CIV

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA CIVIL APPEAL NO 422 OF 2022 MICHAEL OBIERO (Administrator of the estate of the Late OBIERO OKINYI)..................................... APPELLANT VERSUS AGER ONDIEK................................................................. 1st RESPONDENT ODIRA O BA YE.................................................................2nd RESPONDENT (Appeal from the Judgment and decree of the High Court of Tanzania at Musoma) (Mahimbali. 3.1 dated the 12th day of November, 2021 in Land Appeal No. 39 OF 2021 JUDGMENT OF THE COURT 10th & 17th July, 2024 MGONYA, J.A.: The appellant, Michael Obiero (Administrator of the estate of the late Obiero Okinyi), was aggrieved by the decision of the High Court at Musoma (Mahimbali, J.) in its appellate jurisdiction in Land Appeal No. 39 of 2021, originating from the District Land and Housing Tribunal (DLHT) for Tarime in Application No. 2 of 2020. The impugned judgment quashed and set aside the decision of the DLHT which was in favor of the appellant. i The facts leading to this appeal, albeit in brief go as thus: The appellant and the respondents are warring over the ownership of land allocated at Mori village within Rorya District, in Mara Region (the suit land). Before the DLHT, the appellant testified that, he acquired the land as he was appointed as administrator of the estate of his late father. That his late father owned the suit land since 1950s. To support his case, the appellant summoned one witness. The second respondent, on the other hand like the appellant, he also testified that, the suit land was owned by his late uncle one Paurus Maranda Ong'ora. The second respondent further testified to have been appointed as administrator of the estate of his late uncle, hence accountable for the suit land. The first respondent testified to the effect that, the suit land was allocated to him by the Village Land Committee in 1984. To support his case, he summoned a sole witness (DW3) who was among the leaders of the Village Land Committee who participated to allocate him the suit land. Therefore, the laid controversy in this case, is that, all parties herein claim to be lawful owners of the suit land. Upon hearing, the DLHT resolved the above issue in the appellant's favor. The trial Tribunal declared the respondents trespassers hence, they were ordered them to give vacant possession of the suit land with 2 immediate effect. Aggrieved with that decision, the respondents successfully lodged an appeal to the High Court at Musoma. The court determined the appeal in their favor whereby, the DLHT judgement was quashed and set aside. As the appellant is dissatisfied with the decision of the High Court, he has now knocked the door of this Court through the instant appeal based on the following three grounds: 1. That the Honorable Judge misdirected himseif in law and fact by his failure to hold that so long as judgment o f the District Land and Housing Tribunal for Tarime District in Land Application No. 31 o f 2013 between the Appellant and Umoja wa Wakulima Chereche declared the appellant as lawful owner o f the disputed piece o f land which judgment is still intact to date, the issue regarding who is lawful owner o f the disputed piece o f land was settled in Land Application No. 31 o f 2013 unless set aside on review or revision. 2. That the Honorable Judge erred in law and fact by finding that\ the disputed piece o f land was allocated to Paurus Maranda during the village settlement scheme without any proof while there was ample evidence on record proving that the same village committee allocated the same piece o f land to UWACHERO in 2013, which act gave rise to Application No. 31/2013 before the District Land and Housing Tribunal resolved it in the appellant's favor. 3 3. That the Honorable Judge erred both in law and fact by finding that the appellant failed to prove that the respondents are not owners o f the disputed piece o f land contrary to the evidence on record. Hearing of this appeal was conducted via video conference. All the parties appeared unrepresented. When invited to submit in support of his appeal, the appellant told the Court that, he had filed his written submission in support of the appeal before the Court. Hence, he prayed the same to be considered, and he had nothing to add. Likewise, for the respondents, they also beseeched the Court to use their joint written submissions in reply which was earlier filed before the Court for appeal determination. In his written submission, the appellant prayed to consolidate all grounds of appeal and argued the same conjointly. He stated that, in 2012 following the demise of their later father, part of the suit land was invaded by Umoja wa Wakulima Chereche Rorya (UWACHERO) and another part was invaded by Daud Marwa Magorombe. Due to the said trespass, the appellant successfully sued them before the DLHT vide Land Application No. 31/2013 and 30/2013 respectively. That the Tribunal (Mayeye, Chairman), declared him a lawful owner of the suit land. The appellant went on to submit that, the part of the suit land was the same which was invaded by UWACHERO. That if the disputed piece of land was allocated to Paulus Maranda during Operation Vijiji, the same village could not allocate it again to UWACHERO. It was the appellant's position that, according to the law, when an issue regarding ownership of a piece of land is raised and if there is an existing decision which had already declared who is the lawful owner of the same land, the said issue cannot be re-opened in the subsequent case, even if it involves a declared party and a different/third party. Therefore, having been declared the lawful owner by the DLHT, in a decision dated 2/10/2014 in Application No. 31 of 2013, the only remedy available to the respondents was to challenge the decision by way of revision or review. It was the appellant's stance that, once a declaration of ownership is made in a former suit, the issue of ownership is settled unless otherwise varied by the Higher Court. To bolster his stance, a case of Sebastian Ngimbwa v. Minister for Lands and Human Settlement Development, The Commissioner for Lands and The Attorney General, Civil Appeal No. 28 of 2003, was relied on. Further to that, the appellant submitted that, the second respondent never disclosed in the pleadings that he derived the title over the disputed 5 land from Paurus Maranda, rather he insisted to be the lawful owner for more than 46 years. Hence, the respondents are departing from their own pleadings. On the premise of what he submitted; the appellant prayed the Court to allow the appeal with costs. The respondents on the other side, argued in opposition that, they were not parties to the Land Application No. 31 of 2013, hence they are not bound by the said decision. Equally, responding to the submission that the same piece of land alleged to be allocated to the late Paurus Maranda and UWACHERO, the respondents contended that, the suit land was lawfully allocated to the late Paurus Maranda Ong'ora by Mori Village Land Allocation Committee in 1973/1974. That, there was ample evidence on record to prove that the land was allocated to him which includes seven graves of the second respondent's family members which are in the disputed land. Therefore, the assertion that the same land was allocated to UWACHERO was untrue. By referring this Court to section 15 (1) of the Village Land Act, Cap. 114, the respondents averred that, the land allocation made prior 1970 to 30th December 1977, were extinguished by the land allocation made by the Land Settlement Scheme. Therefore, the respondents submitted that, 6 the land rights vested to the late Obiero Okinyi in 1950 were extinguished by the operation of law. Basing on what they submitted, the respondents prayed this Court to dismiss the appellant's appeal with costs and the judgment of the High Court to be upheld in its entirety. Having considered the record of the appeal, the written submissions, the cited laws as well as the authorities, the main issues which call for the decision of this Court are: i) Whether after determination o f application No. 31 o f 2013 the DLHT was barred to determine Land Application No. 2 o f2020, the subject matter o f this appeal; ii) Whether the decision in Land Application No. 31 o f 2013 binds the respondents herein. Hi) Whether the High Court erred to decide against the appellant herein. Regarding the first issue, it was the appellant's argument that, Application No. 31/2013 between the appellant and UWACHERO involved the piece of land which is also the disputed land subject of this appeal. According to the appellant, since the DLHT had determined the former dispute and declared him the lawful owner of the suit land, the Tribunal was estopped to determine the dispute subject of this appeal. From the applicant's written submission, conceivably, this Court is called upon to invoke the doctrine of res judicata, that, after the DLHT had decided Land Application No. 31 of 2013, then it was barred to determine any other land application which involved the same land. We are not unmindful of the fact that, there must be an end of litigations whereby, courts are precluded to try any suit or issue in which the matter has been directly and substantially in issue in a former suit between the same parties or their privies. The Supreme Court of India explaining the essence of the principle of res judicata in M. Nagabhushana v. State of Karnataka & Ors. [2011] INSC 88 stated thus: "The principle o f Res Judicata is o f universal application as it is based on two age old principles, namely, interest reipublicae ut sit finis iitium ' which means that it is in the interest o f the State that there should be an end to litigation and the other principle is nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine o f Res Judicata is common to aii civilized systems o f jurisprudence to the extent that a judgment after a proper trial by a Court o f competent jurisdiction should be regarded as final and conclusive determination o f the questions litigated and should for ever set the controversy at re st" In our jurisdiction the principle of res judicata is provided for under section 9 of the Civil Procedure Code, Cap. 33 which 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 o f 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." The prime object for having the above provision is to bar multiplicity of suits and guarantee finality to litigation. This Court in Peniel Lota v. Gabriel & Others [2003] TLR 312, held that: "The doctrine o f res judicata is provided for in section 9 o f the Civil Procedure Code 1966. Its object is to bar multiplicity o f suits and guarantee finality to litigation. It makes conclusive a final judgment between the same parties or their privies on the same issue by a court o f competent jurisdiction in the subject matter o f the suit." Reading between the lines, section 9 of the Civil Procedure Code, provides for five pre-conditions which appear to be conjunctive. This means, all pre-conditions indicated must be present before a suit or an issue is deemed res judicata. Those pre conditions are; 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, the parties must have litigated under the same title in the former suit; four, the court which decided the former suit must have been competent to try the subsequent suit; and five, the matter in issue must have been heard and finally decided in the former suit. The above pre conditions have been adumbrated by this Court in numerous decisions. For instance, in Yohana Dismas Nyakibari and Another v. Lushoto Tea Company Limited and 2 Others, Civil Appeal No. 90 of 2008 and East African Development Bank v. Blueline Enterprises Limited, Civil Appeal No. 110 of 2011 (both unreported), to mention a few. In the instant appeal, having gone through the record of this appeal, we find the appellant's argument that, the DLHT was barred to determine the matter subject to this appeal is not supported by the law. The reason for our finding is very simple and straight forward, that parties in the previous Application No. 31/2013 were Michael Obiero as the Applicant and Umoja Wakulima Chereche Rorya being the respondent, while in Application No. 2/2020 which is the subject to this appeal, the litigants were; Michael Obiero (Administrator of the estate of the late Obiero Okinyi) as the applicant and the respondents were Ager Ondiek and Odira Obaye. Therefore, it does not need a third eye to ascertain that parties in the former and subsequent suit are not the same. That being the case, as we have discussed earlier that for a plea of res judicate to succeed, all the pre-conditions under section 9 must be established. Therefore, having found that the parties in a previous and current suits are not the same, we respond to the first issue in the negative. li Moving to the second issue on whether the decision in Application No. 31/2013 binds the respondents herein; as alluded to above that, there exists a judgment in Application No. 31/2013 which according to the appellant the dispute involved the land which is also the subject matter in this appeal. Therefore, the decision made in the said application which was in his favor, barred the respondents herein to claim any right over the said land. It is trite law that, a judgment rendered in a particular case affects only the parties to the suit. This means that a judgment cannot be allowed to operate to the detriment of a stranger. This Court in the case of Jacqueline Jonathan Mkonyi and Another v. Gausal Properties Limited, Civil Appeal No. 311 of 2020 (unreported), when faced with akin situation, approved the persuasive decision made in Issack Nguvumali v. Petro Bikulake (substituted by Mtalikwa Bikulake) (1972) H.C.D 139, where it was held that: ".....in land cases judgment in favour o f a party is not alwaysjudgment against the whole world so it does not bind those who were not parties, and res judicata cannot apply." 12 On our part, we also have the same view as nothing can be far from the truth that, the respondents herein were not parties to Land Application No. 31/2013. This implies that they were not before the Tribunal and heard on that suit. Therefore, premising our position on those facts, we hold that they cannot be bound by the decision in the case to which they were not parties; hence they are strangers to it, unless the said judgment was a judgment in rem which was not the case. As a result, therefore, the respondents in this appeal are not bound by the decision made in Land Application No. 31/2013. Thus, the second issue is answered in the negative. Moving to the third issue on whether the High Court Judge erred to decide against the appellant, which basically involves the third ground of complaint, having examined the considered judgment of the High Court Judge, we do not wish to spill much ink on this ground. It is evidenced from the record that, the High Court found that the appellant failed to discharge his burden of proof as provided under sections 110 and 111 of the Tanzania Evidence Act (the TEA). The appellate Judge, re-evaluated the evidence on record and finally concluded that the appellant failed to prove his case as neither the appellant nor his witness managed to prove their allegation that the appellant's father occupied the disputed land since 1950s. We also have the same view with the High Court Judge that, the appellant's allegation that his father had been in occupation of the disputed land since 1950s, was not proved on the balance of probabilities as provided under section 3(2) of TEA. Since the main issue before the DLHT was the ownership of the land which was not registered, the High Court Judge was right to accord weight on the evidence of DW2 who tendered exhibit. D4 (a letter written on 10/03/1984 by the Chereche Village allocating the land to Silvanus Agar Ondiek). Likewise, the evidence by DW3, a former Village Chairman who was also a member of the Land Committee, who testified that the Land Committee allocated the disputed land to Paurus Maranda Ong'ora (the second respondent's uncle). The evidence of DW2 and DW3 was indispensable in this matter. Being guided by our previous decision in James G. Kusaga v. Sebastian Kolowa Memorial University (Sekomu), Civil Appeal No. 73 of 2023 (unreported) where this Court reaffirmed the principle established in the case of Hemed Said v. Mohamed Mbilu [1984] T. L. R. 113, that: "the person whose weight o f evidence is heavier must win." 14 we have no hesitation to find that, the High Court Judge was right in the finding that the appellant failed to prove that the respondents are not lawful owners of the disputed land as they testified. Hence, the third issue is equally responded in the negative. All said and done, we find that the appellant's appeal has no merit and we accordingly dismiss it with costs. DATED at MUSOMA this 17th day of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 17th day of July, 2024 in the presence of the appellant and 1st Respondent in the absence of the 2nd Respondent via video conference, is hereby certified as a true copy of the original. J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAL