Omary Melitano Mayala v Athuman Mohamed MzeeThe Administrator and Legal Representative of the Late Mohamed Mzee and Another 2024 TZHC 7925 10 September 2024 1

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT IJC MOROGORO LAND APPEAL NO- 6337 OF 2024 (Originating from the decision of the District Land and Housing Tribunal for Morogoro at Morogoro in Land Application No 71 of 2023). OMARY MELITANO MAYALA .................................... APPELLANT VERSUS ATHUMAN MOHAMED MZEE.......................... 1st RESPONDENT (Administrator and Legal Representative of the Late Mohamed Mzee) NASIBU MELITAMO MAYALA......................... 2nd RESPONDENT (the Administrator of the Estate of the late SALIMA RAJ ABU SALUMU) JUDGEMENT 10th September, 2024 MANSOOR, J In this appeal, while the Appeal was already heard by written submissions and before the Judgement, the Court was informed that the 1st respondent Mohamed Mzee had passed away on 31st May, 2024. The Court therefore adjourned the proceedings giving the 1st respondent's relatives a chance to sort out the estate of the 1st respondent. After several adjournments, on 10th September, 2024, the Court was availed with the Letters of Administration showing that Athumani Mohamed P^ge 1 of 22 Mzee was appointed the Administrator of the Estate of the Late Mohamed Mzee through Probate Cause No 7 of 2024 by the Mikese Primary Court. Consequently, Athumani Mohamed Mzee, was joined in the proceedings as the Administrator and Legal Representative of the Estate of the Late Mohamed Mzee, who is the 2nd respondent in the Appeal, and the proceedings continued in the name of the Legal Representative. Now, to the merits of the appeal, the appeal arises from the decision of the. District Land and Housing Tribunal for Morogoro at Morogoro, herein referred as "the DLHT" in respect of Land Application No.71 of 2023. The DLHT dismissed the appellant's claim in which he prayed to be declared the lawful owner of the parcel of land measuring 30.80 meters' length to 13.80 meters' width located at Mikese Ward within Morogoro District, herein referred as "the suit property". Before the District Land and Housing Tribunal, the appellant herein claimed that the Respondent herein had trespassed into his (arid and demolished one of the wall of his fence. The Appellant and the Respondent are neighbours both having the land located adjacent to each other. It was alleged that, the respondent encroached a portion of the appellant's land by demolishing one of the wall of his fence, he did not however state how much of his land was encroached by the boundary wall. The land in dispute is at Mikese in Morogoro Region. Before the DHLT, the 1st respondent claimed that he was executing the lawful decree of the Court, and that he demolished the wall erected by the appellant in the disputed land because he was executing the decree of the District Land and Housing Tribunal for Morogoro in Land Appeal No.109 of 2012 originating from the decision of Mikese Ward Tribunal via Application No. BLK/Mikese/2/2012 in the case between the 1st Respondent and one the late Salma Rajabu (the appellant's mother). From his testimony recorded at the DLHT, the appellant told the trial Tribunal that he was not aware of the execution proceedings of Land Appeal No. 109 of 2012 as he was not a party to the case. He simply stated that he was given the land in dispute by his aunt (mama mdogo) in. 2009 and had explained the boundaries and his neighbours. On conclusion of the trial, the DHLT decided in favour of the 1st Respondent holding that the ownership of the disputed land was conclusively determined through Land Appeal No. 109/2012 as the alleged suit premises in the Application was the same suit premises as Page 3 of 22 that of the Application No. BLK/Mikese/2/2012 at Mikese Ward Tribunal and in the Land Appeal No. 109/2012. Disgruntled with the decision of the District Land and Housing for Morogoro in Land Application No. 71 of 2023, the appellant who was the applicant in the said application has preferred the present appeal urging this court to overturn the decision of the trial tribunal based on five grounds of appeal itemized hereunder; 1. That, the Trial District Tribunal erred in law and in fact in deciding the matter.in favour of the 1st Respondent against the weight of evidence; 2. That, the Trial District Tribunal grossly erred in law and facts in holding that, the alleged suit premise in the Mikese Ward Tribunal; Application No. BLK/Mikese/2/2012 and in the Land Appeal No 109/2012 to be the same suit premise as that of the Land Application No 71 of 2023 of the Trial District Tribunal < filed by the Appellant. 3. That, the Trial District Tribunal erred in law and in fact in misinterpreting and misapplying Section 110(1) and (2) of the Tanzania Evidence Act CAP 6 R.E 2022 and Exhibit "D2". Page 4 of 22 4. That, the Trial District Land and Housing Tribunal erred in law and in fact in misinterpreting and misapplying exhibit "D3" and holding that, the boundaries were marked by beacons. 5. THAT, the Trial District Land Tribunal erred in law and facts in condemning the Appellant to costs. By the order of this court dated 23/05/2024, the matter was canvassed by way of written submissions. While advocate B.L Tarimo drew and filed the appellant's submission in chief, the first respondent drew and filed the reply submission on his own. On his part, the second respondent who was personally present when the court made its scheduling orders didn't file his reply submissions to the appellant's submissions, in that regard the matter proceeded exparte against him. Before determining the appeal, I wish to comment on Mr. Tarimo's concern raised through his letter dated 26/06/2024 to the Deputy Registrar in which he was complaining of not being served with the respondents' reply submission hence could not file his rejoinder submission. While I agree that from the copy of the reply submission physically submitted to this court there is nothing indicating that the appellant got served with the said submission, but before the Judgement Page 5 of 22 was prepared, the matter was scheduled for Mention several times but neither the appellant nor Advocate Tarimo entered appearance to address the court about the failure of the respondent serving them with the reply submissions. Had they appeared in court, they would have been granted an extension to file Reply submissions. On that basis, it is apparently clear that the appellant waived his right to rejoinder. On the merits of the appeal and in addressing his appeal, the appellant, through Advocate Tarimo, combined and argued together the first and the second grounds of appeal, while he separately argued the third, fourth and fifth grounds. As regards to the first and second grounds, the appellant's learned counsel faulted the trial tribunal for holding that the alleged suit premises were the same piece of land adjudicated in the Mikese Ward Tribunal in Application No. BLK/Mikese/2/2012 and in the Land Appeal No. 109/2012. To expound his substantiation, Advocate Tarimo referred to page 5 of the typed copy of Judgment of the trial tribunal and contended that the Trial District Tribunal grossly erred in what he termed to be re-allocating the land in dispute. He highlighted that, the Page 6 of 22 boundaries of the suit land in the pleadings and in the testimony by the Applicant, PW1, on page three (3) of the typed copy of judgment reads; "...inapakana na TANROAD kusini, Kaskazini; Mama Salma Rajabu, aliyemjengea nyumba, Magharibi, Ramadhani Rajab Mnadi, Mjomba wake, Mashariki, eneo ambalo Babu yake aitwaye Mnadi Rajabu Kauli, alitoa kwa kijiji cha Fulwe, Mikese, kwa ajili ya Bomba la Maji." He contended that, the above testimony was affirmed with that of SAID SELEMANI KATEMBO, PW2, who told the Tribunal as reflected on the third paragraph of page three (3) of the typed copy of Judgment that; v : " .... eneo la Mohamed Mzee, [the 1st Respondent] alijenga ukuta wa mpaka upande wa eneo la Salma, na kwamba kulikuwa na Mradi wa bomba la maji la serikali na kwamba katika ujenzi huo wa ukuta, koki ya bomba ikawa ndani ya eneo lililojengwa ukuta na - Mjibu Maombi namba Moja. PW2 alieleza Baraza kwamba Saima Rajabu mwaka 2012 alikuja kulalamika ujenzi huo. PW2 alieleza Barazani kwamba, Salma Rajab alimueleza kwamba Baba yake alitoa eneo lile kwa ajili ya koki ya Maji." Page 7 of 22 Amplifying on the third ground, the learned advocate told the Court that in Mikese Ward Tribunal, Application No 2 of 2012, and its judgment dated 20/07/2012; the location, address or size of the suit premises were not disclosed and thus it is difficult to read the Judgment, Exhibit "D2" and the pleadings in the present application to relate and conclude that the suit premise is the same. According to him, it is most certain that the suit premises in Application No 71 of 2023 is not the same as that of Application No. BLK/Mikese/2/2012 of Mikese Ward Tribunal in the Land Appeal No 109/2012. He referred the court to paragraph 6 of the Respondent's Written Statement of Defence in which the first Respondent alleged’ to have owned the suit land by purchasing it from Ramadhani Rajabu in the year 2000. The learned counsel informed the court that, at the trial tribunal the first respondent tendered the purchase agreement that was admitted as Exhibit D l, however he said, neither the description of location nor the size and address of the said land was disclosed in the sale agreement. The Counsel reminded the court of the position of law as enunciated in the cases of JONATHAN KALAZE v. TANZANIA BREWERIES LIMITED, and the case of JAMES FUNKE v. AG [2004] TLR 161, that parties are bound by their Pleadings. Page 8 of 22 Rounding off his submission on this ground, the Learned Counsel cited Section 110 of the Tanzania Evidence Act, CAP 6 [R.E.2019], which requires for proof in civil matters to be that of balance of probability and submitted that trial Tribunal grossly erred in deciding the matter in favour of the Respondent against the weight of evidence. In relation to the fourth ground, the Counsel attacked Exhibit D3, the Consent Settlement Order for not disclosing what was consented to and agreed upon by the parties therein. He lamented that Exhibit D3 is nothing but a fictitious document with no probative value in evidence and that the same is not an exhibit to be relied upon. He went on; submitting that the location, address, size of the said "disputed land" to be divided upon, is not defined or disclosed therein and wondered how could the boundaries be fixed and marked by "beacons" on the direction that was not disclosed in the Consent Settlement Order. As regards to the fifth ground, it was his contention that had the trial tribunal considered what the appellant submitted herein above he would not have condemned the Appellant to costs. Page 9 of 22 In the end, he prayed that this Appeal be granted as prayed, the decision of the trial District Land and Housing Tribunal be quashed and its subsequent orders be set aside. He further pressed for the first Respondent to be declared a trespasser and the Appellant be declared the legal owner of the suit premises and costs of this Appeal and the tribunal below be paid by the first Respondent. Responding to the appellant's submission in chief, the first respondent replied to the same in the manner presented by the appellant. As regards to the first and second grounds, he supported the trial tribunal's finding that, the alleged suit premise in the Application No BLK/Mikese/2/2012 of Mikese Ward Tribunal and in the Land Appeal No. 109/2012 to be the same suit premise as that of the Land Application No. 71 of 2023 of the Trial District Tribunal filed by the Appellant. He elaborated that, the late Salma Rajabu filed the suit against Mzee Mohamed claiming for the same reliefs as in the present case. He said, in the said suit there is no place where it is stated that the late Salma Rajabu allocated the disputed land to anyone else or any evidence tendered/provided to prove that the late Salma Rajabu has other lands in Fulwe Mikese apart from the Suitland adjudicated by the Mikese Ward Page 10 of 22 Tribunal in Application no. BLK/Mikese/2/2012 and in the Compromise Decree recorded in Land Appeal no. 109/2012. Submitting further, the learned advocate cited the case of Murugan v. The Registrar of the Co-operatives Societies and others (2013) and contended that the judgment delivered by Mikese Ward Tribunal was a judgment in rem which binds the Appellant until it is set aside by an appellate court because of the principle that a judgment is conclusive against everybody. On the third ground, it was the respondent's submission that the evidence taken by the trial court was properly evaluated and well assessed resulting into a fair and just decision. To fortify his argument, the respondent cited the case of BRIESTONE PTE LTD VERSUS SMITH AND ASSOCIATES FAR EAST LTD (2007) 45L (R) 855 and that of STANDARD CHARTERED BANK (T) LTD versus SAMWEL NYALLA NGHUNI CIVIL APPEAL NO. 45 OF 2020 (CAT) and pressed that the first respondent has discharged his burden of proof on the standard required by the law. Page 11 of 22 As for the fourth ground, the respondent elucidated that Exhibit 'D3' tendered was all about what was consented between Salma Rajabu and Mzee Mohamed and that after the Consent Settlement Order all parties marked boundaries by beacons. He informed the court that since the year 2012 no dispute or conflicts arose between the late Salma Rajabu and Mzee Mohamed until in the year 2023 when the appellant filed the Application to the Tribunal meaning that the consent settlement order remained unchallenged for more than ten years. In respect of the fifth ground, the respondent made a reference to the holding in the case of DB Shapriya & Company Limited v. Regional Manager, Tanroads Lindi, Civil Reference No 01 of 2018 at page 7- 8 and averred that the trial tribunal was correct to order cost as one of discretional powers which it has. From the afore stated reasons the respondent prayed the appeal to be dismissed it's entirely with cost. I have carefully examined the appellant's grounds of the appeal, parties’ submissions as well as the lower tribunals records. The crucial issue calling for my deliberation is whether the land in dispute was the same piece of land adjudicated by the Mikese Ward Tribunal in Application no. BLK/Mikese/2/2012, and the same land in which the Compromise Decree was extracted in Land Appeal No. 109 of 2012. Having scanned through the petition of appeal, it is apparent that in the first four grounds presented therein, the appellant's complaint is centred on the evaluation of evidence by the trial tribunal and the costs condemned to the appellant As such, I will jointly determine the first up to fourth grounds on the aspect of whether the Chairperson of the Trial Tribunal failed in the evaluation of evidence and I will separately determine the fifth ground of appeal. However, for the purpose of convenience, I find it wise to first and foremost resolve the appellant's main grievance that the trial tribunal erroneously concluded that the land in dispute before it was the same as that land determined by Mikese Ward Tribunal in Application No. BLK/Mikese/2/2012 and in the Compromise Decree in Land Appeal no. 109/2012. I have dispassionately gone through the records available in the present appeal. Admittedly, as rightly submitted by the learned counsel for the Page 13 of 22 appellant, that in 2012, the Late Salma Rajabu filed a claim at the Mikese Ward Tribunal, Claim No. 2 of 2012 which was decided fully on merits by a Competent Tribunal. The respondent in that case was the 1st respondent herein namely Mohamed Mzee. The claim is similar as the claim in the case filed by the appellant herein against the respondents herein. The Late Salma Rajabu claimed before the Mikese Ward Tribunal that Mohamed Mzee had trespassed into part of her land. That the 1st respondent, Mohamed Mzee, had built a boundary wall which encroached some of her land. The Late Salma Rajabu had described the land and as the land was un-surveyed she described the neighbours surrounding her. In fact, the dispute was not about ownership of the land as such, as each party had her/his land neighbouring each other. The claim by the Late Salma Rajabu was that Mohamed Mzee encroached some part of her land. The Mikese Ward Tribunal determined the case, and decided, that Mohamed Mzee did not encroach the land of the Late Salma Rajabu. The decision of the Mikese Ward Tribunal was delivered on 20 July, 2012, and exhibited before the Trial Tribunal as Exh D3. Page 14 of 22 The records also show that the Late Salma Rajabu was aggrieved and filed an Appeal No. 109 of 2012 before the District Land and Housing Tribunal, fortunately, during the appeal parties decided to resolve their differences amicably, thus, they entered into a Compromise. The Comprise Decree was entered on 22/05/2013 before the District Land and Housing Tribunal for Morogoro, in which it was agreed that the land in dispute be divided equally between the parties to a dispute, and that the agreement marked full and final settlement of any claim between the parties. This was the Compromise Decree of the Tribunal and bound everybody. Attached to the Decree was the Sketch Map in which the Size, location, and description of the Disputed Land was given. It was a Sketch Plan of the Land measuring 340.53 Square Meters located at Fulwe Mikese, that the land was bordering Morogoro- Dar es salaam Road on the South. It appears that the Late Salma Rajabu did not want to peacefully and voluntarily respect the Consent Decree, and this prompted Mohamed Mzee to apply for execution in 2022, and Ivenico Auction Mart and Court Brokers was appointed to execute the Decree. The Decree was accordingly executed. Page 15 of 22 It also appears that the Late Salma Rajabu transferred the ownership of the land to Omary Melitano Mayala in 2009 in total disregard of the orders of the Mikese Tribunal, and in total disregard of the Compromise Decree recorded by the District Land and Housing Tribunal. Salma Rajabu also did not disclose to the Tribunal that she had already transferred the land in the name of the appellant, and in 2023 when the Tribunal was executing the Decree, the same land that was owned by the Late Salma Rajabu was found to be in possession of Omary Melitano Mayala, the appellant herein. Omary Melitano Mayala, in resisting the execution decided to file case No. 71 of 2023 claiming to be declared the owner of the land; he described the land as a parcel of land measuring 30.80 meters' length to 13.80 meters wide located at Mikese Ward - Morogoro, and that he was allocated this land by the Late Salma Rajabu in 2009. He also did not give the proper description of the land. He simply gave the measurements. Since the land was un-surveyed land he ought to have given proper measurement of the land he claims to be declared the owner. To cure this, the District Land Housing Tribunal visited the locus in quo and realised that the disputed land is the same land already adjudicated by the Mikese Ward Tribunal in Application No. BLK/Mikese/2/2022, and that parties to the dispute had entered into a Compromise before the District Land and Housing Tribunal in 2013. In Page 16 of 22 any case, the 1st respondent is in ownership of the Residential Licence No. MGD/LD/FUL/01 dated 2010 which fully described the size, measurements and location of his land. Besides, in 2013, when the late Salma Rajabu and the 1st respondent herein entered into a Settlement, they agreed to insert beacons, and those beacons becomes the boundaries between the land of the 1st respondent, and that which was formerly owned by the Late Salma Rajabu, which is the same land now owned by Omary Meltano Mayala. Parties must strictly respect the court decisions otherwise we will have chaos and endless litigations. A plea of res judicata can be given effect, if the following conditions are proved- (1) that the litigating parties must be the same; (2) that the subject-matter of the suit also must be; identical; (3) that the matter must be finally decided between the parties; and (4) that the suit must be decided by a court of competent jurisdiction. In the instant case according to the appellant the identity of the subject- matter in the present suit is quite different from the one which was adjudicated upon in the suits which formed the basis of the previous litigation. In my opinion the best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. This was correctly done by the Trial Tribunal. It did not determine the issue of Res Judicata as the point of law but after it has heard the case fully and on merits. As explained herein above, the suit decided by the Mikese Ward tribunal was over a piece of land owned by the Late Salma Rajabu, and that the same Salma Rajabu entered into a Compromise Agreement with Mohamed Mzee in 2013 before1the District Land and Housing Tribunal. The Decree was extracted and it was capable of execution. The land in disputed was not only visited to determine its location and size and boundaries, the sketch plan was also drawn in which the land was clearly described, the beacons found were the same beacons inserted in 2013, after a Compromise was entered and recorded to form the Decree of the Tribunal. When the subsequent suit was filed, the Tribunal, again visited the locus in quo, and determined that it was the same piece of land that was adjudicated with by the Late Salma Rajabu. Page 18 of 22 There was no proof that the Late Salma Rajabu was having a different piece of land in Fulwe Mikese apart from the land in dispute. It is, therefore, clear that the suit brought by the Late Salma Rajabu in 2012 before the Mikese Ward Tribunal and the Compromise Decree granted by the District Land and Housing Tribunal confirming the decision of the Ward Tribunal in the appeal was on the land that was the subject matter in the subsequent suit filed by the appellant herein and these undoubtedly operates as res judicata. Not being satisfied with the judgment of the Mikese Ward Tribunal and its subsequent orders issued during the appeal, including the Compromise Decree, the appellant herein emerged as the owner of the land which he did not describe, and filed another suit being Land Application No. 71 of 2023 in the District Land and Housing Tribunal for Morogoro for a declaration that the decree in the previous suit was not binding on him and for a declaration that he is the lawful owner of the Suitland located in Mikese measuring 13.80 meters wide, and 30.80 meters long. The District Tribunal by his judgment dated November 15.02.2024 dismissed the appellant's suit and held that the judgment and decree passed by the Mikese Ward Tribunal in 2012 Page 19 of 22 and the Compromise Decree issued by the District Land and Housing Tribunal in 2013 between the 1st respondent herein and the Late Salma Rajabu was binding on the appellant since the land adjudicated in the previous suits is the same land as in the present suit. Instead of obeying the decree of the Tribunal in the previous suit which was issued since 2012 the appellant seem to have made up his mind to obstruct the execution of the decree by filing the fresh suit at the District Land and Housing Tribunal claiming for ownership of the same land which was already determined by the competent Tribunals in the previous suits. Clearly, as correctly held by the District Land and Housing Tribunal in Land Application No. 71 of 2023 in which it was clearly observed that the appellant was trying to circumvent the effect of the lower Tribunal's Decree and the Compromise Decree issued by itself in the previous suit which could not be allowed, the Court held that the previous judgments operated as res judicata. I cannot fault and reverse the decision of the District Land and Housing Tribunal as it was correctly given. Consequently, grounds No. 1, 2,3 and 4 are dismissed for they are unmeritorious. Page 20 of 22 As to the issue that the appellant was wrongly condemned to the costs of the suit. I wish to state here that awarding the cost is in entirely in the discretion of the court. That was the position in the case of DB Sharpriya & Company Limited vs The Regional manager, TANROADS Lindi, Civil Reference No.l Of 2018, CAT [Unreported], where the Court underlined: " ... it is common cause that costs of, and incidental to, all civil actions are awarded in the discretion of the C o u rt... In exercise of its discretion to award costs, the Court is generally enjoined to award costs to the successful party on the basis of the principle that "costs follow the event." Nonetheless, it is also trite that the Court may withhold costs to a successful party on any justifiable ground, which may include that party's misconduct." In the present appeal, guided by the foregoing position of the law, since it was the respondent who had won the case against the appellant, the DLHT was right in awarding the costs of the suit to him. The fifth ground as well fails. On the basis of the above observation, this appeal is dismissed with costs. The decision of the District Land and Housing Tribunal for Page 21 of 22 Morogoro at Morogoro in Land Application No.71 of 2023 is hereby confirmed. The 1st respondent is declared as the lawful owner of the disputed property and that the appellant is bound by the decisions given / , by the Mikese Ward Tribunal in Suit No, 2 2012 and the Compromise Decree issued by the District Land and Housing Tribunal in Land Appeal No. 109/2022. Appeal dismissed with costs. DATED AND DELIVERED AT MOROGORO THIS 10th DAY OF SEPTEMBER, 2024. Page 22 of 22