Land Revision No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM LAND REVISION NO. 13259 OF 2024 (Arising from the Decision of the District Land and Housing Tribunal for Kibaha at Kibaha in Misc Land Application No. 98 of2021) RASHID KIZIGO....................................................................... APPLICANT VERSUS CHARLES GABRIEL......................... RESPONDENT RULING Date of last Order: 15/10/2024 Date of Ruling: 28/10/2024 LALTAIKA, J The Applicant hereon RASHID KIZIGO filed this application under Section 143(1) and (b) of the Land Dispute Courts Act, Cap 16 R.E. 2019, Section 99(1) (a) and (b) and Section 95 of the Civil Procedure Code Cap 33 R.E. 2019 and Item 21 of Part II to the schedule of the Law of Limitation Act Cap 89 R.E 2019, among other laws. He is praying that this Court, be pleased Call for and examine the entire proceedings, orders, and ruling of the District Land and Housing Tribunal for Kibaha in Miscellaneous Application No. 98 of 2021. Page 1 of 12 When the Application was called for mention, the Applicant appeared in person, unrepresented. The Respondent, on the other hand, enjoyed the legal services of Ms. Mwanahamisi Rashid Kivaria, learned Advocate. Parties opted to dispose of the application by way of written submission. A schedule to that effect was agreed upon and spotlessly complied. I take this opportunity to register my commendation to Counsel for the Respondent and anonymous legal aid provider of the Applicant for unwavering compliance with he ordered schedule. The next part of this Ruling is a summary of submissions by both parties. The Applicant requested that the Court review the proceedings, order, and ruling of the District Land and Housing Tribunal for Kibaha in Misc. Application No. 98 of 2021, arguing that it was tainted by irregularities, specifically due to the application of the doctrine of res judicata. Providing background, the Applicant explained that in 2014, he had filed a suit against Sultan Mtiga before the Pugu Ward Tribunal in Madai No. 112 of 2014, seeking a declaration of ownership. He was successful in this claim, which was then executed under Misc. Application No. 166 of 2014. However, while the case was still pending, Mtiga sold the property to the Respondent, Charles Gabriel. Later, in 2020, the Respondent Page 2 of 12 brought a trespass suit against the Applicant before the Kiluvya Ward Tribunal concerning the same property, which was decided in the Respondent's favor and subsequently resulted in Misc. Application No. 98 of 2021, now under review. The Applicant asserted that the principles of resjudicata under section 9 of the Civil Procedure Code, Cap. 33 R.E 2019, applied to these circumstances, given that the subject matter, cause of action, and parties or privies in effect remained the same. The Applicant also argued for the application of the doctrine of Us pendens, referencing Jane Marete v. Joseph Ndegwa & 2 others (Civil Appeal No. E042 of 2021) [2024] KEC A 545 at paragraph 63, where the Court of Appeal of Kenya held that the doctrine prevents any new interest from arising during the pendency of litigation involving title to a property. He also cited the foundational English case of Bellamy v. Sabine (1857) 1 De G & J 566, in which Lord Turner held that, to avoid undermining the outcome of a suit, alienations made during ongoing litigation should not prevail. Page 3 of 12 The Applicant submitted further that because the Respondent had acquired the property while litigation was still active, he was bound by the legal burdens associated with it. On the strength of these arguments and authorities, the Applicant requested that the Court set aside the execution order in Misc. Application No. 98 of 2021, nullify Application No. 34 of 2020, and award him costs. The Respondent submitted that they had thoroughly reviewed the Applicant's written submissions for revision but found them lacking in merit. Consequently, the Respondent urged the Court to dismiss the application with costs, beginning by adopting Charles Gabriel's counter-affidavit to form part of their submissions. Ms. Kivaria, Counsel for the Respondent, on her part, contended that the Applicant had trespassed onto the Respondent's land and had sold a portion to one Elia Mushi. Given this, the Respondent had filed a suit against the Applicant and Mushi in Shauri No. 34 of 2020 at the Kiluvya Ward Tribunal, resulting in a judgment in the Respondent's favour when the Applicant failed to prove ownership. Despite being served with notice to show cause during the Respondent's execution application (Misc. Application No. 98 of 2021), the Applicant did not appeal or seek review. The Page 4 of 12 Respondent pointed to the Applicants statement—"hatuna mpango wa kukata rufaa"—to emphasize the Applicant's disinterest in appealing, citing this as Annexture RK-5 in the Applicant's affidavit. Ms. Kivaria also argued that the Applicant lacked basic knowledge of the disputed land's location, size, or boundaries, as evidenced by the Applicant's own testimony at the Kiluvya Ward Tribunal. According to the Ms. Kivaria, the Applicant acknowledged having no witnesses (Annexture RK-4 attached to the Applicant's affidavit), leading the Respondent to question whether it was possible to own land without identifiable neighbours. Based on this, Counsel asserted, the Applicant was not the rightful owner but a trespasser. Following the execution, the learned Advocate stated, Mushi had entered into an agreement to pay for the piece of land he intended to buy from the Applicant, leading to a registered deed of settlement at the District Land and Housing Tribunal of Kibaha. Consequently, averred Ms. Kivaria, Mushi was not evicted during execution, while only the Applicant was removed. Page 5 of 12 In addressing the Applicant's contention that Shauri No. 34 of 2020 between the parties constituted res judicata, Ms. Kivaria noted that the Respondent was never a party to the Applicant's prior suit against Sultan Mtiga. Additionally, Counsel argued, the land involved in that dispute was distinct from the current land in dispute. Thus, Counsel for the Respondent argued, resjudicata did not apply. Ms. Kivaria referred to Section 9 of the Civil Procedure Code, Cap. 33 R.E. 2019, and Muiia: The Code of Civil Procedure, noting that Section 9 prohibits re-litigation of issues previously decided between the same parties or privies under the same title. Ms. Kivaria asserted that this provision and the reference to Muiia were irrelevant in the current case because the Applicant was attempting to introduce new evidence that was not presented in Shauri No. 34 of 2020. Ms. Kivaria further argued that Misc. Application No. 98 of 2021 did not constitute res judicata and that the doctrine of /is pendens cited by the Applicant under Order XXI Rule 100 of Cap. 33, along with cases like Jane Marete v. Joseph Ndegwa & 2 others (Supra) and Bellamy v. Sabine (Supra) were inapplicable. The Respondent pointed out that the Applicant Page 6 of 12 had provided no evidence to substantiate that the land in dispute was the same as the one contested with Sultan Mtiga. Regarding the Applicant's claim that Misc. Application No. 98 of 2021 was marred by illegalities and irregularities, Ms. Kivaria argued that this was unsubstantiated. She cited Eqbal Ebrahim v. Yesseh K. Wahyungi, Civil Application No. 202/17/2022, Court of Appeal of Tanzania (unreported), where the apex Court held that it is not the duty of the Court to unearth alleged irregularities or illegalities unless clearly demonstrated by the Applicant. Ms. Kivaria emphasized that the Applicant had failed to demonstrate these alleged irregularities. Additionally, Counsel asserted that the Applicant had the right to appeal against the Kiluvya Ward Tribunal’s decision but opted not to exercise it. She argued that revision cannot substitute for an appeal, as confirmed in Eqbal Ebrahim (supra), where the Court stated that revision applies only when there is no right to appeal, and that the Applicant had provided no adequate reason for not appealing. Counsel for the Respondent further contended that the application for revision had been overtaken by events, as Misc. Application No. 98 of 2021 Page 7 of 12 had already been executed. To buttress her argument, she cited Felix Emmanuel Mkongwa v. Andrew Kimwaga, Civil Application No. 249 of 2016, Court of Appeal of Tanzania (unreported), where it was held that applications overtaken by events serve no purpose and should be dismissed. In conclusion, Ms. Kivaria asserted that the Respondent was the rightful owner of the disputed land, that res judicata was inapplicable, and that since the application was brought over three years after execution, granting it would serve no purpose. She prayed that the Court uphold the decision in Misc. Application No. 98 of 2021 and dismiss the application with costs due to its lack of merit. In rejoinder, the Applicant began by informing the court that he had previously initiated legal proceedings against Sultan Mtiga, seeking a declaration of rightful ownership and recovery of a specific parcel of land. He clarified that he did not include Sultan Mtiga as a respondent in this case, as Sultan had sold the disputed land to another party. This information, he added, is detailed in paragraph 2 of his affidavit. The Applicant explained that he initiated the case on October 15, 2014, as stated in paragraph 2 of his affidavit, and the matter was resolved in his Page 8 of 12 favour by February 2015, with possession of the land granted to him on October 10, 2015. He stated that no other individuals had come forward to assert ownership of the land until 2017, when he sought to subdivide the property for sale to one Elia Mushi. At that time, he asserted, the Respondent emerged, asserting that he was the legitimate owner and disputing the Applicants ownership. The Applicant noted that the Respondent did not appear in the tribunal in 2017 and only re-emerged in 2020, when an individual named Boniface Mathew, claiming to be the Respondent's brother, appeared on behalf of Charles Gabriel, the Respondent, who had not been present since the inception of the matter before the Ward Tribunal. He went on to narrate a rather lengthy chronology of events which, in essence, amounts to reiteration of the contents of the submission in chief. I have dispassionately considered the rival submissions. The principal issue for determination is whether the doctrine of res judicata applies to bar Miscellaneous Application No. 98 of 2021, and whether the court should exercise its revisionary powers to overturn the decision of the Kiluvya Ward Tribunal. Page 9 of 12 The doctrine of res judicata is defined under Section 9 of the Civil Procedure Code, Cap 33, R.E. 2019, which bars courts from re-adjudicating matters that have been finally decided in prior proceedings between the same parties, or those deriving claims from them, on the same subject matter. MULLAZ The Code of Civil Procedure articulates that resjudicata applies when the former judgment binds the parties or their privies. The Applicant has submitted that he previously secured a judgment from the Pugu Ward Tribunal in Madai No. 112 of 2014 and claims that Miscellaneous Application No. 98 of 2021 re-litigates issues previously settled in his favour. However, it is my finding that the Respondent was not a party to Madai No. 112 of 2014 and acquired his purported title to the disputed land through a separate transaction involving Sultan Mtiga. In Eqbal Ebrahim v. Yesseh K. Wahyungiz (supra), the Court of Appeal of Tanzania emphasized that revision is only available where appeal is not an option, and that applicants must establish exceptional circumstances to justify revision. Here, the Applicant has not provided sufficient explanation as to why he did not pursue an appeal of the Kiluvya Ward Tribunal's decision in Shauri Na. 34 of 2020 within the prescribed timeframe. Furthermore, as observed in the judgment, the court will not Page 10 of 12 assume the duty of "digging up" for illegalities not clearly articulated by the applicant. The Applicant's assertion of illegality is vague and fails to specify the irregularities in Miscellaneous Application No. 98 of 2021. Regarding the Respondent's argument that the application has been overtaken by events, I abide by the decision in Felix Emmanuel Mkongwa v. Endrew Kimwagaz which underscores, as stipulated by the Apex Court in our Jurisdiction, that an application that no longer serves its intended purpose may be dismissed. In the present case, the judgment in Miscellaneous Application No. 98 of 2021 has already been executed, making the Applicant's prayer for revision of limited practical effect. In the upshot, Additionally, the Applicant has not substantiated any illegality or procedural irregularity sufficient to warrant the intervention of this court under its revisionary jurisdiction. Accordingly, this application for revision is hereby dismissed with costs. It is so ordered. Court Ruling delivered in Chambers this 28th day of October 2024 in the presence of Ms. Mwanahamisi Rashid Kivaria, Counsel for the Respondent and the Appellant who has appeared in person, unrepresented. Page 12 of 12