI, J. 1 In this appeal the Court is invited by the appellants to address their grievances voiced in three grounds of appeal challenging the decision of the District Land and Housing Tribunal (the DLHT) for Iramba at Kiomboi in Land Appeal No. 51 of 2019 handed down on 31 st October, 2023, declaring the respondent a lawful owner of the parcel of land measuring 22 acres located at Tulya village, within Iramba District. Briefly this matter has a chequered history as gathered from the proceedings and exhibits tendered before the DLHT for Iramba at Kiomboi. Before the trial Tribunal the respondent who is an administrator of the estate of his late brother Reuben Mbogo Mpai as per the letters of administration of estate (exhibit P1) successful sued the 1 st appellant and 12 others who traced their title from the 1 st respondent through sale, over the disputed land in 22 acres located at Tulya village, within Iramba District which he claimed to be lawfully owned by the said late brother as it was declared by the said trial tribunal that the land is legally owned by the deceased. It is was respondent’s case premised on evidence of seven (7) witnesses, that his late brother who passed away in 2008 acquired the said land from the 1st respondent more than 25 years ago, when the later handed the disputed land to Reuben Mbogo Mpai (deceased) in exchange with four (4) oxen before he later on added him other four heifers. 2 As alluded to above the late Reuben Mbogo Mpai continued to use the said disputed land for more than 12 years until when he passed away in 2008 when the same allegedly continued to be under care of Zabron Mbogo. During the trial these facts were not contested by the appellants. It was 1 st respondent’s defence corroborated by ten (10) defence witnesses that, the said Zabron Mbogo continued to make good use of the said disputed land until 2011 when he approached the 1st respondent and unlawfully took back the said eight (8) cattle that were in his possession for more than 25 years on assertion that, the same formed part of the estate of the late Reuben Mbogo Mpai hence liable for division to his heirs. It was that act which aggrieved the 1st respondent and decided also to recover his piece of land from Zabron Mbogo before the later unsuccessfully sued him before the Tulya Ward Land Tribunal in Civil Case No. 2 of 2011 where the former was declared lawful owner of the said 22 acres. Displeased the said Zabron Mbogo unsuccessful appealed to the DLHT for Iramba at Kiomboi in Land Appeal No. 11 of 2011, as his appeal was dismissed for want of merit by upholding decision of the trial Ward Land Tribunal. Undaunted he preferred an appeal to this Court in Misc. Land Case Appeal No. 11 of 2012, but the same could not go on merit as the appellant (Zabron Mbogo) withdrew it as 3 exhibited in this Court’s order of 30/09/2014. The three above decisions from the Tulya Ward Land Tribunal No. 2 of 2011, DLHT for Iramba at Kiomboi in Land Appeal No. 77 of 2011 and this Court in Misc. Land Case Appeal No. 11 of 2012 between Zabron Mbogo and Juma Mkoma were tendered by the 1st respondent before the trial Tribunal in Land Case Application No. 51 of 2019 subject of this appeal as exhibit D1 collectively, in a bid to further appellants’ claim that, the said land in which the 2 nd to 13th appellants trace their title from, is lawfully owned by him hence lawfully disposed to them and that, the suit by the respondent is res judicata as the respondent had sued them on the same land, the defence which was rejected the trial tribunal after having evaluating the evidence from both sides and proceeded to hold that, the disputed land is lawfully owned by the late Reuben Mbogo Mpai who is legally representative by the respondent as the transaction for exchange of land with oxen amounted to sale of land. It reasoned that, judgments in land matters are decisions in persona and not in rem, thus appellants ought to have sued the respondent for conversion and not trespass, hence a decision in favour of the respondent as the decision in the dispute between the 1 st appellant and Zabron Mbogo could not have affected title over the disputed land held by the late Reuben Mbogo Mpai. It is that decision which displeased 4 the appellant hence the present appeal which as intimated above is grounded on three grounds of appeal going thus: 1. That the Trial Tribunal erred in facts and law in holding that the suit before it was not Res -judicata, thus determined the same on its merits contrary to the law. 2. That, the Trial Tribunal misinterpreted the evidence adduced before it by the appellants herein as such arrived at an erroneous conclusion that the suit land belongs to the estate of the late Reuben Mbogo Mpai while evidence was overwhelming in favour of the appellants herein. 3. That, the Trial Tribunal erred in fact and law in deciding the case against the weight of evidence adduced before it thus occasioned a miscarriage of justice to the appellants. In view of the above narrated grounds of appeal this Court is prayed to allow this appeal with costs. Both parties were represented during hearing of the appeal as the appellants hired the services of Mr. Godwin Benda while the respondent enjoying the services of Ms. Zahara Chima, both learned advocates. It was Mr. Benda who staged on the floor first to argue the appeal canvassing all grounds of appeal in seriatim, the order which this Court has 5 also opted to adopt in this judgment by disposing one ground after the other. In the first ground it was Mr. Benda’s argument that, the trial tribunal lacked jurisdiction to entertain the suit as the matter under contest in this matter is res judicata to the case between Zabron Mbogo and the 1st Respondent that started from the Tulya Ward Land Tribunal, unsuccessfully passed through the DLHT for Iramba at Kiomboi before the appeal preferred by the said Zabron Mbogo ended up with withdrawal before this Court as exhibited in exhibit D1 collectively, where the 1st appellant was declared lawful owner of the suit land, the evidence which is also corroborated by PW2 and PW5 as well as DW2 and DW3. To the contrary he argued, the respondent who is suing as administrator of the estate of Reuben Mbogo is claiming the same land in which the 1st appellant won against Zabron Mbogo as exhibited by decisions in exhibit D1 collectively, since the three Mbogo’s are blood related bothers sired from the same father. It was the learned counsel’s submission that, since the land subject of judgment in exhibit D1 collectively adjudged in disfavour of Zabron Mbogo is the same land in which the respondent sued on as representative of his late brother Reuben Mbogo Mpai, the tribunal’s act of entertaining the dispute on the same piece of land comprising of 22 acres went against the provision of section 9 the Civil Procedure Code, [Cap. 6 33 R.E 2019], for being res judicata. He relied on the case of Athanas T. Masssinde t/a Abet Primary School Vs. Gabriel Tanaki and Others [2003] TLR 312 and prayed the Court to uphold this ground and come up with the finding that, the Tribunal was incompetent to try this matter hence set aside the judgment and its orders. Countering appellant’s submission on the 1 st ground of appeal Ms. Chima contended that, guided by the provisions of section 9 of the CPC, the matter at hand is not res judicata as parties in Land Appeal No. 77 of 2011 before the DLHT for Iramba and other subsequent proceedings are distinct from the one in the present appeal. That aside she claimed, parties also are different as Zabron mbogo was claiming the land in his personal capacity against Juma Mkoma in Land Appeal No. 77 of 2011, while in the present matter parties were increased. She also said that, issues for determination in the two matters were different as in the former case it was whether the appellant inherited the suit land from his late father while in the present matter is whether there was sale when parties exchanged cattle with land. She added that, it is from those plain facts the trial tribunal in the impugned Judgment was satisfied that, the matter under consideration was not res 7 judicata hence proceeded to determine the same. Further to that she argued, in this matter the respondent was claiming for 22 acres in which the litigated land in the previous suit was 8 acres of land. It is from all those facts and evidence the learned counsel for the respondent submitted that, the matter at hand is not res judicata hence prayed for dismissal this ground. In rejoinder Mr. Benda while admitting that, it true in the cases decided earlier on between Zabron Mbogo and 1st appellant parties are distinct from the present one he insisted that, the subject matter is the same. Otherwise, he reiterated his submission in chief. I have paid due regard to the contending submission by the parties and took time to revisit the evidence adduced before the trial court. The issue for determination in the first ground of appeal is whether the trial tribunal lacked jurisdiction to entertain the matter at hand on the sole reason that, the same is res judicata to the suit related to Zabron Mbogo and the 1 st respondent. The doctrine of res judicata is provided for in section 9 of the Civil Procedure Code, [Cap. 33 R.E 2019] (the CPC). Its object no doubt is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgment between the same parties or their privies on the same issue 8 by a court of competent jurisdiction in the subject matter of the suit. See the cases of Peniel Lota v. Gabriel & Others [2003] TLR 312 and Michael Obriel (Administrator of the estate of the late Obriel Okinyi) Vs. Agek Odiek and Another, Civil Appeal No. 422 of 2022 (CAT) Tanzlii. The said section 9 of the CPC, is coached in the following terms: "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court." The above cited provision in my considered view provides for five preconditions which appear to be conjunctive. This means that, all preconditions indicated above must be present before a suit or an issue is deemed res judicata. The said pre conditions are; one, the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; two, the former suit must have been between the same parties or privies claiming under them; three, the parties must have litigated under the same title in the former suit; four, the court which decided the former suit must have been competent to try the 9 subsequent suit; and five, the matter in issue must have been heard and finally decided in the former suit. The above pre conditions have been adumbrated by the Court in numerous decisions. For instance, in Yohana Dismas Nyakibari and Another Vs. Lushoto Tea Company Limited and 2 Others, Civil Appeal No. 90 of 2008, East African Development Bank Vs. Blueline Enterprises Limited, Civil Appeal No. 110 of 2011 (both CAT-unreported) and Michael Obriel (Administrator of the estate of the late Obriel Okinyi) (supra), to mention a few. Applying the above conditions in the present matter, I find only existence of the third and fourth conditions to have been established. The third condition is established through the decisions in exhibits D1 collectively that, in the former cases it is the same land measuring 22 acres located at Tulya village within Iramba District in which the 1 st appellant and Zabron Mbogo were contesting for, which the same land is also contested in the present matter. As to the fourth condition, parties are at one that the court or tribunals that determined the former case had jurisdiction entertain it. Regarding the first condition this Court is not convinced that, the matter in the former cases is directly and substantially the same to the one under contest in the present matter. It is so viewed as glancing at exhibit D1 10 collectively it is an open fact that, in the former case it is Zabron Mbogo who sued the 1st appellant alone while tracing his title over the disputed land through inheritance from his late father contrary to what is now claimed by the respondent supported by six (6) witnesses that, his late brother acquired title over the disputed land through exchange of commodities. Meaning exchanged of land and oxen. That aside even the basis for determination of the two matters do differ as the issue in the former case was whether Zabron Mbogo had a acquired the disputed land through inheritance from his father as claimed in the pleadings the claim which was answered in negative or disfavour of Zabron Mbogo while in the present matter the issue for determination was whether the said land was acquired by the late Reuben Mbogo Mpai through sale in which the trial tribunal answered it in affirmative. As the claimed modes of acquisition of the disputed land by the applicants in the two matters differ as well as the parties and issues for their determination it cannot be appreciated by this Court that, the present suit was directly and substantially the same to the former one. Next is the second condition in which I find the appellants failed to establish as parties in the two matters do differ as rightly conceded by Mr. Benda when rejoining respondent’s submission. Lastly is the fifth condition in which the issue is 11 whether the matter at hand was heard and determine in the former proceedings. I think this issue need not detain this Court much as it is already found that parties in the two matters were different leave alone the issue for determination. Much as parties and issues for determination of the two matters differ materially, it cannot not be concluded that, the dispute in the present matter was heard and conclusively determined in the former case. As the appellants have failed to demonstrate to this Court’s satisfaction that the 1st, 2nd and 5th conditions exist in this matter conjunctively and since, all five conditions ought to have been conjunctively established, I find this Court suffering from any reason leave alone sound one warranting interference of the trial tribunal’s findings on the raised ground of res judicata. This ground I hold fails. Next for determination is the second ground of appeal where Mr. Benda is faulting the trial tribunal’s findings that, the exchange of land and cattle (oxen) for ploughing between the 1 st and the late Reuben Mbogo Mpai amounted to sale submitting that, it was total misdirection premised on its failure to properly interpret the evidence of the 1 st appellant (DW1) as appearing at page 39 of the typed proceedings corroborated by that of DW2, DW3 and DW4 proving that, the disputed land was given to the late Reuben 12 Mbogo Mpai in exchange with the cattle for tilling the land/soil. According to him there was no any other evidence for the trial tribunal to rely on to base its conclusion that, the exchanged land was sold to the late Reuben Mbogo Mpai hence his declaration as a lawful owner, thereby praying this Court to find the ground merited and allow the appeal. In response Ms. Chima retorted that, the trial tribunal correctly found the respondent is the lawful owner of the piece of land under dispute as before the trial Tribunal no single witness testified to have witnessed the alleged cattle returned to the family of Reuben Mbogo Mpai. She therefore submitted this ground of appeal is lacking in merit too. In rejoinder Mr. Benda informed the Court that, the proof that the said cattle were returned to the late Reuben Mbogo Mpai’s family is found in the judgment in Land Appeal No. 77 of 2011 (exhibit D1 collectively) hence invited the court to find there was no disposition of land by way of sale. I have dispassionately considered the fighting submission by the parties as well as the evidence adduced by the parties before the trial tribunal. The issue for determination before this Court on the second ground of appeal is whether the trial tribunal was correct to find the respondent acquired the disputed land by way of sale when exchanged it with oxen. It is a common 13 principle in civil matter that, he who alleges must prove and the standard of proof is on the balance of probabilities as dictated in the provisions of section 110(1) and (2) and 3(2)(b) of the Evidence Act, [Cap. 06 R.E 2022]. See also the cases of Abdul Karim Haji Vs. Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004, Godfrey Sayi Vs. Anna Siame as Legal Representative of late Mary Mndolwa, Civil Appeal no.114 of 2014 (Both CAT-unreported). Balance of probability simply means that the Court will sustain such evidence which is more credible that the other. See the case of Paulina Samson Ndawavya Vs. Theresia Thomasi Madaha, Civil Appeal No. 53 of 2017 (CAT-unreported). In the present matter parties are at one that, there existed a transaction between the late Reuben Mbogo Mpai and the 1st appellant whereby the deceased handed the 1st appellant four oxen for ploughing and later on four heifers in exchange of 22 acres of land. This fact also earns confirmation from the evidence of 1st appellant himself (DW1), DW2, DW3 and DW4. To appreciate what DW1 told the trial tribunal, I find it apposite to reproduce part of his evidence as found at page 39 of the typed proceedings: ’’I know the late Reuben Mbogo. He is a relative of mine. His father and my father were relative. We were in good terms with 14 Reuben Mbogo. Reuben Mbogo gave me 4 oxen to plough and I gave him the land which is now in dispute. I used the oxen for one year and later brought four female cows. I took care of the cows for 42 years Reuben Mbogo then passed away. That is when the dispute arose, when Zabron Mbogo came and took the cows to his place. That is when I demanded the return of my land and the dispute arose at the ward tribunal….’’ From 1st appellant’s own testimony there is no dispute that, there was a contract between him and the late Reuben Mbogo whereby the oxen were consideration for the purchase of the piece of land in dispute. I so conclude as it is gathered form 1st appellant’s own testimony that cows were used as consideration for the purchase of land in those days. He so stated when cross examined by the respondent’s advocate as reflected at page 41 of the proceedings on how his late father acquired the disputed land where he averred thus: ’’My father bought the land from Mzee Doko many years, before I got married. He bought the suit land for 6 cows.’’ From the excerpt in 1st appellant’s evidence as cited above it is obvious, cows were used as consideration for the purchase of piece of land. In this matter since there is no contrary evidence from the said 1 st appellant that, the said four oxen and other heifers never constituted consideration for the sale of disputed land and given the fact that, he had stayed with the said cattle for 15 more than 42 years as averred in her evidence hence reproduced themselves it is beyond human comprehension to think that, collection of said cows/cattle from him by the said Zabron Mbogo without his consent nullified the existed sale as ownership of disputed land had already passed to the late Reuben Mbogo Mpai through the said sale. If anything, the 1st appellant ought to have sued the said Zabron Mbogo for stealing his cattle as there is no evidence that, he was acting instruction of the family of the late Reuben Mbongo Mpai nor was he appointed administrator of his estate to demand back the said cattle on his behalf. In my humble view since there was transfer of land title from the 1st appellant to the late Reuben Mbogo Mpai the same could not have been invalidated by the acts of Zabron Mbogo and that is why even in Land Appeal No. 77 of 2011 (exhibit D1 collectively), the latter is quoted to have claimed the same land on his personal capacity, allegedly bequeathed from his late father and not as administrator of the late Reuben Mbogo Mpai. It is settled law in our jurisdiction now that land ownership can be acquired through different ways. These are, one, allocation by the Government authority, two, sale, three, inheritance, four, gift, five, adverse possession and six, clearance of unoccupied bushes. See also the decisions of this Court in Serikali ya Kijiji Karumo Vs. 16 Wahalalika Siyonka, Land Appeal No. 02 of 2021 and Ramadhani Rashid Kuhuka Vs. Jela Maiko Meja and 44 Others, Land Case No. 25 of 2022 (both HC) Tanzlii. In this matter since the title in the disputed land passed from the 1st appellant to the late Reuben Mbogo Mpai by way of sale, I uphold the trial tribunal’s finding when found that, the suit land belongs to the late Reuben Mbogo Mpai who purchased it from the 1 st respondent for consideration of cattle. With that conclusion the raised issue in the 2 nd ground of appeal is answered in affirmative and proceed to hold the ground is unmerited. Lastly is the third ground whereby appellants are assailing the trial tribunal decision for deciding against the weight of evidence adduced hence miscarriage of justice. In his submission in support of the ground Mr. Benda complained the court that, the evidence as presented by the appellants was to the effect that, the late Reuben Mbogo Mpai was given land by the 1 st appellant in exchange with the oxen and not disposition by way of sale as found by the trial tribunal the land which reverted back to 1 st appellant after his death hence correct findings and opinions of the assessors which were disregarded by the tribunal. He said, the appellants’ evidence was heavier than respondent’s one hence the case ought to be decided in favour of the 17 appellants. He relied on the case of James Funke Gwagilo Vs. Attorney General (2004) TLR 161 where it was held that, the party whose evidence is heavier than the other will be declared winner as against the party whose evidence is weaker. In reply Ms. Chima held the contrary view when submitted that, appellants’ evidence was full of contradictions that weakened it. She said for instance other appellants claimed to have purchased land from the 1st appellant and their agreements reduced in writing but never tendered any documentary exhibits to prove their assertion. The other contradiction she mentioned comes from the evidence of DW11 who testified that, he acquired land through sale from the village land council something which contradicts 1st appellants evidence that he sold all other appellants their pieces of land. And that, it is this same witness who failed to bring witness from the village land council or tender any sale agreement to exhibit his claims. Relying on the case of Hemed Said Vs. Mohamed Mbilu (1984) TLR 113 where the Court said the party whose evidence is heavier than the other must win the case, Ms. Chima prayed this court to find respondent’s evidence was heavier than appellants’ and proceed to dismiss the appeal as other appellants were not even covered by grounds of appeal in this appeal. 18 In rejoinder Mr. Benda argued that, it is true other appellants were not covered much by this appeal since they trace their title from the 1 st appellant. On the contention that there was contradiction in the appellants’ evidence Mr. Benda resisted the reply submission by the respondent arguing that, the same were not touching the issues for determination in which the main one is whether the respondent acquired land by way of sale or not as decided by the trial tribunal. In view of that submission, he reiterated his submission in chief and urged the court to allow the appeal. I have internalized the contending submission by the parties. The issue for determination is whether the trial tribunal disregarded the evidence adduced by the appellants which carried more weight than that of respondent. I think this ground need not detain me much. While I appreciate the settled law as spelt in the case of Hemed Said (supra) and James Funke Gwagilo (supra) that, the party whose evidence is heavier than the other must be declared a winner, I distance myself from Mr. Benda’s submission that in this matter appellant’s evidence is heavier than the respondent’s one. I so do as it is already held herein above that, the late Reuben Mbogo Mpai lawfully acquired the disputed land and retained the same even after his passing on since the taking back of cattle by Zabron Mbogo without any legal 19 authorization from the deceased’s family and who was not also deceased’s administrator of estate, could not have vitiated the sale and/or annul his title over land. Further to that, since the other appellants are alleging to have acquired their land from the 1st appellant whom this court considers to have had no title to pass to them, all appellants remain with no any legal justification to claim ownership over the disputed land. On the balance of probabilities and the living principle as obtained in Hemed Said (supra) and James Funke Gwagilo (supra), this court is satisfied and therefore make a finding that, the respondent’s evidence is heavier than that of appellants. In the premises and for the afore stated reasons this appeal is devoid of merit as there is no legal justifiable reasons warranting this Court to fault the trial Tribunal’s decision. The same is therefore dismissed in its entirety with costs. Ordered accordingly. Dated at Dodoma this 22nd of November, 2024. E. E. KAKOLAKI JUGDE 22/11/2024. 20 Court: The Judgment has been delivered at Dodoma today on 22 nd day of November, 2024, in the presence of Mr. Costantino Gwivaha, advocate holding brief for advocate Chipson Chidumage for the appellants, Mr. Elizabeth Kagembe, advocate holding brief for Ms. Zahara Chima, advocate for the Respondent and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 22/11/2024. 21