LAND APPEAL NO

© THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OFTANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) LAND APPEAL NO. 39 OF 2023 MUSA ELIAS COMPLAINANT/ APPELLANT/ APPLICANT/ PLAINTIFF VERSUS RAITON BALIKO RESPONDENT/ DEFENDANT JUDGMENT Fly Notes Facts Ratio Decidendi 5th of July 2024 Hon. RWIZILE.: This appeal arises from the decision of the of the District Land and Housing Tribunal in Application No. 2 of 2022. The appellant claims ownership of the land measuring au estimate of 5 acres. It is situated at Suuzu - Kumnyika village of Kasulu District in Kigoma Region. It was the appellant's claim that the land was acquired through a gift from his late father. The respondent on his party alleged the same was acquired through purchase from Amos Mathayo, now deceased. The record shows, the dispute was filed at Kumsenga Ward Tribunal which declared the respondent a lawful owner of the suit land. The appellant on his party, filed suit against him claiming the same land in the District Land and Housing Tribunal of Kasulu at Kasulu (DLHT). After a full hearing, it was decided in favour of the respondent on ground that the dispute was res judicata because it was finally heard and determined by the competent ward tribunal ofKumsenga. Aggrieved, the appellant preferred this appeal on 4 grounds: - 1. That, the trial Chairperson erred both in law and facts by finding that land case No. 02 of 2022 is Res judicata because it was before Kumsenga ward tribunal. 2. That, the trial Chairperson erred both in law and facts basing on improper admission of the exhibits. Page. I Hon. AUGUSTINE RWIZILE - ~ 3. That, the trial Chairperson erred both in law and facts by neglecting, avoiding and ignoring to visit the locus in quo contrary to the guiding principle. 4. That, the trial Chairperson erred both in law and facts for deciding the case in favour of the respondent basing on contradictory exh ibit and week evidence. At the hearing before me, the appellant was in the services of Mr. Bahati learned counsel, while the respondent was in the service of Mr. Kagashe, learned advocate. It was argued by Mr. Bahati on the first ground that the doctrine of res judicata is embodied in the Civil Procedure Code. He said, the matter was not heard by the tribunal. It was later filed which was heard and finally determined by the DLHT. According to the learned counsel, there is no record showing it was finally heard by the ward tribunal, it was only sent there for mediation. After failure of mediation, he added, it 1s true, it was not heard. That is why, he said, it was filed at another tribunal with jurisdiction. There was a dispute, but it is another case not for same parties. According to the learned counsel, the Kumsenga ward is a different place where Sunzu Kumnyika ward is located. The decision based on, did not have the same parties and the same are not in relation to this case. He said, the nam es are different. In the view of the learned counsel, mediation is governed by the amendment of 2021. The ward tribunal has no powers to hear the case that it had mediated. The learned counsel further submitted that the judgement must be according to the law, if not made according to the law, it is null and void. The dispute in his view was not res judicata. In his argument on the second and fourth grounds, it was submitted that, the evidence was contradictory, and section 110 of the Evidence Act ought to be considered. The documents and evidence were not analysed, he said. The sale agreement was tendered and there was no supporting evidence because he said, the seller was dead. There were two different persons, and the evidence contradicts the dispute at hand. It was his argument that exhibit P2 ought not to be admitted in evidence. The defence, according to him, was not supported by any evidence. The valuer was not present to testify, and his report could not be admitted because it was against the law. All documents were tendered by persons who were not competent to testify, he therefore asked this court to allow this appeal. When contesting this appeal, Mr. Kagashe clearly said, the dispute was res judicata. The learned counsel said, the appellant admitted on page two of the impugned judgement that there was a matter at Kumsenga Ward Tribunal, he was joined with his wife called Winfrida. He said, he lost the matter. In his view, the decision of Kumsenga ward ought to be appealed against if they were not satisfied. After a defeat, he argued, the appellant filed a matter before the tribunal. The decision of the ward tribunal remained, and it has never been challenged anywhere. It is still a good judgment because it was not quashed to date. Failure to challenge that decision rendered their case a res judicata. Arguing on the weight of evidence as per grounds 2 and 4. It was the duty of the appellant to prove the case. The evidence tendered was not believed by the tribunal and it was rightly so, the learned counsel added. The defence, he said, had such good evidence of ownership. Dw3, a chairman of the street witnessed the purchase of 5000 trees Page. 2 Hon. AUGUSTINE RWIZILE -- that were planted and destroyed by the appellant. Further, he argued, the evidence tendered was not objected to, in terms of section 42 of the Land Disputes Court Act. Based on his submission, he asked, this appeal be dismissed with costs. In his brief rejoinder Mr. Bahati argued that the parties must be the same in order res judicata to hold. The decisions of the tw o ward tribunals are not of the same parties. He further said, one cann ot appeal on the defective judgement. He asked this court to allow this appeal. Starting with the first ground. Res Judicata is provided for under section 9 of the Civil Procedure Code [CAP. 33 R.E. 2019) which states as hereunder; "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 andfinally decided by such court. " It is the law therefore, that for the doctrine of res judicata to hold, the case must not only be litigated by the same parties, under the same title, and issues but also should be done by the court with competence to try it. As submitted, I doubt, if the Ward tribunal of Kumsenga was competent to try the case. Powers of the Ward tribunal to try cases, are governed by section 13 of the Land Disputes Courts Act [CAP. 216 R.E. 2019). Originally, the Ward tribunal had both roles, that is, mediation and adjudication. In 2021 through Written Laws (Miscellaneous Amendments) (No. 3) Act, 2021, which came into force in November2021 revised jurisdiction of the Ward Tribunal to mediation. It states thus; Notwithstanding subsection (1), the District Land and Housing Tribunal shall not hear any proceeding affecting the title to or any interest in land unless the ward tribunal has certified that it has failed to settle the matter amicably: Provided that, where the ward tribunal fails to settle a land dispute within thirty days from the date the matter was instituted, the aggrieved party may proceed to institute the land dispute without the certificate from the ward tribunal. It is the position of the law that upon unsuccessful mediation, the ward tribunal has to certify that mediation has failed and the party has to file a dispute at the District Land and Housing Tribunal for adjudication. Explicitly, the record has it that the dispute was filed before Kumsenga Ward Tribunal on 3 I st December 2021, days after its jurisdiction to hear such disputes was reduced to a role of mediation. It is not therefore in dispute that hearing of the alleged dispute as it has been submitted was in its jurisdiction. It is plain that it heard the dispute and as submitted held that the respondent had a better title to the disputed land. As a result, the doctrine of Res Judicata cannot apply, since the dispute was adjudicated by the tribunal without jurisdiction. The tribunal was therefore not justified to enter judgement for the respondent on the that basis. It had no jurisdiction to try the same. This ground has merit. Page. 3 Hon. AUGUSTINE RWJZILE ii . - Since this first ground disposes of the appeal, there is no need to deal with other grounds because the same touch on merits of the case. It is clear that the judgement only based on the res judicata issue. There is therefore not decision on merits. Because the parties were heard. I therefore, nullify the judgement and set aside the decree. The record is remitted to the trial tribunal for composing a judgement touching on the merits of the case based on the issues framed. In the interest of justice, it should be done before another chairperson with competent jurisdiction. There is no order as to costs. Dated at KIGOMA ZONE this 5th of July 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page. 4 Hon. AUGUSTINE RWIZILE --