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THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND APPEAL NO. 02 OF 2024 (From the Ruling in Land Application No. 2 of 2024 of Kyela District Land and Housing Tribunal for Kyela) NIGA ANGETILE MWAKAJUMBA (Administrator of Estate of the Late deceased Asagwile Mwandobo)……………….... APPELLANT VERSUS OWDEN MWABUSILA…………..…………….………1ST RESPONDENT OSWARD LOITI SANGA (The Administrator of the estate of the late Justin Abas Sanga)……………...………...2ND RESPONDENT JUDGMENT Date: 12 August 2024 & 30 August 2024 SINDA, J.: The appellant in this appeal at the District Land and Housing Tribunal for Kyela at Kyela (the DLHT) filed Land Application No. 94 of 2023 claiming that the land located at Idara ya maji street within Kyela District at Mbeya (the Disputed Land) bordered by Sita Asagwile and Jastini Abas Sanga in the East, Kyela-Mbeya main road in the west, Mr. Mwakalinga 1 (deceased) in north and Jabson Mwakipesile in the southern belongs to Asagwile Mwandobo (the Deceased). The deceased was allocated the Disputed Land 50 years ago by one Nelson Mwaikambo, a local customary leader known as a chief by then. The appellant alleged that the second respondent is the buyer of the Disputed Land while the first respondent is the seller. In reply the respondents in WSD raised a preliminary objection on point (P.O.) law to the effect that the application filed by appellant was res judicata through Land Application No. 6 of 2016. On 06 February 2024, the court scheduled hearing of the P.O. on 19 February 2023 and on that date the applicant prayed the P.O. to be argued by way of written submission. The second respondent stated that because they engaged an advocate and since their advocate was not present the matter should wait for their advocate to respond on that. Then the matter was adjorned until 23 February 2024 for hearing of the P.O. On 22 February 2024, the appellant filed a letter which required the trial chairman together with the assessors to disqualify themselves on hearing of the application claiming that on 19 February 2024 when he prayed for the P.O. to be argued by way of written submission the trial chairman asked that why he did not make such prayer on 6 February 2 2024. He stated that is the reason which convinced him to reject the trial chairman because he has no faith with him. He insisted that the trial chairman and the assessors to disqualify themselves from hearing the application. The application of the appellant regarding disqualification of the trial chairman and his assessors was heard. The DLHT ruled that the applicant has not advanced sufficient reason to warrant him to disqualify himself and the assessors. He proceeded to schedule the date of hearing of the P.O. On 4 March 2024, the appellant filed another letter at the DLHT to insist the trial chairman and his assessors to disqualify themselves from hearing application. The DLHT ruled that the DLHT had already given an order on that issue. Therefore, the DLHT cannot revise its decision. That, the appellant will have the right to appeal at the end of the case and ordered hearing of the P.O. to continue. The appellant refused to continue with the hearing of the P.O. The trial chairman ordered the matter to proceed ex parte against the applicant. At the end of hearing the DLHT found that the application filed by applicant was res judicata and dismissed it with cost. 3 Dissatisfied with decision the appellant filed this appeal with two grounds as follows: 1. That, the trial chairman was wrong when he held that his objection was unfounded. 2. That, the trial chairman faulted when conducted a bias and unfair proceedings which lead him to mistrust him from hearing the case. At the hearing of the appeal, the appellant appeared in personal while the respondents were represented by P. Y. Maumba, learned counsel. The appeal was argued by way of written submission. On the first ground of appeal, the appellant submitted that the DLHT erred to decide that the application is res judicata. He argued that the appeal against the impugned judgment in Land Appeal No. 23 of 2021 was dismissed based on variance of names which differs from those appeared at the DLHT. Thus, the court held that he had no locus stand to appear as the respondent. So, the only way to defend his right was not to appeal but to file a fresh case. He submitted that he had no locus stand even in the two cases Land Application No. 02 of 2024 and Land Application No. 06 of 2016. As such, the decision of those two cases were invalid. He submitted that in order for a case to be res judicata the case must be heard on merit unlike the case at hand. He referred to the conditions of 4 res judicata in the case of Peniel Lotta vs. Gabriel Tanaki and 2 Others, Civil Appeal No. 61 of 1999 which referred to section 9 of Civil Procedure Code, 1966 (the CPC). He insisted that the appellant had no locus in those two cases so this doctrine of res judicata cannot apply. On the second ground he submitted that the case was decided ex-parte. He blamed the trial chairman from his bias in conducting the case. The trial chairman did not agree to disqualify himself and continued with the case in absence of appellant. He stated the decision of the chair of the tribunal was unfair. In reply, the respondent first submitted that the appellant has argued/raised the two new grounds to wit: 1. That the DLHT erred in law and fact in holding that the Land Application No. 2 of 2024 is res judicata in the eyes of law. 2. That, the DLHT erred in deciding the Land Application No. 2 of 2024 ex -parte unreasonable in his presence. Mr. Maumba argued that the appellant raised these two new grounds in his submission without leave of the court. He was of the view that the appellant failed to argue his appeal. However, the respondent insisted that the Land Case No .2 of 2024 was res judicata vide Land Application No. 6 of 2016 because the case involved 5 the same subject matter and the same parties. That, the decision of the Land Case No. 6 of 2016 was not revised by the superior court. He referred to section 9 of the CPC and the case of Karsan vs. Broghal (1953) 20 EACA, 74 and section 42 of the Law of Evidence Act Cap 6 R.E 2022 (the TEA) On the second ground he submitted that the matter came for mention on 06 February 2024. The respondent prayed for the P.O. to be argued orally. The appellant did not raise any objection. The DLHT adjorned the matter until 19 February 2024. On that date when the matter was fixed for hearing, the appellant prayed to argue the matter by way of written submission. The second respondent stated that he cannot give an answer except to wait for his advocate. Then, they attended the DLHT on 23 February 2024. The applicant instead of making his prayer in presence of the respondent advocate, the appellant served them a letter to disqualify the on the allegation that he has no faith in him. The DLHT ruled that there was no sufficient ground for disqualification. It was his submission that fear alone or apprehension of biasness of a litigant are not sufficient reasons for magistrate or judge to disqualify himself in the case otherwise the supreme court in adjudication field will be hampered. He referred the case of Republic vs. Seif Sharif Hamad 6 (1992) TLR 277 to cement his argument. He insisted that the defect in ruling and biasness alleged by appellant does not exist, he supported the ruling of the DLHT. I have considered the court records, grounds of appeal and submission by the parties. I wish to begin with the issue raised by the respondent advocate on his submission that the appellant has raised two new grounds in his submission which was not among the grounds filed by the appellant on his petition of appeal. It is a settled position of law that parties are bound by their pleadings. This was stated in the case of Makori Wassaga vs. Joshua Mwaikambo & Another [1987] T.L.R 88, the Court stated that: "A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case." I have gone through petition of appeal and submission of appellant, as correct argued by the respondent, I find that the appellant argued first on the ground that the DLHT erred to decided that the Land Application No. 2 of 2024 was res judicata vide Land Application No. 06 of 2016. Secondly, the appellant on the issue of the DLHT to decide Land Application No.2 ex-parte unreasonably. This was not among any of the grounds filed by 7 the appellant on his memorandum of appeal. The appellant left his ground of appeal unargued in that circumstance I will not consider his submission in my deliberation. I will therefore continue to deliberate the appellant grounds of appeal jointly because they are related. In this case the records show that when the case was scheduled for hearing of the P.O. on 4 March 2024, the appellant filed letters which required the trial chairman together with his assessors to disqualify themselves from hearing that application. Rule 9 (1) and (2) of the Code of Conduct and Ethics for Judicial officers 2020, GN. No. 1001 published on 20 November 2020 provides for the circumstances under which a judicial officer may disqualify or refuse to disqualify himself from the conduct of the matter. The same reads thus: 9 (1) A judicial officer shall disqualify himself in any case in which that judicial officer: (a) believes he will be unable to adjudicate impartially. (b) believes that a reasonable, fair minded and informed person, would have a reasonable suspicion of conflict between a judicial officer’s personal 8 interest or that of a judicial officer’s immediate family and his judicial functions; (c) has a personal bias or prejudice concerning a party or personal knowledge or facts; (d) served as a lawyer in a matter in controversy or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter or the judicial officer or such lawyer has been a material witness in the matter; (2) Disqualification is not appropriate if: (a) the matter giving rise to the perception of a possibility of conflict is trifling or would not support a plausible argument in favour of disqualification; or (b) no other judicial officer can deal with the case or because of urgent circumstances, failure to act could lead to a miscarriage of justice; (c) upon disclosure of the ground(s) of intended recusal by the judicial officer, parties agree that the judicial officer may participate in the proceedings. The consent by the parties or their representatives shall be recorded and shall form part of the record of proceedings. The grounds for recusal were also restated by the Court of Appeal in the case of Isaac Mwamasika and Others vs. CRDB Bank Limited, Civil Revision No. 6 of 2026 CAT in which the apex court in its earlier on 9 decision in Laurean G. Rugaimukamu vs. Inspector General of Police & Another, CAT-Civil Appeal No. 13 of 1999, were quoted with approval. In the latter, principles for recusal were enumerated as quoted hereunder: An objection against a judge or magistrate can legitimately be raised in the following circumstances: One, if there is evidence of bad blood between the litigant and the judge concerned. Two, if the judge has close relationship with the adversary party or one of them. Three, if the judge or a member of his close family has an interest in the outcome of the litigation other than the administration of justice. A judge or a magistrate should not be asked to disqualify himself for flimsy or imaginary fears. (emphasize is mine) Now the issue is whether the appellant at the DLHT stated reasons which warranted the trial chairman disqualification. I have gone through the appellant filed letter which required the trial chairman together with assessors to disqualify themselves. At the hearing of the application his main argument was that on 19 February 2024 when he prayed the P.O. to be argued by way of written submission. The trial chairman asked why he did not make such prayers on 6 February 2024. He stated that such question was not supposed to be asked by the trial 10 chairman. This is a reason which convinced him to reject the trial chairman because he had no faith in him. Going through the proceedings of the trial court, I find that the complaint raised by the appellant is not reflected in the Proceedings of 19 February 2024. Nowhere, the records show that the trial chairman asked such question. However, if that complaint would be reflected in that proceeding still was not a reason or circumstance for the trial chairman to disqualify himself as already stated from the case cited above that a judge or a magistrate should not be asked to disqualify himself for fears. I find no reason to fault with decision of the DLHT. The appeal lack merit and is here by dismissed. No orders as to costs. Right to appeal is explained. DATED at MBEYA on this 30 day of August 2024. A. A. SINDA JUDGE 11