20150904 TZHC Mwanza2

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA LAND APPEAL NO 109 OF 2014 'i ... - .. .,4. · ·· " (From the Decision of the District Land and Housing Tribunal of Mara District at Mara in Land case No. 96 of 2014) NYAN KONI MUGAYA ... ............................................... .APPPELLANT VERSUS THE VEO OF BITARAGURU & 2 OTHERS ..................... RESPONDENT JUDGEMENT Ebrahim, J. This is an appeal from the ruling of District Land and Housing Tribunal for Mara at Musoma on Application No. 96 of 2012 delivered on ih Day of November, 2014. In that application the defendants raised a preliminary objection on points of law that the application is of res - judicata and that the appellant has no locus standi. After hearing the preliminary objection raised, the trial Chairman sustained the objection and dismissed the application for it being res - judicata and that the appellant has no locus since he obtained a letter of administration of the deceased estate in 2012 while his father died in 1990. 1 The brief facts of the case are that, the appellant filed an application no 96 of 2012 against the respondents claiming a seven (7) acres of Land situated at Bitaraguru Village, Bunda District which is alleged to have been falsely claimed by the respondents. Also that the 1st respondent is vicarious for she allocated the land illegally to the 2nd and 3rd respondents. The appellant raised six (6) grounds of appeal however the crux of the matter is that the trial tribunal chairman erred in law for ruling that the matter is res judicata; and that the appellant has no locus standi by virtue of his Probate Administration Appointment. He therefore prayed that the ruling of the DLHT be quashed and matter be heard denovo on merits. During the hearing of the appeal, both parties were unrepresented. The appellant praying to adopt his memorandum of appeal; submitted before the Court that he is the administrator of the estate of the late Mugaya Masisi and that DLHT erred by deciding that he is not an administrator of the estate of late Mugaya Masisi while he filed all the document in the case file. He stated further that he was appointed as an administrator of the estate on 10/08/2012 and filed application no 96/2012 on 5/10/2012. Therefore he has locus and pray for the case to be heard on merits. In reply, the first respondent prayed to adopt their reply to petition of appeal and stated that the disputed farms were allocated in 1974 during villagezation program and by then it was no man's land. The father of the appellant was present in those years and died in 1990. He has never had a claim on the land. In 2004, the appellant instituted a case to claim for that land. He claimed against six people. The case was decided in favour of 2 those six people. In 2011 the appellant appealed at DLHT- Musoma. The case was heard and the chairman visited locus quo. The DLHT decided that the allocation of 1974 was proper as it was not the farm of the appellant father. We therefore pray that, by the time the administrator of the estate filed a case he was already time barred. The administration of estate was filed after 30 years. Second respondent submitted before the court that his parents owned the land since 1974 until 2004 when the appellant and his brother filed a case. In that case it was decided that the appellant had no right to claim the disputed land as it was legally acquired by the parents of 2nd respondent in 1974 through villagezation program. In 2011, the appellant filled a case again at DLHT, Musoma. The DLHT visited locus quo and heard evidence of both sides and delivered judgment on 7/11/2014. What the appellant is saying is not true as his father was present and he continued to hold the same until he died. Therefore it is not true that the farm belongs to the appellant. The third respondent averred that she was allocated the farm in 1974 and started cultivating it. In 2011, she received a summons that she has been sued because of that farm at Musoma. The chairman had to visit locus quo. He went at a place that they do the farming and listened to the evidence from the elders of the village as to who are the owners of those farms. Finally decision was made in their favor which prompted the appellant to appeal to this court. In rejoinder, the appellant reiterated that he has never filed a case against the respondents. He filed another case in 2011 at Village Land 3 Council, then Ward Tribunal and the respondents were not involved. 3rd respondent encroached into the land for cultivating purposes only thus prayed to be given right to be heard. As I have already pointed out earlier that the trial Chairman gave his ruling on the basis that the application is res judicata and that the appellant has no locus standi. For the doctrine of res-judicata to succeed, five conditions must co- exist. These conditions are well spelt in the case of Yohana Hilarius Nyakibiri and Another V Lushoto Tea Company Limited, Civil Appeal No 90 of 2008, CAT (unreported). These conditions are: 1. The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; 2. The former suit must have been between the same parties or privies claiming under them; 3. In the former suit, parties must have litigated under the same title; 4. The court which decided the former suit must have been competent to try the subsequent suit; and 5. The matter in issue must have been heard and finally decided in the former suit. I have gone through the court records and noted that there was a suit that was instituted by the applicant's brother Wambura Mugaya and also appeal no 59 of 2012. Wambura Mugaya was claiming against Chacha Mairi and Christina Saimon, second and third respondents respectively and three others for his own piece of land whilst the appellant herein is claiming as an administrator of his father's estate. Again Appeal No 59/2012 that 4 emanated from the Ward Tribunal was between the appellant and one, Mugaya Mugosi is not now a party to this suit as they already settled the matter out of court with the appellant. Therefore, it cannot be said that the parties are the same. Also, it has not been established or evidenced that the disputed land is the same that was the subject matter of the referred cases above, as such it is evident that parties did not litigate under the same title. In the absence of the above mentioned conditions as stipulated in the case of Yohana (supra), one cannot say that the application at the District Land and Housing Tribunal was res judicata especially the fact that there was no proof of even a court judgment to ascertain that the matter was competently adjudicated. Thus, this ground of appeal of the appellant that the matter is not res judicata has merits. Another ground that formed the basis of dismissing the application of the appellant by the trial chairman is that the appellant has no locus standi as he obtained the letter of administration of the deceased estate 30 years after the death of his father. To my understanding, I do not think that the issue here is locus standi but rather that of time limitation. In the circumstances, I find that the trial Chairman misdirected himself by ruling that since the appellant was appointed as an administrator in 2012 then he ceases to have locus standi. Appointment of administrator has no time limitation. Thus the trial chairman applied the wrong principle of the law in dismissing the application. With the above analysis, I find that it will only be just if the case at the District Land and Housing Tribunal be heard on merits and rights of parties be determined. I therefore allow the appeal to the extent that I quash and 5 set aside the ruling of the trial District Land and Housing Tribunal and order that application No 96 of 2012 be heard denovo by a different chairman of competent jurisdiction. I further order that the hearing of this application be expedited as it is a long time case in the court's registry. Considering the circumstances of the case, I give no order as to costs, each party shall bear its own cost. R.A. Ebrahim JUDGE 04/09/2015 6