PETER UREMBO SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 24883 OF 2024 (Originating From Application No. 48 of 2024, Ubungo District Land and Housing Tribunal) PETER WILLIAM UREMBO (Administrator of the Estate of the Late Abdulrahaman Magembe Ngomani).......................... ...APPELLANT VERSUS JOSEPH DONAT KESSY............................................... 1$t RESPONDENT NEMES JOSEPH DONAT....................... .........2nd RESPONDENT JUDGMENT 22nd to 29th November, 2024 E.B. LUVANDA, J The Appellant named above is appealing against the decision of the Tribunal which ruled that Application No. 48 of 2024 was res judicata to Civil Case No. 335 of 1999 High Court Dar es Salaam. In Civil Case No. 335 of 1999 this Court declared the First and Second Respondents herein (Plaintiffs therein) as the lawful developer of Plot No. 419 and 420 Block B Sinza Dar es Salaam. In the petition of appeal, the Appellant grounded that: One, the Honorable Chairperson erred in law and fact to hold that Application No. 48 of 2024 is res- judicata', Two, the Honorable Chairperson erred in law and facts to hold that the Respondents mentioned herein above executed Civil Case No. 335 of 1999 properly hence the application is res-judicata‘, Three, the Honorable Chairperson i erred in law to disregard the fact that judgment in Civil Case No. 335 of 2005 un executed and had expired since May 2017. Mr. Abraham Hamza Senguji learned Counsel for Appellant argued the three grounds of appeal jointly. He submitted that having gone through the purported judgment in Civil Case No. 335 of 1999, they formed an opinion that it was not executed since May 2005. He submitted that the Respondents never applied for rectification as directed in the purported judgment, argued that is why the records both in the Ministry of Lands and Human Settlement judgment and the Ubungo Municipal Council shows that the property still belongs to the late Abdulrahaman Magembe Ngomani. He submitted that the life span of the judgment is twelve years, citing the Law of Limitation Act (sic, Cap 89 R.E. 2002). He submitted that the judgment in disputes was delivered on 10/06/2005 which is nineteen years ago. He submitted that the Respondents are time barred, as the judgment was delivered nineteen years ago and was never- executed as directed by the Court. He submitted that the Respondents were required to apply for rectification within twelve years, argued a thing which they did not apply. He submitted that the administrator of the estate of the late Abdulrahaman Magembe Ngomani rightly included it as the properties of deceased. He 2 submitted further that the unexhausted improvement made on Plots No. 419 and 420 Block "B"Sinza Area were made by Abdulrahaman Magembe Ngomani and not anybody else. He submitted that the Respondents did not make any un exhausted improvements on the disputed plots. He submitted that the doctrine of res-judcata is not applicable at all as the case was not executed and owner of the plots in the Registers of the responsible Ministry is Abdulrahaman Magembe Ngomani. In reply, Mr. Deogratias John Lyimo Kiritta learned Senior Counsel for Respondents, submitted that after a careful perusal of the Appellant's submission in chief, one point is clear that the Appellant does not dispute that the claim on the ownership of the properties on Plots No. 419 and 420, Block "B", Sinza Area, Kinondoni Municipality (now Ubungo Municipality) was subject of the hearing and final determination in the Civil Case No. 335 of 1999, where judgment and decree was granted declaring the Respondents the lawful owners thereof, and no appeal or revision has been preferred. He submitted that in the said judgment and decree, the land allocating authority was directed to rectify their registry and register the Respondents as the lawful owners thereof. He submitted further, that Appellant has not disputed the facts that the late Abdulrahman Magembe Ngomani was the party in the High Court Case through 3 another Administrator. He submitted that change of an administrator of the estate does not change the status of the deceased in so far as the suit property is concerned. He submitted that, the Appellant has raised factual matters which require evidence in his submission, arguing such factual issues raised include execution of the judgment in the Civil Case No. 335 of 1999 by rectification of the ownership of the suit plots, perusal from the land registry, construction of the houses on the Plots No. 419 and 420 purportedly made by the late Abdurahman Magembe Ngomani and allegations that the judgment has expired under the Law of Limitation Act. He submitted that the facts submitted by the Appellant were matters of facts which could only form part of the evidence during the hearing of the application on merits and not in arguing the preliminary objection raised since the preliminary objection deals with matters of laws only, to wit, whether the Application No. 48 of 2024 was res judicata in view of the judgment and decree of the High Court in the Civil Case No. 335 of 1999. He submitted that the Appellant reference to the provision of the Law of Limitation Act, is misplaced, for the explanation that the provision referred to above provides for a party to open a suit based on the judgment. He submitted that therefore that, the limitation works against the Appellant who has filed the 4 Application contrary to the judgment and decree of the High Court in the Civil Case No 335 of 1999. He submitted that the principle of res judicata applies to the case at hand as the High Court case was heard and determined to its finality by this Court in Civil Case No. 335 of 1999 regardless of its execution status. He submitted that the trial Chairman did not overlook the facts raised by the Appellant but correctly analyzed their impact in in relation to the former suit. He cited Michael Obiero (Administrator of the Estate of The Late Obiero Okinyi) vs Ager Ondiek and Another, Civil Appeal No. 422 OF 2022CAT, at page 10 for a proposition that it emphasized on pre conditions for the principle of resjudicata to succeed. He submitted that the pre conditions, which reflects the provisions of section 9 of the Civil Procedure Code, Cap. 33 R.E 2019, they all fit in the case at hand. He submitted that the matters in issue in the former suit Civil Case no 335 of 1999 where plots No. 419 and 420 as well as 421 and 422 which are the same matters which were in dispute in Application no 48 of 2024. He submitted that, Civil Case No 335 of 1999 was between Joseph Donati Kessy and Nemes Joseph Donati as Plaintiffs vs Juma Magembe Ngomani as administrator of the estates of the late Abdulrahman Magembe Ngomani, as the Defendant and Application No 48 of 2024 was between Peter William Urembo as administrator of the 5 estates of Abdulrahman Magembe Ngomani vs Joseph Donati Kessy and Nemes Joseph Donati, arguing that the parties in both cases are one and the same and the Appellant herein is the administrator of the estate as it was in the former suit of the same deceased, who is Abdulrahman Magembe Ngomani. He submitted that the title in dispute is same which is plot No. 419 and 420 Block B, Sinza. He submitted that the suit was heard and determined to its finality by the Court of competent jurisdiction that is the High Court of the United Republic of Tanzania and the judgement and decree was issued. He submitted that since the case was heard and determined by the Court of competent jurisdiction to its finality, the Tribunal was barred from entertaining the same in the Application No. 48 of 2024 as correctly held by the Chairman of the Tribunal in his ruling on the preliminary objection raised the subject of the appeal. He cited Sabuni Detergents Limited and Another vs Haroon Daud Abdulla and Two Others, Commercial Case No 46 of 2006, HC. Also, cited Maimuna Alfan Salehe And Others vs Chilwa Lubawa Kiliaki, Land Case No. 235 Of 2021, HC. He submitted that, there must be an end to litigation whereby courts are precluded to try any suit or issue in which the matter has been directly and substantially in issue in a former suit between same parties has been 6 determined to its finality. He submitted that the litigation must come to an end and courts cannot entertain endless litigation. That was the end of submission for both parties. To my view, the learned Counsel for Appellant is missing a point, in that, he was arguing on the first limb as if there had been an application for execution mounted by the Respondent in respect of judgment and decree in Civil Case No 335 of 1999. It is when the question of time limit to the execution of decree could come in. Regard that execution of court decree is limited by the provision of item 20 Part III to the Schedule of Law of Limitation Act, Cap 89 R.E. 2002, where a period of limitation to enforce a judgment, decree or order of any court where the period of limitation is not provided for in this Act or any other written law, is twelve years. Also, the provision of section 39(1) Cap 33 (supra), which provide that, 'Where an application to execute a decree, not being a decree granting an injunction, has been made no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from- (a) the date of the decree sought to be executed; or (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of 7 the default in making the payment or delivery in respect of which the applicant seeks to execute the decree' Herein, execution of judgment and decree in Civil Case No 335 of 1999, was not among the question which the Appellant sued. Nowhere the Appellant pleaded a fact that execution of decree in Civil Case No. 335 of 1999 is time barred or was not executed. What the Appellant pleaded at the Tribunal was a claim that the Appellant be declared lawful owner of the suit plots and a declaration that the Respondents are unlawful occupants of the suit plots. The later reliefs connote that the Respondents are in actual occupation of the suit plots. Meaning that the question of execution by way of physical handing over, is irrelevant. For the alleged verdict or obiter at page four, second paragraph from bottom of a judgment in Civil Case No. 335 of 1999, where this Court ordered that, 7 therefore direct the Commissioner for Lands and the Registrar of Tities to cause rectification in the records by entering the names of the Plaintiffs on the Plots they were shown and lawfully developed ie. Plot No. 419 and 420 instead of Plot 421 and 422' Interesting, the said passage above does not form part of the extracted decree, which fact implore that it is execution is a mere administrative work or task than judicial process. In a sense that it is upon the beneficiary of the decree or 8 judgment to cause the same to be lodged to the Commissioner for Lands or Registrar of Titles, for rectification to reflect the above passage. The two provisions cited above, to wit under Cap 89 (supra) and Cap 33 (supra), limit or set time limit for execution of court decree vide a fiat of judicial process. Therefore, the learned Counsel for Appellant is advised to reserve his argumentation on this point awaiting till when the decree holders will mount an application for execution of decree in Civil Case No. 335 of 1999 delivered on 10/06/2005 (nineteen years back), if argued there, will be valid. Section 99(1) of the Land Registration Act, Cap 334 R.E. 2019, with marginal notes rectification of land register, provides, 'Subject to any express provisions of this Act, the land register may be rectified pursuant to an order of the High Court or by the Registrar, subject to an appeal to the High Court, in any of the following cases- (a) where the High Court has decided that any person is entitled to any estate or interest in any registered land and as a consequence of such decision the High Court is of opinion that a rectification of the land register is required, and makes an order to that effect7 Unfortunate, therein, no limitation is set out. Indeed, as hinted above, the process therein is more administrative and not judicial. Again, it is upon the beneficiary of the court judgment, decree or order of this court to make a 9 submission to the Registrar of Titles for the inscription of any memorial in the land register to reflect what was adjudged by this Court. Now, as pointed out by learned Counsel for Respondents, that the Appellant does not dispute that the claim on the ownership of the properties on Plots No. 419 and 420, Block "B", Sinza Area, Kinondoni Municipality (now Ubungo Municipality) was subject of the hearing and final determination in the Civil Case No. 335 of 1999, where judgment and decree was granted declaring the Respondents the lawful owners thereof, and no appeal or revision has been preferred. And further, that Appellant has not disputed the facts that the late Abdulrahman Magembe Ngomani was the party in the High Court Case through another Administrator. In that regard, I go along the argument of the learned Counsel for Respondents that that change of an administrator of the estate does not change the status of the deceased in so far as the suit property is concerned. Regard being irrespective of the fact that the Appellant was not a party to the proceedings of Civil Case No. 335 of 1999, still he is caught under constructive res-judicata. In the case of Sabuni Detergents Limited (supra) at page 8 this Court quoted Indian case of Rajendra Kumar Versus Kelyan Air 2000 where it was held that; io 'The doctrine of res judicata or constructive res judicata pre dominantly is a principle ofequity, good conscience andjustice. It would neither be equitable nor in accordance with the principle of natural justice that the issue concluded earlier ought to be permitted to be raised later in a different casd 1 herefore, a plea of res-judicataentered by the Tribunal was well grounded and founded. There is nothing new which can change that conclusion. As alluded by the learned Counsel for Respondent, the ideal of this doctrine is that the litigation must come to an end and courts cannot entertain endless litigation. In Maimuna Alfan Salehe (supra) at page 14 this Court quoted the case of Paniel Lotha vs Tanaki & Others [2003] TLR 312, the court held that: - 'The object of the Doctrine of res judicata is to bar the multiplicity ofsuits and guarantee finality to litigation. It makes a conclusive a finaljudgment between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit' Also in the case of Zuberi Paul Msangi vs Mary Machu, Civil Appeal No. 316 of 2019, CAT, the apex Court ruled, 'Today, it is generally understood among the legal fraternity, that the doctrine of res judicata is based upon two other maxims ofRoman law. One, that, interest reipublicae ut sit finis iitum, that is, it concerns the State that there should be an end to law suits, and two, that, nemo debet bis vexari pro una et ii aedem causa, that is, no man should be vexed twice over for the same cause. Otherwise, no one can gainsay that, when the doctrine is applicable, if it is not given full effect, an abuse of the court process takes place' In that regard, the decision of the Tribunal is upheld. The appeal is dismissed on its entirety. The Appellant is ordered to foot all costs 12