martha boniface bwana administratrix of the estates of the late boniface machela bwana vs joseph swila 2021 tzhclandd 661 27 september 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPEAL No. 232 OF 2020 (Originating from the decision of Kinondoni District Land and Housing Tribunal for Kinondoni in Land Application No. 88 of 2019) MARTHA BONIFACE BWANA (Admininstratrix of the Late Estates of Boniface Machela Bwana)................... ............. APPELLANT VERSUS JOSEPH SWIL A........................... RESPONDENT JUDGMENT ON APPEAL Date of last order: 23.8.2021 Date of Judgment: 27/9/2021 T. N. MWENEGOHA, J. The appellant being aggrieved by the decis'on of the Kinondoni District Land and Housing Tribunal (Herein after "the Tribunal") in land Application No. 88 of 2019 apoeals to this Court on the following grounds: - 1. That, trial Chairoerson erred ,n law and fact in deciding that the matter is res sub judice to land application No. 155 of 2011, which is subject to the pending appeal in the Court Appeal of Tanzania while these are two different disputes basing on different titles of Land. 2. That, the trial Chairperson erred in law and fact in striking out the application without considering that the dispute in land aoplication No. 155 of 2011, which is subject of the Appeal to the Court Appeal, it was the aopellant who trespassed into tne i respondent's land to the extent of 2 meters while in Land Application No 88 of 2019, it was the respondent who trespassed mto the appellant's land to the extent of 4 meters. 3. That, the trial Chairperson erred in law and in fact and grossly misdirected nimself by relating the matters to land application No, 155 of 2011, which is now pending to the Court of Appeal, while the cause of actions are the trespass of the respondent and appellant in two different titles ot land and or parties are claiming under different titles. 4. That, the Trial Chairperson erred in law and in fact in striking cut tne matter on the reasons that, there are no serious and strong differences earmarked and identified by the applicant, while the appellant had already addressed in his submission the two disputes, in land application 155/2011 which is now pending to the Court of Appeal and 88/2019 are based on two different titles of land. 5. Tnat, the trial Chairperson erred in law and in fact in striking the matter out on the reason that the trial Tribunal cannot investigate the difference as alleged by the applicant without the case file of land application No. 155 of 2011 cf which is at the Court of Appeal instead of ordering stay and or the same coming for mention pending determination cf the Appeal. Wherefore, it is the appellant prayers that the appeal be allowed, the order of the Tribunal to be quashed and set aside, the matter be remitted to the trial Tribunal for the trial to proceed, costs of the appeal to be borne by the respondent and any other reliefs this Court may deem fit to order. 2 This appeal proceeded Dy way of written submission, both parties were represented. While the appellant was represented by Mr. Eliezer Kileo Advocate, the respondent was represented by Mrindoko Rajab, Advocate. In his submission Mr. Eliezer Kileo decided to consolidate the 1st,2nd and 3rd grounds and formed one ground that the trial Chairperson erred hi law and fact in deciding that, the matter is res-subjudice to land application No. 155 of 2011 whicn is subject of the appeal in the Court of Appeal of Tanzania while these are two different disputes basing on different titles of land. He submitted that, tne principle of res-subjudice is found under the provision of Section 8 of the Civil Procedure Code (herein after the C.P.C) Tnat, the Chairperson at the trial Triounal erred in law and in fact in deciding tnat, the land application No. 155 of 2011 is pending at the Court of Appeal. That the land application number No. 155 of 2011, was since 19th October, 2015 determined by tne Tribunal and what is pending at the Court of Appeal between parties is a Civil Appeal No 317 of 2020 He continued to suomit that, the trial Chairperson erred in law to rule out that, land application No. 155 of 2011 is res-subjudice with the land application number 88 of 2019. That, even if it is argued that, the land application No. 155 of 2011 is pending at the Court of Appeal, it cannot suffice to be treated as a res- subjudice with the land application No. 88 of 2019, because of the following reasons; One, that the causes of action are different between the two applications; that in the land application No. 155 of 2011, the cause of action was that the appellant trespassed into the respondent's land unlike in the application No. 88 of 2019, whereby it was the 3 respondent who trespassed into the appellant's land to the extent of four meters. Also, that parties in these two land apolications owned two different titles of land. The issue for determination on the land application No. 155 of 2011, was on the boundary only, in the extent of only 2 Meiers, but the issue on the land application No. 88 of 2019, was that the respondent trespassed into tne appellant's is land to tne extent of 4 meters. Two, tnat the appellant cannot get a relief she is seeking under tne appeal at the Court of Appeal. That tne appellant is seeking a relief to recover nis portion of land of 4 meters from the respondent. That the appeal which is at the Court of Appeal is only challenging the trespass of land of about 2 meters. That one of the conditions under Section 8 of the C.P C court where the case is pending must have the power to grant tne reliefs sought. On the 4-h and 5th ground, Mr. Kileo submitted that the trial Chairperson, erred in law and in facts stating that, the District Lana and Housing Tribunal, has no jurisdict:on to entertain the suit as it contravenes section 38 (1) of the C.P C He quoted part of the judgment from page 5 paragraph 2 where the Tribunal decided that; "again, just as contended by the respondent, that is the respondent has exceeded 2 meters in the due course of executing decree, I don 't think if that can lead to the applicant to institute fresh suit..." Mr. Kileo submitted that the findings of the trial Chairperson as to the quotation above was not proper, as there is nowhere in the proceedings of the trial Tribunal where the appellant pleaded that, the trespassing of 4 Meters was the due cause of execution. The appellant 4 pleaded that trespass of the 4 meters was a new cause of action done by the respondent to the appellant. That the appellant could have challenged the same by way of objection proceeding but there were neither execution proceeding nor execution order which the appellant could have challenged. Therefore, that the land application of the appellant, in the Land Application No. 88 of 2019, was very clear because the cause of action is new, it cannot be challenged by way of objecting execution, rather than file a fresn suit as the appellant did. Mr Kileo finalized his submission by praying this court to grant the prayers contained in the memorandum of appeal. In his reply, Mr. Mrindoko submitted that, tne trial Chairman properly applied the conditions under the principle of res-subjudice as provided under section 8 of the C.P.C in reaching his decision that the appellant's suit was re-subjudice. From the provision there are conditions which must be met for the matter to be considered to oe res-subjudice. That the issue for determination in land application No. 155 of 2014 was ownership of the disputed land measure 2x48 meter and it was determined in favor of the respondent. The applicant in the subsequent suit subject of this appeal is challenging the previous decision that it was obtained by fraud which is still pending in the Court of Appeal- The appellant who is Judgment Debtor in land application No 155 of 2011 is challenging execution by way of subsequent suit. That it is the respondent submission that the issue for determination in the instant case is ownership of the disputed land which was finally and conclusively determined in the earlier case which is pending in the Court of Appeal. 5 Mr. Mrindoko further submitted that, the prevision of Section 8 of the C.F’.C provides for various conditions necessary for the case co be res- subjudice. Tne first condition, it is clear from the record from the trial tribunal that, the issue for determination in the sunsequent suit is ownership of the disputed land which was finally and conclusively determined in the earlier case which is pending in the Court of Appeal. That, the disputed property which she claimed that it was unlawful taken in execution is tne same disputed property in tne former suit, and chat the question as to whether or not the respondent has wrongly taken 4x48 mete*" in execution could not be answered through a subsequent suT because the land taken was in execution of the decree. If the appellant nad the views that the execution was improperly conducted, she had tne remedy under section 38 of tne Civil Procedure code to apply to tribunal as all question relating to execution are supposed to be determined by the Tribunal which issued the decree or to apply for stay to tne Court of Appeal where the proceedings are pending. Regarding the second condition, that in the former and subsequent suit parties litigating must have been the same or privies claiming under them. As regard to tnis matter in the former suit parties were respondent who was tne Applicant and the appellant was the respondent. Therefore, parties in the former suit are the same parties in the subsequent suit subject of this appeal. As regard to the third condition the parties must nave litigated under the same title. This entails that persons whose names a-e on record at tne time of the decision or a party who intervened in the suit as co­ defendant. It is apparent from the record that the Appellant and the respondent were litigating under the same title in the former suit. 6 On the fourth condition regarding the competency of the court, Mr. Mrindoko submitted that the tribunal which had decided the former suit was competent to try the subsequent suit subject of this appear In the last condition that the previous suit must be pending, Mr. Mrindoko submitted that, the matter in controversy between the Respondent and Appellant in the former suit regarding recovery of the iand trespassed by tne Appellant, is pending in the Court of Appeal. Therefore, the subsequent suit subject of this appeal before this court was re-subjudice and the trial tribunal was justified to hold so. On the 4th and 5th grounds Mr Mrindoko submitted that, the trial Tribunal was correct in law to hold that it had no jurisdiction to entertain subsequent suit subject of this appeal. That it is clear from the record of the Tribunal that, the appellant wno is the Judgment Debtor in Land Application No. 155 of 2011 has instituted the present suit complaining that the Resoondent (the decree holder) being aware of the existence of the pending proceedings -n the Court of Appeal and application for leave in the High Court on 16/12/2018, has unlawful executed by himself the decree of the High Court dated 30/11/2018 by acquiring the land in dispute measure 4x33 meters via illegal execution and therefore the appellant prayed to be declared by the Tribunal as lawful owner of 4x33 meter of land acquired during illegal execution Mr Mrindoko further submitted that, the question as to whether or not the Respondent has wrongly taken 4x48 meter in execution could not be answered through a subsequent suit, because the land taken was in execution of the decree. That, if the Appellant had the views that the execution was improperly conducted, she had the remedy under section 38 of the C P.C. However, that as long as there is pending proceedings 7 in the Court of Appeal this Triounal lacks jurisdiction to entertain this matter as the proceedings subject of execution are no longer in this Tribunal. Mr. Mrindoko finalized his submission by praying this court that this appeal be dismissed with costs and the decision of the trial tribunal be confirmed. Having gone through the parties submissions the mam issue for determination is whether this appeal has merit Upon tnorough perusal to the records of the Tribunal I have found out that the parties in the present appeal were also paities in the Land Application No. 155 of 2011, which was before the Tribunal and now is pending before the Court of Appeal, under the Civil Appeal No.327 of 2020. In Land Appiication No. 155 of 2011 the appellant herein was tne respondent and the respondent herein was the applicant. The applicant was claiming that the respondent trespassed into his land for about 2 X 48 M. The Tribunal granted the application. Aggrieved by that decision, the respondent who is the appellant herein unsuccessful appealed to this Court and then decided to appeal to the Court of Appeal under Civil Appeal No 327 of 2020, tne matter is still pending. I have also found out that, the present appeal is the result of the Land Application No 88 of 2019, whereby the appellant herein instituted a suit against the respondent herein cla.mmg that the respondent in his unlawful execution has trespassed into his land for about 4 X33M. One of the appellant's prayers before the tr ibunal was for her to be declared as the rigntful owner of the disputed piece of land. But on the course of nearing, the respondent raised the preliminary objections on the point of 8 law that, the suit is res sub-judice and that under the provision of Section 38(1) of the C.P.C the tribunal lacked jurisdiction to entertain the matter. The tribunal went on to determine the preliminary objections and decided that the application was res sub-judice with the pending case before the Court of Appeal (Civil Application No.327 of 2020) and that by virtue of Section 38 of the C.P C, the tribunal lacked jurisdiction to entertain the matter. The Tribunal held that instead of the appellant instituting a fresh suit, she was supposed to file the application before the executing court. Being dissatisfied by that decision the appellant decided to file this appeal. It is not disputed that no application for execution in relation to the Land Application No. 155 of 2011 has been filed because the matter is still pending to tne Court of Appeal. Therefore, it was not proper for the trial Tribunal to reach its decision relying on the provision of Section 38(1) of the C.P.C. The provision under Section 38 (1) of the C.P.C provides as fol low:- 'M// questions arising between the parties to the suit in which the decree was passed, or their representative, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit." The fact that there is no any application for execution, the preliminary objection raised on this point was bound to be overruled. Concerning the preliminary objection that the aopi'cation was res sub judice, this is provided for under Section 8 of the C.P C, the Section provides as fol lows-- 9 "No court shall proceed with the trial of any suit m which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or petween parties under whom tney or any of them claim litigating under the same title where such suit is pending in the same or any other court in Tanzania having jurisdiction to grant the relief claimed." This provision means that, if a suit is filed in court while there is a pending suit between the same parties on the same subject matter then the court cannot proceed to hear the matter if the previous suit is yet to be determined. Before the tribunal the appellant sued the respondent for trespassing into his land for about 4 X 33M, while there is a matter between the same parties on similar subject matter pending before the Court of Appeal under Civil Appeal No 327 of 2020. Thus, tne trial Tribunal was right to sustain the 2nd preliminary objection and decide that Land Application No. 88 of 2019 is res sub judice to the Civil Appeal No 327 of 2020. However, upon observing that the matter was res sub judice, the Tribunal was required to order maintenance of the status quo by the parties until the determination of Civil Appeal No.327 of 2020 io Owing to the above observation, I find no reason to fault the decison of the trial Tribunal to tne extent explained above. Consequently, this appeal lacks merit and it is hereby dismissed with costs. It is so ordered. Dated at Dar es salaam this 27th day of September, 2021. .1