Land Appeal No 4691 of 2024 ocr

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL MV NO.4691 OF 2024 (Arising from Land Application No. 150 of 2022 in the District Land and Housing Tribunal of Ilala whose decision was delivered on 8th February 2024) MARIAM OMARY TUFI (a legal representative of the late Juma Athumani Tufi)........................... .......................... APPELLANT VERSUS FATUMA MKUMBA.................................................................. 1st RESPONDENT ESTER GERVAS NANDI @ MRS GEORGE MWANAMBIKI....2ND RESPONDENT JUDGMENT 18/06/2024 & 29/07/2024 GWAE, J. Before District Land and Housing Tribunal of Ilala (hereinafter DLHT), the appellant herein unsuccessfully instituted a land dispute against the respondents named herein above. Her Application before the Tribunal faced legal challenge raised by the respondent in terms of section 9 of the Civil Procedure Code, Cap 33, R. E, 2019 (CPC). Through a notice of preliminary objection (PO), the 1st respondent raised the PO that, the appellant's suit was a res-judicata. i The trial tribunal chairperson sustained the 1st respondent's PO by holding that, the appellant was a privy to the former case that is Application No. 277 of 2021 before Buyuni Ward Tribunal where the 1st respondent emerged a victor. The learned chairperson was then satisfied that the PO is sustainable against the 1st respondent's claims and went on advising the appellant that, to file an amended application within thirty (30) days, if at all, the land dispute between the 2nd respondent centers over a different piece of land. Dissatisfied with the ruling of the DLHT delivered on 8th February 2024, the appellant has knocked the doors of the Court challenging it with the following grounds of appeal. 1. That, the DLHT erred in law and fact for its failure to understand the legal meaning of the term of an administrator of estate 2. That, the DLHT erred in law and fact for its failure by holding that the appellant was party to the former case before Buyuni Ward Tribunal 3. That, the DLHT erred in law and fact for its failure by holding that, the appellant would amend his application and proceed with the case with the 2nd respondent if the dispute is over a different piece of land. On 27th May 2024 when this appeal was called on for hearing before 2 me as an first appellate judge, the appellant appeared in person whilst the respondents enjoyed legal services of advocate Omega Emmanuel Juael from Countrywide Attorney. The parties sought and obtained to dispose of the appeal by way of written submission. Arguing the 2nd ground of appeal, it was the appellant's submission that, in the former case she was sued in her personal capacity and that an administrator of estate of the deceased person is quite different from an individual. It was also the submission by the appellant pertaining the 2nd ground that, since she was sued in her personal capacity in the former case, thus the present dispute that, she instituted could not be barred by the doctrine of res-judicata. The appellant also submitted on the 3rd ground of appeal by stating that the dispute on a survey piece of land would have been heard on merit together with the 2nd respondent instead of with 2nd respondent. It is her submission that it was wrong for the tribunal to order an amendment of the application by suing the 2nd respondent, if the disputed land, is different. Opposing the appellant's submission on the 1st ground of appeal, the respondents through their counsel, submitted that, it was the duty of the 3 appellant to cause to be sued or joined as an administratix of the estate of the late Juma Athumani but she did not seek to be joined in that capacity. In the second ground of appeal and the remaining grounds of appeal, it was the submission of the respondents' counsel that, the tribunal rightly invoked the doctrine of res-judicata since the appellant was a privy or one who had an interest to serve to the former case (Application No. 277 of 2021). He invited the court to refer to Witness Phobi vs. Khamis Abdallah Mduma and two others, (Land Case 300 of 2022) [2023] TZHC LandD 96 (28 February 2023), where this Court (Mgeyekwa, J as she then was now JA) held; "The Plaintiff was not a party to the previous case and in the case at hand, the Plaintiff has included two other Defendants, however, reading the records it is revealed that all Defendants are involved in the claims related to the same subject matter a piece of land measuring 90 meters x 180 meters located at Kivu/e A ’ Kitundu. And the previous case was determined by the DLHT to its finality. Therefore, it is my considered view that the instant suit is a subset of the Doctrine of Res Judicata. In other words, the suit is constructive res judicata, a suit that sets to bar any claims being raised in a later proceeding if the claim on the same subject matter ought to have been raised and decided earlier. With respect to the fourth principle, the Court, which 4 decided the previous suit must have been competent to try the subsequent suit; the DLHT High Court, Land Division in Application No, 34 of 2018 was a competent tribunal." The learned counsel for the respondents also urged this court to mae reference to the judicial decisions in Peniel Lotaa vs. Gabriel Tanakii and others (2003) TLR 312 and Badugu Ginnng Co. Ltd vs. CRDB Bank and two others, Civil Appeal No. 265 of 2019. In her brief rejoinder, the appellant stated that, the matter would be heard on merit in order that, the tribunal would be in a better position to know whether the 1st respondent was the one who sold a piece of land to the 2nd respondent or vice versa. She further reiterated her submissions in chief by stating that, her case (Application No. 150 of 2022) was not res- judicata between the 1st respondent and her. Having briefly outlined the genesis of this appeal and parties' rival submissions, I am now duty bound determine on whether the appellant's appeal has merit or otherwise. Regarding the 1st ground ofappeal above, I am aware of the fact that, if one who sues or being sued as an administrator or an adminitratix is quite different and distinct person in other words he or she is not the same person 5 as the one who sues or is sued in his or her personal capacity. In our instant dispute the appellant has instituted the dispute before ward tribunal as a legal representative of the estate of her late father whereas in the former dispute before Buyuni Ward Tribunal, she was sued by the 1st respondent, Fatuma Musa Mkumba in her personal Capacity by the name of Mariam Omari Tufi. According to the decision of Buyuni Ward Tribunal, the appellant introduced herself as the daughter of the late Juma Tufi who, according to the letters of administrate of his estate issued on 23rd March 2011, he passed away in 2001. Therefore, the finding of the DLHT that the appellant instituted the suit after lapse of twenty (20) years from the date of her appointment is misconception of the letters itself. Hence, at material time that is to say at the institution of the former dispute (Application No. 277 of 2022), the appellant was an administratix as revealed in the letters of administration and even the proceedings before the ward tribunal. However, as I am not siting as the appellate court in respect of the decision of Makuyuni Ward Tribunal delivered on 1st June 2021 through Application No. 277 of 2021, I cannot therefore comment anything about that decision. It follows therefore, even the learned chairperson could not do anything pertaining the former 6 suit since he was not sitting as an appellate tribunal in Application No. 150 of 2022 instituted by the appellant. Now to the 2nd ground of appeal, the doctrine of res-judicata as envisaged under section 9 of the CPC is meant not to indefinitely litigate on the same matter or subject between the same parties. Hence, persons or privies or interested persons in subject matter cannot be allowed to subsequently file the same matter against the same parties if the former case was conclusively determined by a competent court or tribunal. Section of CPC provides and I quote it in extensor; "9. 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. That, the statutory provision has been consistently interpreted by our courts including the case of Witness Phobi vs. Khamis Abdallah Mduma and two others, (supra). I also like to subscribe to the decision in Peniel 7 Lotta vs. Gabriel Tanaki and Others (supra), where the rationale of section 9 of CPC was stated and I quote; "The object of the doctrine of res-judcata is to bar the multiplicity if suit and guarantee finality to litigation. It makes a conclusive, a final judgment between the same parties or their privies on the same issue by a court of the competentjurisdiction in the subject matter of the suit." While endorsing to the above positon of the law, my question that follows is whether there was enough factors that justified the DLHT's Chairperson to hold that the appellant's suit was barred by the doctrine of res-judicata. Going through the impugned ruling, it is plainly clear that, the learned chairperson held that the appellant was privy and that she did not appeal against the decision of the ward tribunal. I find the facts justifying applicability of the principle of res-judicata as they were sufficient since there is a decision of Buyuni Ward Tribunal pronounced on 1st June 2021 followed by an application for execution No. 616 of 2021 between the 1st respondent and appellant as a privy. More so, the appellant was the one who was sued in her personal capacity had she have any objection that ought to have been raised before the ward tribunal or on appeal before DLHT. The appellant now appearing 8 and suing as an administrator of the estate of the late Juma Omari, he late father while before the ward tribunal she was aware in fact she was the holders of the letters of administration of the deceased's estate. She is therefore deemed to have been litigating under same subject matter for having an interest as wife of the late Juma Omari and the one who could have raised such ground as a defence as required under explanation iv section 9 of CPC. Since, there is no contention from the appellant that, the suit land was a different piece of land from the former dispute finally determined by the Competent Ward Tribunal prior to the amendment of 2021 through section 13 of the LDCA through Act No. 3 of 2021, which came into operations on 11th October 2021, this ground lacks merit. I am holding that view, simply because in the present dispute the principle of res-judicata is constructively applicable. The appellant, in my view, would and still pursue her remedy available against the decision delivered by the ward tribunal in favour of the 1st respondent, instead of using a canopy of letters of administration. On the 3rd grounds whether the DLHT's chairperson was justified to order an amendment of application. I am of the view that the DLHT was 9 justified since the appellant's case against the 1st respondent was barred by the so called res-judicata. Thus, she might have a claim against the 2nd respondent notwithstanding the exclusion of the 1st respondent in the case or alternatively if as stated by the appellant that, there was sale agreement pertaining part different land not part to the former suit, the 1st respondent might be joined by the 2nd respondent but as a third party. That said and done, the appellants' appeal is devoid of merit, it is dismissed in its entirety. The appellant shall bear the costs of the appeal It is so ordered. DATED at DAR ES SALAAM this 29th day of July 2024. io