mussa constantino ndwangila vs rajabu athumani others 2018 tzhclandd 485 8 august 2018

IN THE HIGH CORT OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND APPEAL NO. 80 OF 2017 (An Appeal originating from Land Application No. 117 of 2014 in the District Land and Housing Tribunal for Coast Region at Kibaha) MUSSA COSTANTINO NDWANGILA................APPELLANT VERSUS RAJABU ATHUMANI AND 8 OTHERS..........RESPONDENTS Date of last Order: 8/5/2018 Date o f the Judgement: 3/8/2018 JUDGMENT MGONYA, J. The Appellant MUSSA COSTANTINO NDWANGILA filed this Appeal after being aggrieved by the decision of the District Land and Housing Tribunal for Coast Region at Kibaha [herein to be referred to as the District Land and Housing Tribunal] which was delivered on 13/03/2017 on the following grounds;- 1. That the trial Chairperson grossly erred in law and fact by dismissing the Appellant's application on the ground of being Res judicata, while the parties in Land Application No. 21 o f 2012 were compieteiy different with those appearing in Land Application No. 117 of 2014. 2. That the Trial Chairperson grossly erred in law and fact by failing to differentiate between the cause of action pleaded by the Applicant in Land Application 21/2012 and the declaration made by the Tribunal in favour of Applicant in Land Application 117/2014. 3. That the trial Chairperson grossly erred in law and fact by deliberately failing to note that, judgement once delivered by competent Court or Tribunal the matter can never be Res judicata at appeal level because rights of parties as far as issues at the trial have already been determined. 4. That the Trial Chairperson miserably and grossly held that there was an abuse of court process while in fact there was none or rather it was in the court's side that wrongly dismissed the Appellants application. The Appellant thus prays that this Court allows the Appeal with Costs and the Case file No. 117 of 2014 be remitted to trial Tribunal for continuation of its determination before another Chairperson In reply, Respondents jointly strongly disputed the four grounds of Appeal as presented by Appellant through his Memorandum of Appeal, praying the Appeal be dismissed with costs. When the matter came for hearing, the Appellant enjoyed the services of Mr. Mwarabu Advocate, while Respondents were represented by Mr. Kiondo Advocate. With leave of this Court, hearing of the Appeal was by way of written submissions. It was submitted by the Appellant, that the parties in Land Application No. 117 of 2014 were not the same as a appearing in the Land Application No. 21 of 2012 for the matter to be termed as Res-judicata. The Counsel submitted further that the aim of the doctrine of Res-judicata does not bar a party from being sued upon repeating the same offence; and hence the time of occurrence of the cause of action was different, then Hon. Chairman was wrong to invoke the doctrine of Res-judicata to Application No. 117 of 2014 before the District Land and Housing Tribunal. In that case, the trial Chairperson ought not to dismiss the Application on ground of being Res judicata because 1st Respondent apart from being a party also to the previous Land Application No. 21 of 2012 in the same Tribunal, continued to sell pieces of land from the Appellant's farm to other Respondents who are completely different from the previous Respondents, and who are new Respondents to the new Application. Which is Land Application No. 117 of 2014; in which the instant Appeal rests. Submitting on the second ground of Appeal, the Appellant averred that, the trial Chairperson failed to differentiate the cause of action in Land Application No. 117 of 2014 and Land Application No. 21 of 2012. Appellant stated that it was from the basis of the submission of the 1st ground that the cause of action was not the same as accrual time was veined from that of the former suit. The Appellant's submission was supported by the case of DARLENE BLAIR VS. GEICO GENERAL INSURANCE COMPANY, CIVIL NO. 11 - 156 GFVT. With regards to the 3rd ground of Appeal, the Appellant submitted that, the Appeal arising from Land Application No. 21 of 2012 was quite different from the Land Application No. 117 of 2014. He contended that, as submitted on 1st and 2nd grounds, hence once the rights of the parties carefully determined by the competent court the doctrine of re judicata does not stand in barring a party from instituting a new suit out of the same cause of action arising in a different time and with different parties although some of them can repeat. He prayed this court to find that Land Application No. 117 of 2014 is not related in anyway with Misc. Land Application No. 565 of 2016 which was before Hon. Wambura J. at the High Court to term the matter Res-Sub judice. On the 4th ground of Appeal, Appellant submitted that the trial Chairperson was wrong to hold that there was abuse of court process, and instead he is the one who failed to properly apply the doctrine of Res judicata hence the Appellant was proper to institute a new suit arising from the cause of action that accrued in different time as opposed to the Land Application No. 21 of 2012 . Finally, the Appellant prayed before this Hon. court his Appeal be allowed with costs and Application No. 117 of 2014 he remitted to the trial Tribunal for continuation of its determination before another Chairperson. In responding to the Appellant's written submission in support of grounds of Appeal, Respondents strongly opposed the submission by arguing the 1st, 3rd and 4th grounds jointly and the 2nd ground separately. Regarding to grounds No. 1, 3 and 4 the Respondents submitted that the matter in issue in the case subject of this Appeal was also directly and substantially in issues in the previous case between the Appellant and the 1st and 3rd Respondents. In both cases Applicant is claiming ownership over the same suit land, as per page 5 of the ruling subjected to this Appeal. The Respondents cited the case of UMOJA GARAGE VS. NBC HOLDINGS CORPORATION [2003] TLR 339 at page 343 to support their argument. Respondents further submitted that, the 1st and 3rd Respondents were among 8 Respondents in Application No. 21 of 2012 against the Appellant in the same Tribunal and the Appellant in both cases enjoyed the services of Mr. Mwarabu, Advocate. Then the Judgment entered in favour of the Appellant in which two years later the Appellant sued 9 people, in which the 1st and 3rd Respondents were among them claiming ownership on the same land the against the Appellant. Further, the 1st and 3rd Respondents and others being aggrieved by the decision of Application No. 21 of 2012 they filed Misc. Land Application No. 565 of 2016 for extension of time to Appeal. Further, while the said Application was pending determination; the Appellant instituted Application No. 117 of 2014, hence the same is Res subjudice as against the 1st and 3rd Respondents. It was the Respondents' concern that, the Appellant's reliefs sought in both cases are the same that is the Court order/ declaration that the Appellant is the lawful owner of the suit land in which the said issue of "ownership" was finally and conclusive determined in earlier case as between the Appellant and the 1st and 3rd Respondents. For that matter, it is the Respondents' contention that the present case against the 1st Respondents and 3rd Respondents is res judicata and res sub-judice. On the ground of "cause of action" the Respondents submitted that, between the two cases that cause of action is the same, hence the matter is Res-judicata, Res sub judice and abuse of court process. Before I determine the Appeal at hand, I see it wise to narrate the brief history of this case, as herein below:- The Appellant herein brought a disputed land from one SALUM MBUYA in 1996 for Tshs. 150,000/= and evidenced by one MUSA RAJABU. Later on PETER NYAMBASI invaded the disputed land and the matter went to Magomeni Ward Tribunal which its decisions found in favour of the Appellant. Later in 2011 the Appellant sued the 1st Respondent for invading and sell the suit land to other people. Later the matter was brought to District Land and Housing Tribunal at Kibaha Coast Region vide Application No. 21 of 2012 in which the Appellant claimed for:- 1. The Court's Declaration that he is a lawful owner of the disputed farm; 2. Respondents be ordered to demolish their structures and give vacant possession of the farm to the Appellant; 3. Costs of the Application be borne by all Respondents; and 4. Any other reliefs or order the Tribunal deems fit to grant 8 The District Land and Housing Tribunal decided in favour of the Appellant. The Respondents being aggrieved by the said decision attempted to seek for an extension of time to appeal out of time vide Application No. 565 of 2016 before Wambura, J. which was unsuccessfully for no reasonable ground has been therein adduced. Again, sometimes in 2011 on the different dates, it is alleged that the 1st Respondent continued to invade to the Appellant's farm located at Kimara Ng'ombe Area in Bagamoyo District and sold some portions of the same to 2, 3, 4, 5, 6, 7, 8 and 9 Respondents who started to develop the same. As such, Appellant filed Land Application No. 117 of 2014 in District Land and Housing Tribunal for Kibaha in Coast Region against Respondent seeking for the following orders: 1. Court's declaration that the Appellant is the lawful owner o f the disputed farm; 2. Demolition of erected structure in the disputed farm; 3. Yielding of vacant possession to the Appellant; and 4. Costs o f the suit That, on 13th March, 2017 the Application was dismissed with costs on the reason of it being res judicata and res subjudice in lieu of the Land Application No 21 of 2012 in the District Land and Housing Tribunal for Coast Region at Kibaha and Misc. Land Application No. 565 of 2016 before the High Court of Tanzania. The Appellant being aggrieved with the said decision, instituted the Appeal at hand. Having gone through the submission advanced by both parties, with regard to the issue of Res judicata and Res subjudice, it came to my knowledge that the previous suit, Land Application No. 21 of 2012 had been finalized and the parties therein were MUSSA COSTANTINO NDWANGILA @ CHINGA VS. RAJABU ATHUMAN AND 7 OTHERS and in the present case Land Application No. 117 of 2014, parties are MUSSA COSTANTINO NDWANGILA @ CHINGA VS. RAJABU ATHUMAN, JUSTINAN KABATE, JOSEPH MSAKI, CHRISTOPHER JACKSON, HUSSEIN ABDALLAH MAPENE, KOKUNZOWA, WALIIYUSUPH and ABEL PHILIP MADUHU. It is my view, in order to establish these two principles of Res judicata, there are four 4 essential elements on the rules as follows:- 10 (i) The judicial decision was pronounced by the court o f competentJurisdiction; (ii) The subject matter and the issue decided are the same or Substantially the same as the issue in the subsequent suit; (Hi) That the judicial decision was final; and (iv) That it was in respect of the same parties litigating under the same title. From the records of this case, the subject matter of the Land Application No. 117 of 2014 is the same to the subject matter of the previous Land Application No. 21/2012. However in Land Application No. 21/2012 the parties for the Respondents, the record does not reveals the names of the Respondents since the parties to the same read as MUSSA COSTANTINO NDWANGILA @ CHINGA VS. RAJABU ATHUMAN AND 7 OTHERS; while in Land Application No 117/2014 the parties appears as MUSSA COSTANTINO NDWANGILA @ CHINGA VS. RAJABU ATHUMAN, JUSTINAN KABATE, JOSEPH MSAKI, CHRISTOPHER JACKSON, HUSSEIN ABDALLAH MAPENEjr KOKUNZOWA, WALII YUSUPH and ABEL PHILOP MADUHU. On the serious note, the parties in the previous suit were not mentioned so that this Court can determine that are the same as seen in the present suit. The 1st Respondent is the only Respondent who for sure can be said to appear in both Applications. At this juncture, let me now determine the grounds of Appeal. I am inclined to join hands with the submission made by the Appellant's Counsel that Land Application No 117/2014 is not a Res Judicata. From the above principles, this this concept been totally misconceived. On the issue of whether Land Application No 117/2014 is a Res Judicata or not, it was important for the Hon. Chairman before his decision to enquire the names of the parties to Land Application No. 21/2012. That was important since, through the parties submissions I have noted that indeed, the parties to these two Applications are quite different hence, the essentials ingredients of Res-Judicata are not in place as stipulated under Sections 8 and 9 of the Civil Procedure Code Cap. 33 [R. E. 2002]. Further, I was surprised that one of the Respondent's Counsel point to insist that the matter was Res Judicata because even the Applicant's Counsel to both Application was the same. That does not have any legal effect to the matter. It suffice to say that it wasn't necessary at all to mention that matter. 12 Regarding the issue of the Land Application No. 21/2012 being Res-subjudice, this matter too is totally misconceived since the Misc. Land Application No. 565 of 2016 mentioned and termed as another case/suit against the Land Application No 117/2014, was just an Application for extension of time to file an appeal against the decision in Land Application No. 21/2012., in which after all the same was dismissed. It is for that matter again, Land Application No 117/2014 cannot be termed as Res-Subjudice. In the event therefore, I don't hesitate to state that the 1st and 3rd grounds have merits. As regard to the second ground which is all about the failure of the Hon. Chairman to differentiate the cause of action and time of events between the two Applications, after going through the submissions and the records as a whole, I am satisfied that Plaint in both suit discloses the cause of action against the Respondents. In my view, though the cause of action is the same to both Applications, yet there is time variance and difference of parties involved into the said cause of actions. It was proper for every Plaint to disclose its cause of action against the Respondents since the cause of action between the two Applications is not the same as accrual time is at variance though the same occurred into the same disputed land. It suffice to say that the 2nd ground has merit. As for the 4th ground of Appeal that there was an abuse of court process while in fact there was none or rather it was in the court's side that wrongly dismissed the Appellant's application, indeed; I am joining hands with the Appellant's Counsel that under the circumstances of these Applications, I hesitate to use the word abuse of court process, but rather misconception of the issues before the court or rather Tribunals. I have seen it in different ways. One being the misconception of the issues of Res Judicata and Res Subjudice while the law is clear that they were not involved in the two Applications before the Tribunal, to name the few. Before the court there is a very valid claim which is yet to be determined. In the real sense, it is through the said abuse of court process the unwanted points of preliminary objections have been raised and make the main claim which is yet to be heard and determined. In the view of the above, I am satisfied that all grounds of Appeal as discussed above have merits. In the event therefore, I proceed to allow this Appeal. 14 Further, I proceed to order that the Land Application No. 117 of 2014 be remitted to the Trial Tribunal for continuation for trial to its final determination before another Chairperson. Each party to bear its own costs. Right of Appeal Explained. L. E. MGONYA JUDGE 3/8/2018 COURT: Judgment delivered in the presence of Advocate Mwarabu for Appellant, Advocate Kiondo for 1st - 9th Respondents and Ms. Emmy B/C in my chamber today 3/8/2018. L. E. MGONYA JUDGE 3/8/2018 15