JUMANNE SELEMANI AND OTHERS VS ASHA NKONKO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA LAND APPEAL NO. 5582 OF 2024 {Arising from the District Land and Housing Tribunal for Tabora in Land Application No. 97 of2022) JUMANNE SELEMANI KAZIGE ..... 1st APPELLANT MUSSA SELEMANI ...... 2*D APPELLANT MWANNE SELEMANI............... ....... 3RD APPELLANT MLEKWA MAZYENGE.... ....... ......................... ........... . 4th APPELLANT VERSUS ASHA NKONKO ........... RESPONDENT JUDGMENT Date of Last Order: 14.08.2024 Date ofJudgment: 24.09.2024 KADILU, J. In 2022, the respondent filed a land case in the District Land and Housing Tribunal (DLHT) for Tabora praying for the tribunal to declare her the rightful owner of four acres of farmland located at Ilolangulu Ward in Uyui District within Tabora Region. A brief background of the matter is that on 15/09/2014, the respondent bought the disputed land from the Is appellant. On the same day, the 4th appellant presented the dispute to Ilolangulu Ward Tribunal claiming that the suit land belonged to his father, Masyenge Kakulukulu. The Ward tribunal heard the dispute and visited the locus in quo. It promised to deliver the judgment after a month. After a month, the tribunal did not deliver the judgment as promised instead, on 27/10/2014, the tribunal witnessed a sale transaction of the land in dispute between the 2nd and 3rd appellant. The 1st appellant instituted a criminal case (obtaining money by false pretence) in Ilolangulu Primary Court i against the 2nd and 4th appellants in which they conceded that the disputed land belonged to the 1st appellant. However, the battle did not end there. In 2022, the 4th appellant instituted a criminal case (criminal trespass) in Ilolangulu against the respondent. The respondent was convicted and sentenced to conditional discharge. Still motivated to fight for her rights, she then instituted Land Application No. 97 of 2022 as shown above. The DLHT decided the case in favour of the respondent by declaring her the lawful owner of the suit property. It ordered the appellants to vacate the suit land. Also, the DLHT ordered the appellants to pay the respondent costs of the case. The decision aggrieved the appellants hence, they filed the instant appeal armed with the following grounds: 1. That, the trial Chairman erred in law and fact by hearing and deciding the case which had already been determined by the same tribunal. He declared the 4h appellant the lawful owner of the disputed land in exclusion of the first and second appellants. 2. That, the learned trial Chairman erred in law and fact by failing to consider the weight of evidence tendered by the 2nd and 3d appellants that they are the owners of the disputed land after having purchased it in August 2014. 3. That, the trial Chairman erred in law and fact by deciding the case based on weak evidence tendered by the respondent and her witness. 4. That, the trial Chairman erred in law and fact by holding that the respondent is the lawful Owner of the land in dispute after having purchased it 5. That, the trial Chairman erred in law and fact by declaring the respondent the lawful owner of the suit land based on the judgment of the primary court in which not all the appellants were parties. 2 Based on the above grounds, the appellants prayed for the court to quash and set aside the judgment and decree of the DLHT in Land Application No. 97 of 2022, and declare the appellants the rightful owners of the suit land and order the respondent to pay costs of the case. During the hearing of the appeal, the appellants were represented by Mr. Ally Maganga, the learned Counsel whereas the respondent appeared in person without legal representation. Submitting on the 1st ground, Mr. Maganga alleged that the DLHT erred in determining the case which was res judicata because it was already decided by the Tribunal which ordered the respondent to vacate the suit land. According to him, the case was decided on 13/06/2022. He added that there are two judgments of the DLHT; one which was delivered on 13/06/2022 and the other on 19/01/2024. The learned Advocate contended that the first case was delivered by Hon. Waziri, M.H., while the 2nd was issued by Hon. Mourice, E.S. In the 1st judgment, Hon. Waziri ordered the respondent to appeal if she was dissatisfied with the decision. Instead of appealing, the respondent filed a new case in the District Land and Housing Tribunal (Misc. Land Application No. 97 of 2022) which was decided in January 2024. Mr. Maganga referred to the case of Dr. Bhakiiana Agustine Mafwele v. Annaei Gidion Orio and 3 Others, Civil Appeal No. 33 of 2016, Court of Appeal at Dar es Salaam, and argued that the 2nd case by the respondent was res judicata. Also, the learned Counsel supported his allegation by the case of Charles Lata v. Abdallah Mahgi TLR 336. 3 Concerning the 2hd ground of appeal, he submitted that the DLHT erred in declaring the respondent a lawful owner of the land in dispute. She was present when the suit land was sold in 2014 and she witnessed the sale but she did not raise any concern until 2022 when she filed a case on the said land. He elaborated that the respondent testified that she was present when the suit land was sold by the 2nd appellant to the 3rd appellant who handed the land to the 4th appellant and the parties tendered the sale agreement. Mr. Maganga urged this court to step into the shoes of the DLHT and re-evaluate the evidence. On the 3rd ground, he submitted that the DLHT relied on the respondent's weak evidence in reaching its decision. According to Mr. Maganga, the respondent did not prove her case to the required standard. She tendered a sale agreement contending that she purchased the suit land in 2014 but the said land was already sold to the 1st appellant in the same year. Her sale agreement was questionable because she was present in the previous sale but she did not raise a concern that the land was hers. About the 4th ground of appeal, Mr. Maganga asserted that the DLHT erred in declaring the respondent a lawful purchaser of the suit land because the sale agreement between the 1st appellant and the seller was tendered in the Tribunal, it was not proper for the trial Tribunal to hold that Mlekwa Mazyenge was not the rightful owner. Regarding the 5th ground, the Advocate submitted that the DLHT erred in relying on the decision of Ilolangulu Primary Court which was a criminal case and some of the appellants were not parties to it. He said Mlekwa withdrew the said case 4 whereas Mwanne was not party to the case so, she was not supposed to be punished by denying her ownership of the disputed land. Responding to the submissions by the learned Advocate, the respondent stated that it is not true that Mlekwa purchased the suit land. She also refuted the allegation that the case was once heard by the DLHT. She elaborated that the appellants had no sale agreement, which is why they were defeated in the DLHT. According to her, the appellants did not summon any witnesses on their side while her witnesses proved that she was the rightful owner of the land in dispute. The respondent opined that the learned Chairman of the DLHT heard the evidence of all the parties and found her evidence more credible than that of the appellants. She added that Mlekwa purchased the disputed land in the Ward Tribunal. At the same time, he claimed that the land belonged to his father. In the circumstances, it is not clear why he purchased the land belonging to his father. In a brief rejoinder, Mr. Maganga expounded that Mwanne was the one who purchased the suit land from Mussa Selemani and handed it over to her brother Mazyenge to take care of it. I have keenly examined the grounds of appeal, records in the case file, and arguments for and against the appeal. I find the issue for determination is whether the appeal is meritorious or otherwise. In my determination, I will consolidate the second, third, and fourth grounds of appeal because they are intertwined. On these grounds, the appellants are challenging how the DLHT dealt with the evidence presented before it. They are of the view that their evidence was heavier and more credible than that Of the respondent so, they deserved to win the case. 5 A perusal of the record reveals that the respondent purchased the disputed land from the first appellant. To support her position, she tendered the sale agreement, exhibit Pl. It displays that the transaction took place on 15/09/2014 and the sale price was TZS. 250,000/=. On the other hand, the appellants were of a firm view that the suit land belonged to 3rd appellant after having purchased it from the 2nd respondent on 27/10/2014. They tendered exhibit DI which is a prescribed form executed by the Land and Housing Tribunal for Ilolangulu Ward (sic) purporting to transfer the land in dispute from the 2nd appellant to the 3rd appellant. Without much ado, I hasten to conclude that there was no sale of the disputed land from the 2nd appellant to the 3rd appellant as alleged. I hold this view for two reasons. Firsts exhibit DI is a transfer form and not a sale agreement. Therefore, the transfer was not preceded by the sale and it was not known how the 2nd appellant came to ownership of the said land before he purportedly transferred it to the 3rd appellant. Second, the transfer was effected 42 days after the same land was sold to the respondent via exhibit Pl. In that situation, there was no valid sell hence, no title passed from the 2nd appellant to the 3rd appellant. Thus, the second, third, and fourth grounds of appeal are devoid of merits and I dismiss them accordingly. About the 1st ground of appeal, the appellants allege that the Chairperson of the Tribunal determined a dispute which was already determined by it to the finality. It is the finding of this court that this ground is also baseless. I have perused the entire records of the trial tribunal and found nothing concerning the alleged case which was formerly determined by the DLHT for Tabora making Land Application No. 97 of 2022 resjudicata. 6 It is a well-settled principle that for the plea of resjudicataXs successfully operate; (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; (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 finally decided; (v) the former suit must have been decided by a court of competent ju risdiction. In the instant appeal, the Advocate for the appellants gave a seeming statement that the case was resjudicata. He did not provide any details (not even the case numbers or copies of judgments) that would assist this court in gauging the assertion against the conditions enumerated above. Given that the record is silent about the alleged previous case, I find the allegation as a mere statement from the bar that was calculated to mislead the court. Therefore, the 1st ground of appeal is also barren of merit and I dismiss it. Turning to the 5th ground of appeal, the appellants allege that the learned trial Chairman wrongfully based his decision on the judgment of the primary court in which not all the appellants were parties. I have failed to grasp the gist of this complaint. The tribunal's judgment indicates clearly that the reason for declaring the respondent the owner of the suit land is that she purchased it earlier than the 3rd appellant. All that the learned Chairman stated is that since the 2nd and 4th appellants admitted that the suit land belonged to the 1st appellant, they were estopped from denying the representation afterward. 7 The Hon. Trial Chairman cited Section 123 of the Evidence Act [Cap. 6 R.E. 2022] which provides for the principle of estoppel. There was nothing wrong with him referring to the decision of the primary court because, under Section 59 of the Evidence Act, the court is mandated to take judicial notice of all written laws, rules, regulations, proclamations, orders, or notices having the force of law in any part of the United Republic. It is also the law under Section 58 of the same Act that no fact of which a court takes judicial notice needs to be proved. Most importantly, the decision of the trial tribunal was not based on the decision of the primary court as contended. It was a result of the evidence presented before the tribunal by both sides as shown on pages 5 to 7 of the typed proceedings. From the foregoing analysis, I find the appellant's assertation lacking the legal base, henceforth, I dismiss the 5th ground of appeal for want of merit. For the reasons stated above, the court finds the entire appeal devoid of merits. Consequently, I do not see any reason to disturb the findings of the trial tribunal. I, thus, dismiss the whole appeal with costs. The right of appeal is fully explained for any aggrieved party. Order accordingly. zk I <[ kadilu,Tij. firjudge 24/09/2024 8 The Judgment delivered in chamber on the 24th day of September, 2024 in the presence of Mr. Ally Maganga, Advocate for the appellants, and Mrs. Asha Nkonko, the respondent. KADI LU, MJ. JUDGE 24/09/2024 9