rahma ally mjie vs omary shamte ngweya 2021 tzhclandd 114 24 march 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 265 OF 2019 (Arising from decision ofTemeke District Land and Housing Tribunal in Land Application No. 25 o f 2017 dated on 25/10/2019 by R. L. Chenya Chairman) RAHMA ALLY MJIE.................................................... .APPELLANT VERSUS OMARY SHAMTE NGWEYA....................................... RESPONDENT JUDGMENT ON APPEAL. S.M. MAGHIMBL 3: The appellant herein has field a memorandum of appeal challenging the decision of the District land and Housing Tribunal for Temeke ("The Tribunal") by honorable R.L. Chenya, Chairman dated 25th October 2019, in Application No. 25/2017 ("The Application"). In her memorandum of appeal, she has lodged three grounds of appeal as follows 1. That, the chairman erred in law and facts to determine the matter in favor of the respondent without consider that the decision of the trial Tribunal for Mianzini declared the appellant lawful owner of the suit property of which has never challenged by respondent. 2. That the trial chairman in law and facts for failure to consider that the Appellant demolished the house erected unlawfully in the suit property to fulfill the execution order of the ward Tribunal of which was granted by the Temeke District land and Housing Tribunal. 3. That the trial chairman erred in law and facts to order the Appellant to pay the Respondent purchasing price of Tshs. 750,000.00 and compensation of Tshs 5, 000.00(five million Tanzania shillings) for demolition house without weigh out the evidence oof the Appellant. The appellant's prayer were that: 1. The appeal be allowed. 2. Quashing and setting aside the decision of the tribunal. 3. Declaration that the appellant is the lawful owner of the suitland. 4. Costs of this appeal. 5. Any other relief that the court deems fit and just to grant. On the 15/07/2020, I ordered the disposal of this appeal to be by way of written submissions. The appellant's submissions were drawn and filed by Mr. David Ntonge, learned advocate while the respondent was unrepresented and appeared in person. On record also, both parties have lodged their respective submissions accordingly. Before venturing into the merits or otherwise of this appeal, brief background of the dispute is narrated. Sometimes in the year 2007, one Salum Mahege sold the disputed land to the appellant herein. Allegedly, the purchase price was not finalized. Subsequent in the year 2008, the same Salim Mahege sold the disputed land to one Sharifa Salumu Mpendu who was the 1st respondent at the Tribunal. Then the said Sharifa Mpendu also sold the same suitland to the respondent herein who was the applicant at the Tribunal, he constructed a house in the suitland. In the year 2014, the appellant then sold the land to one Omary Mchonje who was the 2nd respondent at the Tribunal. A dispute then arose between the appellant herein and the said Salum Mahege, after the appellant discovered that there was erection of the building at the disputed land while the respondent, Salumu Ally Mahenge denied to have sold the disputed land to anybody and he maintained that the disputed land was still belonging to him. The Ward Tribunal then issued a stop order restraining any development to be carried on the disputed land pending determination of the matter referred at the Ward Tribual and registered as Ward TMC/CHR/BAR/MAD/A.3/43/010. The dispute was decided in favor of the appellant herein, the said Salim Mahege unsuccessfully appealed to the District Land and Housing Tribunal for Temeke Vide Land Appeal No. 94/2011 and a subsequent appeal to this court vide Misc. Land Case Appeal No. 85/2012. The appellant herein was declared the lawful owner of the suit premises. Subsequent to her victory, she sold the land to the said Omary Mchonje in 2014. In due course, the respondent lodged the application at the Tribunal which is a subject of this appeal, on allegation that he was the lawful owner of the suitland and that his house was demolished. The Application was decided in favor of the respondent hence this appeal on the aforementioned grounds. While arguing the appeal, Mr. Ntonge's submissions were on each ground of appeal separately. The first ground of appeal is that the chairman erred in law and facts to determine the matter in favour of the respondent without considering that the decision of the trial tribunal for mianzini declared the appellant lawful owner of the suit property of which has never challenged by respondent. Mr. Ntonge submitted that the appellant was declared the lawful owner of the disputed land by the Ward Tribunal and the subsequent appeals were dismissed. That it is a trite law that, any decision however bad it is, it will stands to be a good decision unless the said decision is reversed by a superior court or tribunal. He argued that in our case, Salumu Ally Mahenge who was the original owner of the dispute land was defeated by the Appellant before the District land and Housing Tribunal and the High court of Tanzania hence the trial chairman was supposed to honor the decision and orders of Mianzini ward Tribunal. He submitted further that nevertheless, the proceeding of the Tribunal vividly shows that the Appellant was the first person to purchase the disputed land from Salum Ally Mahenge, before other purchasers. That the Tribunal was supposed to declare that the sale agreement between Salumu Ally Mahenge and the 1st respondent in DLHT as void ab initio, since at the time of the said sale, Salum Ally Mahenge has no title to pass it to the 1st respondent. Consequently the 1st respondent also lacked the title to pass it to the respondent herein and that if the respondent has any remedy at all then it was against the 1st respondent who sold the disputed land to him and not the appellant as wrongly perceived by the trial Chairman in his disputed judgment. In reply, the respondent submitted that the Honorable Chairman did not disqualify the ownership of the Appellant, but the only issue he challenged was as to why the Appellant sued only D4 without joining the proper and necessary party who repurchased the suit land. He argued that the 4 Appellant had a legal duty to join the Respondent in the said case instituted in the Ward Tribunal. In rejoinder, Mr. Ntonge argued that the evidence before the Ward Tribunal established that the disputed land at that time was belonging to Salumu Ally Mahenge, therefore whatever was there on the land also belonged to him. That since the disputed house cannot be owned by a different person who does not own the disputed land and that the law is clear that whatever is on the land belongs to the owner of that land. On my part, I have decided to determine the first ground of appeal first because I find that it goes to the root of the jurisdiction of the tribunal to entertain the application which is a subject of this appeal. This is because as per the records, during trial, it was an undisputed fact that both the appellant and the respondent herein purchased the land from the same person, Salim Ally Mahege who was the original owner of the suitland. It was also an undisputed fact that after the appellant found a trespasser in the land that was already sold to her; she filed a case at the Mianzini Ward Tribunal registered as Ward TMC/CHR/BAR/MAD/A.3/43/010. In that case she sued the same Salim Mahege who sold the land to both parties herein. The matter was decided in the appellants favor and the said Salum Mahege attempted to have the decision overturned vide the District Land and Housing Tribunal for Temeke's Land Appeal No. 94/2011 and a subsequent appeal to this court vide Misc. Land Case Appeal No. 85/2012. That means so far as the issue of ownership of the disputed land is concerned, the lawful owner as declared by the court was the appellant herein who then sold the disputed land to the 2nd respondent at the tribunal. On his part, the respondent herein claimed to have purchased the suitland from the 1st respondent at the tribunal, who also purchased the land from the said Salim Mahege in 2008. It should be noted that the appellant purchased the disputed land from Salim Mahege in 2007 which means by the time the said Mahege allegedly sold the land to the said 1st respondent at the tribunal (Shalifa Mpendu), he had no title to transfer. However, I will not go into the details of this transfer because as I said, the issue is on the jurisdiction of the tribunal to entertain the application currently on appeal. The main issue in question is whether it was proper for the respondent to have lodged a fresh case at the tribunal while the issue of ownership of the disputed land was already determined between the appellant herein and the person whom the respondent claims title under (as I shall elaborate). It is trite law that when a matter has been decided to its finality and the rights of parties has been determined; no fresh suit can be brought on the same subject matter for the same cause of action if the matter was between the same parties or people claiming title under the same party.(See the case of Herry Julias Nyela Vs. Sauda Rajab, HC Land Appeal No. 108/2016 (unreported) where it was held parties who were litigating over the same subject matter in the former suit cannot institute a fresh suit but may appeal instead). In the case at hand, the records are undisputed that both the appellant herein and the 1st respondent at the tribunal purchased the suitland from Salim Ally Mahege. The 1st respondent at the tribunal subsequently sold the land to the respondent herein therefore in principle, both the 1st respondent at the tribunal (Shalifa Mpendu) and the respondent herein claimed title under the said Salim Mahege. Therefore since the issue of ownership between the appellant and Salim Mahege had been determined and executed, then the tribunal could not have entertained the matter afresh. I therefore don't see how the trial tribunal usurped jurisdiction of the matter that had already been decided in favor of the appellant to the level of the High Court, if the respondent was aggrieved and felt affected by the decision which he was not a party to, the remedy that was available to him was to have the decision of the Mianzini Ward Tribunal set aside so that he could be joined as a party and not to file a fresh suit as he did in this case because in so far as the determination of the ownership of the disputed land was concerned, the tribunal was functus officio hence lacked jurisdiction to entertain the matter. On those findings, it is clear that the tribunal did not have jurisdiction to entertain a dispute of ownership over the land while the same dispute was already determined and executed between the same parties and the party whom the applicant at the tribunal claimed title under. Having so determined, I allow this appeal on the first ground of appeal only which is sufficient to dispose the whole appeal as the tribunal lacked jurisdiction to entertain the matter. Consequently, the whole proceedings, judgment and decree of the tribunal are hereby nullified. The disputed property remains the lawful property of the 2nd respondent at the tribunal who purchased the same from the appellant herein after she was declared the lawful owner of the same by the Mianzini Ward Tribunal. The appellant shall have her costs for this appeal and the costs at the trial tribunal. Dated at Dar es Salaam this 24th day of March, 2021. JUDGE 8