REHEMA MASSAWA

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA LAND APPEAL NO. 18566 OF 2024 CASE REFERENCE NO. 202408011000018566 (Originating from the District Land and Housing Tribunal for Mbeya at Mbeya Land Application No. 62 of 2023) REHEMA JOHN MASSAWA …………………………………………….. 1ST APPELLANT KIKUNDI CHA AMANI NA UPENDO ………………………………… 2ND APPELLANT

VERSUS MATHIAS SOLONGO …………………………..………………………… RESPONDENT

JUDGMENT Date of hearing: 10th October 2024 Date of judgment: 8th January 2025 NONGWA, J. This appeal originates in Application No. 62 of 2023 in the District Land and Housing Tribunal for Mbeya at Mbeya (the DLHT) in which the respondent was victorious in a suit for claim of ownership over plot No. 152 Plot 47, Ghana area within the City and region of Mbeya herein (the disputed premise). 1 Briefly, the disputed premise initially belonged to John Masawa who passed away in 2012 and his wife Marina Masawa passed away in 2018. The 1st appellant is a daughter of late John Masawa whereas the respondent is the in - law to the later John Masawa. In 2019 the 1st appellant was appointed by the Primary court of Mbeya district at Mbeya urban to be the administratrix of the late John Masawa. In her capacity as administrator, in 2019 sold the disputed premise to the 2nd appellant. Learning of the sale, the respondent vides Application No. 249 of 2019 sued Ipyana Mwambona and Kikundi cha Upendo na Amani over the disputed premise. The respondent alleged that he bought the disputed premise from his in - laws in 2009. In that application, the DLHT held in favour of the 2nd appellant. The respondent through Land Appeal No. 66 of 2021 (the former appeal) unsuccessfully challenged the DLHT’s judgment. Some of the issue which cropped in that appeal was lawfulness of the 1st appellant as

the administratrix, the court stated that the validity of the letters of administration and/or the dealings of the administrator/administratrix can be challenged through probate forum. The court further stated any grievance against the administratrix on the sale of the suit land or claim that the disputed premise did not form part of the deceased estates, the appellant 2 could have followed the law to challenge the same in the same probate forum. On who was the owner, the court stated the 2nd appellant was the owner. Overall ownership of the 2nd appellant was confirmed and the appeal dismissed. Following the judgment in the former appeal, the respondent went back to the primary court and successfully obtained an order for declaration that the disputed premise did not form part of estates of the late John Masawa as evidenced by the ruling which was admitted as exhibit P4. Armed with exhibit P4, the respondent instituted Application No. 62 of 2023 against the appellants. Main issue as appearing at page 3 of the judgment was whether the matter was res judicata. In its judgment the DLHT held that the matter was not res judicata and the chairman went ahead to hold that the disputed premise was sold to the respondent by the late John Masawa. Thus, the respondent was declared the owner of the disputed premise. The above-named appellants being aggrieved by the decision of the DLHT

appeals to this court on the following grounds; one, that the trial tribunal erred both in law and fact for entertaining the matter while it had no Jurisdiction to entertain the same since the matter was res judicata; two, 3 that the trial tribunal grossly erred both in law and facts for failure to analyze, evaluate and consider the evidence adduced by the appellants’ herein during the trial; three, that the trial tribunal gave judgment in favour of the respondent while there was no sale agreement nor spouse consent of the wife of the late John Massawa; and four, that the trial tribunal erred both in points of law and facts by imposing new facts in the case which was never adduced or attested by the parties herein to this appeal concerning parties to revert to file the case at Primary Court and that the issue of ownership was not determined on merits. From the above grounds of appeal, the appellants pray the appeal be allowed with costs. When the appeal came on for hearing the appellants were represented by Mrs. Joyce Kasebwa, learned advocate, whereas the respondent enjoyed the service of Mr. Gerald Msegeya, also learned advocate. It was agreed that the appeal be disposed by filing written submission. Parties complied with the scheduling order. In the first ground that the matter before the tribunal was res judicata, Mrs. Kasebwa referred to Black’s Law Dictionary in which the

doctrine is explained as an affirmative defense barring the same parties from litigating 4 a second law suit in the same claim, or any other claim from the same transaction or series of transactions and that could have been raised but was not raised in the first suit. Counsel stated in this jurisdiction the doctrine is codified under section 9 of the Civil Procedure Code [ Cap 33 R: E 2019] (the CPC) and five conditions must be satisfied for it to apply. Elaborating, it was submitted that the matter has been in court two times through Application No. 249 of 2019 which went up to the high court in the former appeal in which the 2nd appellant was declared the lawful owner. She contended that the respondent filed another case in the tribunal on the same cause of action and parties in disregard of the high court judgment. She fortified the argument with the case of Kamunye & Others vs The Pioneer General Assurance Society Limited [1971] EA 263 on applicability of doctrine of res judicata. Counsel added that the respondent initially filed Notice of appeal and leave to appeal as an attempt to challenge the decision of the high court in former appeal which was later withdrawn. In the second ground on evaluation and analysis of evidence, it was submitted that the respondent did not have any documents signifying that he purchased the disputed premises but a handover documents which

was 5 not signed by the deceased. Counsel wondered why the respondent kept silent since 2009 when he purchased up to the time he filed the case. He contended that the 1st appellant had all documents of ownership which is conclusive evidence of her title. Counsel supported the stance with the case of Livingstone Michael Mushi vs Asha Magoti Magere& Others, Civil Application No. 247/08 of 2022 [2023] TZCA 17809 (9 November 2023; TanzLII). Further argument was that section 64(1) read together with section 61(1) both of the Land Act and 41 of the Land Registration Act requires all contract of disposition of land to be in writings. Mrs. Kasebwa went on to argue that 1st appellant gave a narration of ownership of the disputed premise up to the time it was sold to 2nd appellant. She added that the fact that some money was being deposited in late John Masawa’s bank account did not mean was for purchase of the disputed premise. Counsel was of the view that the respondent had weak evidence compared to the appellants. She substantiated the stance with the case of Paulina Samson Ndawanya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 [2018] TZCA 218 (12 October 2018; TanzLII). 6 Submitting in ground three, Mrs. Kasebwa strongly argued that the disputed premise was acquired during marriage of John Masawa and Merina Masawa making it a matrimonial property but consent of wife as

required by section 59 of the Law of Marriage Act was not sought and obtained. The court was also referred to section 161(3)(b) of the Land Act and the case of Asile Ally Said vs Irene Redentha Emmanuel Soka @ Another, Civil Appeal No. 80 of 2020 [2024] TZCA 33 (8 February 2024; TanzLII) on the requirement. In ground four, it was submitted that the high court did not direct parties to go back to the primary court the reason it declared the 2nd appellant as the lawful owner. She argued the high court conclusively determined ownership of the disputed premise and it was wrong interpretation to say it directed parties to go to primary court for the same to be dealt in accordance with probate laws. From the above submission, Mrs. Kasebwa prays the appeal be allowed with costs. In rebuttal, Mr. Msegeya admitted that there was Application No. 249 of 2019 filed by the respondent against the 2nd appellant and one Ipyana 7 Kambona in the DLHT. Further that the decision was challenged in the former appeal in which the court found the dispute was of probate nature which necessitated the respondent to go back to probate court. That upon hearing parties the primary court ruled that the disputed premise was not part of the late John Masawa estates as exhibited in the ruling of the primary court which was tendered and admitted as exhibit P4. Reply on argument that the matter was res judicata,

Mr. Msegeya underscored the condition under section 9 of the CPC which was restated in the case of Michael Obiero (Administrator of the estate of the Late OBIERO OKINYI) vs Ager Ondiek & Another, Civil Appeal No. 422 of 2022 [2024] TZCA 584 (17 July 2024; TanzLII), however was firm that conditions did not cumulatively apply to the case at hand. Amplifying, counsel argued that parties were not the same, particularly, the 1st appellant was not party to Application No. 249 of 2019 nor any person litigated under her title. Further that reliance by the appellant’s counsel on the former appeal was erroneous as it was not produced before the DLHT. Replying to ground two on evaluation and analysis of evidence, Mr. Msegeya submitted that evidence adduced in the DLHT tilted in favour of the 8 respondent to the effect that he bought the disputed premise from his -in- laws as evidence by acknowledgment letter from the 1st appellant’s parent. He added that the 1st appellant was aware of the sale of the disputed premise the reason did not include in list of properties of the deceased. He conceded that transfer of title in land must be in writing but pointed that his father - in - law died before formalization of the transfer process. Counsel argued, that, did not affect the respondent’s title over the disputed premise and placed reliance on exhibit P4. He concluded on this ground that the

1st appellant had no good title to pass to the 2nd appellant as it did not fall under her administration. Counsel bolstered the argument with the case of Halima Wakara & Others vs Jeremiah M. Mkama, Civil Appeal No. 493 of 2020 [2024] TZCA 331 (8 May 2024; TanzLII) In ground three that there was no spouse consent, Mr. Msegeya argued that the disputed premise was properly procured in favour of the respondent as acknowledged by the previous owner. On extraneous matter in ground four, Mr. Msegeya argued that all what the chairman deliberated came from party’s evidence and Land Appeal No. 66 of 2021 did not decide whether the disputed premise formed part of 9 the estates of the late Masawa or not. Thus, the primary court through exhibit P4 properly dealt with the matter. He finalized by praying the appeal to be dismissed with costs. During rejoinder, Mrs. kasebwa restated her earlier submission that the matter in the tribunal was res judicata and all conditions were met. In the second ground he submitted the sale agreement was not signed by the seller. In ground three and four maintained his submission in chief. Having considered the rival submissions, they all boils on one issue whether the suit in the DLHT was res judicata. The doctrine is found under section 9 of the CPC, it provides; ‘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.’ It is generally understood that the doctrine of res judicata is based upon two other maxims of Roman law. One, that, interest reipublicae ut sit finis 10 litum, that is, it concerns the state that there should be an end to law suits, and two, that, nemo debet bis vexari pro una et aedem causa, that is, no man should be vexed twice over for the same cause. In terms of section 9 of the CPC, to make the suit res judicata it must be established that; 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, he parties must have litigated under the same tittle in the former suit; four, the court which decided the former suit must have been competent to try the subsequent suit; and fifth, the matter in issue must have been heard and finally decided in the former suit. Reference is also made to the case of Peniel Lotta vs Gabriel Tanaki and Others [2003] TLR 312,

Pravin Girdhar Chavda vs Yasmin Nurdin Yusufali, Civil Appeal No. 165 of 2019 [2022] TZCA 185 (5 April 2022; TanzLII) and Badugu Ginning Co. Ltd vs CRDB Bank Plc & Others, Civil Appeal No. 65 of 2019 [2021] TZCA 158 (3 May 2021; TanzLII)]. In the current appeal, as rightly pointed by Mr. Msegeya, the appellant’s counsel did not discuss the above conditions. He too in his reply submission submitted on condition two only, that is, parties were not the 11 same. That however, is not bar to this court to make deliberation on all conditions and see if were established. Before resolving whether the subsequent suit was res judicata as claimed by the appellants, I have first to settle argument by Mr. Msegeya that judgment in the former appeal was not produced, the view it was also expressed by the chairman. I agree with the counsel on that aspect that judgment in the former appeal was not introduced in evidence, however, reliance on the case of Soitsambu Village Council vs Tanzania Breweries Limited & Another, Civil Appeal No. 105 of 2011 [2012] TZCA 255 (17 May 2012; TanzLII) by the chairman was premised on wrong interpretation because in that case the court was dealing with principle of res judicata as preliminary objection which was not the case here. Circumstances in the present case is different One, Application No. 249 of 2019 was pleaded under paragraph 7 of the Written Statement

of Defence and admitted as exhibit D4, there is no dispute that it went up to appeal stage through Land Appeal No. 66 of 2021 as acknowledged by the respondent and DW2. Two, it is a court document which under section 59(1) of the Evidence Act Cap 6 of the Laws of Tanzania, the court takes judicial notice of its existence without it being tendered and admitted. In Diocles 12 Kamuhabwa vs Theonest Kamuhabwa, Civil Appeal No. 436 of 2022 [2024] TZCA 221 (22 March 2024; TanzLII) the court stated; ‘… while in the case at hand, the High Court was entitled to take cognisance or judicial notice of the said decision without requiring the same to be tendered and admitted. After all, there was no dispute over the presence of the said decision to require proof, And three, Application No. 249 of 2019, that is exhibit D4, was never considered by the Chairman in resolving the issue of res judicata. Even if judgment of the high court in the former appeal was not tendered in evidence there was ample oral evidence from PW1 (the respondent) and DW2 (2nd respondent) on its existence. Further exhibit D4 was enough to get into the matter and see if the subsequent application was res judicata. I will thus get into exhibit D4 and Land Appel No. 66 of 2021 in the deliberation of this appeal. Having cleared doubts of Mr. Msegeya, I now move to discuss whether condition for res judicata were met.

Starting with the first condition that the matter must be directly and substantially in issue. In the book by Mulla 'Code of Civil Procedure, 18th Edition, Vol.1 the phrase 'matter directly 13 and substantially in issue' is expressed at pages 204-205 in the following words; ‘The law is accordingly well settled that to invoke the bar of res judicata, it is not necessary that the cause of action in the two suits should be identical. It is only required that the matters are directly and substantially in issue should be the same in both suits. If the cause of action is the same both, in the former act and subsequent proceedings, then the decision on an issue of law will be res judicata between the same parties…. A matter cannot be said to have been directly and substantially in issue in a suit unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other. It is not enough that the matter was alleged by one party. A matter in issue is the matter claimed by one and denied by the other. Claim of right in its very inception depends upon proved facts and application of the relevant law. Directly and substantially in issue could be constructively so. Matter in issue may be an issue of fact, an issue of law or one mixed of fact and law. An issue of fact or an issue of mixed fact and law decided by a competent court is finally decided

between the parties and cannot be reopened between them in another proceeding… Every matter in respect of which relief is claimed in a suit is necessarily a matter "directly and substantially" in issue.’ [Emphasis added.] 14 From oral evidence of PW1 and DW2 together with exhibit D4, the subject matter was Plot 152 block 47 Ghana area which is also the case in this appeal. That means the subject matter is the same in the former suit and subsequent suit. The second and third conditions is parties, Mr. Msegeya argues that parties were not the same whereas in the former suit parties were Mathias Solongo vs Ipyana Mwambona and Kikundi cha Amani na Upendo in the current suit parties are Mathias Solongo vs Rehema John Masawe as administratrix of John Masawe and Kikundi cha Amani na Upendo. That is to say in the current suit Ipyana Mwambona has been removed and Rehema John Masawe added. This will be dealt with later. The fourth issue is simple, the DLHT is vested with powers to try land disputes, thus when decided the former suit, Application No. 249 of 2019 was also competent to try the subsequent suit. Last is matter in issue must have been heard and finally decided in the former suit. Going through exhibit D4 as seen at page 2, the DLHT was called to determine who is the lawful owner of the disputed premise, the DLHT declared the 2nd appellant as the owner of the disputed premise. The 15 respondent appealed to the high court through the former appeal on the following grounds as reproduced at page 2 through 3 of the judgment; 1. That the whole of the decision of the trial Tribunal is bad in law and irregular, as the proceedings in record were badly recorded and reflected.

2. That the trial Tribunal grossly erred in law and facts by declaring that the second Respondent is the lawful owner of the suit house while the seller of the same was not the administratrix of the deceased’s estate.

3. That the trial Tribunal grossly erred in law and facts by granting the house to the Respondents on the ground that the Appellant refused to join one Rehema John Masawa as necessary party to the case among other grounds.

4. That the trial Tribunal grossly erred in law and facts by holding that the disputed house was lawfully sold to the second Respondent while the said house was not part of the deceased properties.

5. That the trial Tribunal grossly erred in law and facts for its failure to properly evaluate and analyse evidence on record that was adduced before it by the parties, results thereof making unjust decision.

6. That the trial Tribunal grossly erred in law and fact for entering judgment in favour of Respondents in disregard to the appellant’s evidence that was overwhelmingly in his favour and 16 in disregard to the fact that there were a lot of contradictions on the respondents' testimonies. All grounds were dismissed by the court for being unmeritorious. Particular on whether the respondent bought the disputed premise from John Masawa, the court observed and I quote; ‘Additionally, the evidence by the Appellant that he bought the disputed house in 2009 left a lot to be desired. This is because, it is undisputed fact and evidence that the suit land is registered However, the appellant bought the same without any document availed to him in signifying that the deceased sold it to him. Equally, the Appellant had never occupied it until 2019 when he instituted the suit. On part of the 2nd respondent, she tendered a sale agreement (i.e Exhibit DI) and certificate of Title. She also called the seller as a witness (DW3) who proved that she sold the suit land to the 2nd Respondent and handled her with the Certificate of Title. In that regard, I am constrained to agree with the trial Tribunal that the Appellant did not have cogent evidence compared to that of the Respondent. Moreover, the Appellant's evidence was to the effect that he acquired the suit land by way of purchase from the late

John Masawa and his wife Merina J. Masawa on 04/09/2009 he also tendered a letter which however was challenged in cross- examination and the Appellant admitted that the same was not signed by the late John Masawa. Surprisingly, Mr. Msegeya in this 17 appeal is telling this court that the Appellant was bequeathed the land the claim that is not supported by any evidence by the Appellant’s witnesses.’ The above passage bears out that one, claim by the respondent that was the lawful owner by way of purchase of the disputed premise from John Masawa was dismissed and two, that sale of the disputed premise by the 1st appellant to the 2nd appellant was found to be lawfully executed. It is without hesitation that the issue regarding sale of the disputed premise by John Masawa to the respondent and the 1st appellant to 2nd appellant which appear to be main reliefs in this appeal were conclusively determined in the former suit. Coming to the issue of parties I promised to deal with, indeed the 1st appellant was not party to the former application or appeal, however joining of the 1st appellant was determined in the former appeal when the court stated; ‘It is however, in my considered view that the seller being called as a witness of the Respondent did not support the Appellant’s claim that he bought the suit land, but it supported the 2nd respondent’s case that she purchased the same from

her. Moreover, for the sake of argument, even if the Appellant would have joined the seller in 18 the case, it could have not changed the result as the seller acted under the capacity of the administrator of the estates of the late John Masawa the action which would have been challenged in the probate court as per my findings above and the case of Frank Lionel Marealle vs Joseph Faustine Mawala (supra). In the circumstance, I see no ground to fault the trial Tribunal’s decision in relation to this ground of appeal. I therefore dismiss it.’ What appear to be the turning of events, is the statement of the court in former appeal that any challenges on administration of estates had to be resolved through probate court and the appellant’s possession of exhibit P4. Mrs. Kasebwa on one hand, submitted that the court conclusively determined the issue of ownership in the former appeal, on the other hand, Mr. Msegeya stated the court directed parties to go to the probate court. I have read and re-read the judgment in the former appeal and the holding in each ground presented as reproduced above. I am constrained to agree with Mrs. Kasebwa that in the former appeal the court did not direct parties to go to probate court. That is evident from the final holding of the court when it stated; 19 ‘All that said, I find that the Appellant’s complaint that the trial Tribunal did not properly

evaluate evidence is untenable. In the end, I dismiss the entire appeal for lack of merits with costs.’ Clearly, the extract above is unambiguous that, the matter was determined on merit after Ebrahim, J. in the former appeal evaluated evidence on record and finally came to the conclusion that the appeal lacked merits and dismissed it. The statement of the court in former appeal that any grievances on administration of estates of late John Masawa was to be channeled to probate court was not the decision of the court. It was statements in the passing. That is why the issue of ownership of the disputed premise between the 2nd appellant and the respondent was conclusively determined as I have tried to demonstrate above. Any issue regarding plot 152 block 47 Ghana area could not be reopened in any subsequent suit as between the parties including in probate and administration of estates proceedings as the case here. Aware that I am not sitting on appeal on exhibit P4, but in the passing I wish to state that the disputed premise could not have been included in form V and VI because when those forms were presented to the court, the 20 1st appellant had already sold it to the 2nd appellant, thus not forming part of the property of the deceased for distribution to heir(s) save for it’s proceed. From the discussion above, ownership of Plot 152 block 47 Ghana area within the city and

region of Mbeya between the 2nd appellant and respondent was conclusively determined in Application No. 249 of 2019 (exhibit D4) and could not be reopened even after addition or reduction of some party(ies). On this I am supported by the famous words of Lord Shaw in Haystead vs Commissioner of Taxation [1926] AC. 155 at page 166 while discussing the common law principle of estoppel per rem judicatum or res judicata when he stated; ‘Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case or new versions which they present as to what should be a proper apprehension, by the Court of the legal result. If this were permitted, litigation would have no end except when legal ingenuity is exhausted.’ In view of the foregoing position, I find merit in the appeal and hold that Application No. 62 of 2023 was res judicata to Application No. 249 21 of 2019 and Land Appeal No. 66 of 2021. Consequently, I allow the appeal with costs. V.M. NONGWA

JUDGE 8/1/2025 Dated and Delivered at Mbeya this 8th Day of January 2025 in presence of Messrs. Hassana Gyunda for the appellants and Gerald Msegeya, for the respondent. V.M. NONGWA

JUDGE 22