kaboya pastory henryadministrator of the estate of the late hadija kondo vs tharcis alois sambua 2022 tzhclandd 12699 16 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 228 OF 2022 (Originating from the Judgment and Decree in Land Application No. 139 of 2013 at District Land Housing Tribunal for Ilala delivered on 29 August 2022, Hon. A.R Mjanja, Chairman) KABOYA PASTORY HENRY (administrator of the estate of the last of the Estate late HADIJA KONDO).......... APPELLANT VERSUS THARCIS ALOIS SAMBUA .................................................. RESPONDENT RULING Date oflast Order: 05/12/2022 Date of Ruling: 16/12/2022 K, D. MHINA, J, This ruling is on the preliminary objection raised by the respondent in this appear which arose from the decision of the District Land and Housing Tribunal (the DLHT) for Ilala in Land Application No. 139 of 2013, dated 29/08/2022. In response to the appeal, the respondent countered it through a preliminary objection that canvassed only one ground, namely; Z that the appeal is resjudicata i A brief factual background of the facts may be instructive in order to appreciate the nature of the preliminary objection. The matter originated from the District Land and Housing Tribunal for Ilala in Land Application No. 139 of 2013, whereby the appellant sued the respondent over the ownership of a suit premises, House No. 25/15, located at Ilala Mchikichini Area. The appellant claimed that the house in dispute belonged to the estate of the late Hadija Kombo, who had occupied it since 1970. On the other hand, the respondent asserted that he acquired the house as a gift from the late Mwajuma Mussa, who gave him out of her love and natural affection. In its decision dated 2 December 2020, the Tribunal dismissed the Appellants claim and declared the Respondent as the lawful owner of the suit premise after finding that the late Mwajuma Mussa had a good title to pass to the respondent. In discontent, the appellant appealed to this court vide Land Appeal No. 262 of 2020, armed with twelve grounds of appeal. This Court, on 12 October 2021, delivered its judgment. 2 In the Judgment, this Court held that; At page 6 " ...for the first ground, I agree with Mr. Masawe that as per section 24 of the Land Dispute Act Cap 2016, Hon. Chairman is not bound to follow assessors opinions while giving his decision while giving his decision. However, the law requires him to reflect the reasons for differing with the same in the instant matter the Hon. Chairman has given the reasons for differing with opinion of assessors I find this ground to have no merit. (Emphasis provided) At pages 7 and 8 Y would like to note that the remaining grounds will be determined generally, this is not a new phenomenon... I have noted that the remaining grounds ofappeal challenges evaluation of evidence by the trial Tribunal." At pages 8 and 9 "...the strength of this dispute is centered on the two 3 Documents namely EXHIBIT P3 which is the purported Written Will of the late Hadija Kondo title "Wosia"dated 06/06/1994 bequeathed her children and grandchildren House No 25/15 Mchikichini and EXHIBIT DI which is the purported affidavit of the late Mwajuma Mussa Msemba titled "Hat! ya Kiapo" dated 12/11/1997 evidencing one Mwajuma Musa Msemba, out of natural love and Affection gave the respondent House No. 265 located at Mchikichini" At pages 11 "...in such circumstances, I have no option but to invoke my inherent powers under section 43 of Land Disputes CourtAct, Cap 216 and remit the file on this matter to the District Land and Housing Tribunal before the same Chairman who presided on the matter with an order that the trial Tribunal should take additional evidence on confirmation of the proper location and description of the disputed property and write the newjudgment basing on that evidence together with pleadings on record. The appeal is partly allowed." The Tribunal complied with that Court order and, on 29 October 2022, delivered the new judgment maintaining its former position that 4 the respondent is the lawful owner of the suit premise and cleared the issue of the description of the house in dispute. Aggrieved again, the appellant then filed this appeal which was confronted by the preliminary objection raised by the respondent. At the hearing of the preliminary objection, the appellant appeared in person while the respondent was represented by Mr. Sisty Massawe, learned counsel. In support of the preliminary objection, Mr. Massawe briefly submitted that the appeal is res judicata; therefore, it is barred by section 9 of the CPC. He further submitted that the appeal was already decided by Hon. 'I Msafiri. J, in Land Appeal No. 262 of 2020. In that decision, this court ordered the Tribunal to take additional evidence on the description of the property; therefore, this appeal was supposed to be on that issue only, which the court ordered. In a brief response, the appellant submitted that this court ordered a re-trial and ordered the Tribunal to take additional evidence 5 based on the description of the suit property. Therefore, the appeal was not determined to its finality. Further, he submitted that he appealed against the decision of the Tribunal after it recorded the additional evidence and composed the judgment. In a brief rejoinder, Mr. Massawe, apart from reiterating his submission in chief, insisted that the matter was determined to its finality on merits. Having considered the oral submission made by the learned counsel for the parties, I find that the gist of the objection is the Land Appeal No 262 of 2020 and this appeal between the same parties over the same subject matter. The question then is whether this appeal is res-judicata In deliberation and determination of the matter, the entry point is section 9 of the CPC, which is relevant in analyzing the principle of Res- judicata. For convenience, it is necessary to reproduce the said section. It reads; 6 "No Court shall try any suit for an issue which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they are or them claim litigating under the same tide in a Court competent to try such subsequent suit in which such issue has been subsequently raised and has been heard and finally decided by such court. '(Emphasis provided) By looking at the cited provision of law, it is quite clear that the objective of the principle of res-judicata is to bar multiplicity of suits and makes conclusive final judgment between the same parties on the same issue by the court of competent jurisdiction in the subject matter of the suit. The Court of Appeal of Tanzania in Peniel Lotta Vs. Gabriel Tanali and others [2003] TLR explained the applicability of Section 9 of the CPC; it pointed five conditions, which, when co-exist, will bar a subsequent suit. The conditions are: - (i) The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit. 7 (ii) The former suit must have been between the same parties or privies damming under them. (Hi) The parties must have litigated under the same title in the former suit. (iv) The court which decided the former suit must have been competent to try the subsequent suit and (v) The matter in issues must have been heard and finally decided in the former suit In the present appeal, the subject matter in dispute is house No 23/15, located at Ilala Mchikichini, which according to the Tribunal judgment after taking additional evidence, formerly was known as both No 265 and No 25/15. In Land Appeal No. 262 of 2020, this Court never decided on the ownership of that suit premise. Further, in Land Appeal No. 262 of 2020, this Court generally deliberated grounds 2 to 12 of the appeal because both centered on challenging the evaluation of evidence by the trial Tribunal. The grounds were determined on merits because this court found that there was no description of the suit premises, which was why it ordered the taking of additional evidence and fresh judgment to be composed. 8 The only ground determined in Land Appeal No. 262 of 2020 was ground 1, in which the Court dismissed that ground for lack of merits. That ground was on assessors. Therefore, going by the imports of section 9 of the CPC and the principles established in Peniel Lotta (Supra) on the applicability of section 9 of the CPC, this appeal is not res-judicata. This is because; One, in Land Appeal No. 262 of 2020, the matter in issues was not heard and finally decided. Two, grounds 2-12 of appeal were not determined because, according to that judgment, there were all based on the evaluation of evidence and depended on the description of the suit premise. That was why the matter was reverted to the Tribunal to take additional evidence. Therefore, there was no finality in Land Appeal No. 262 of 2020. In the final analysis, I find no merits in the preliminary objection raised; therefore, I overrule the same. 9 Consequently, I dismiss the preliminary objection with costs and 10