Elikana Safii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 28713 OF 2024 (Appeal from the ruling and order of the District Land and Housing Tribunal for Kinondoni District at Mwananyamaia (Hon. Chenya, Chairman) dated22/10/2024 in Land Application No. 223 of2023) RAYMOND JACOB ELI KAN A (the administrator of the estate of the late JACOB ELIKANA MURO)........................ APPELLANT VERSUS AYOUB RAMADHANI....................................................... 1st RESPONDENT YUSUPH MHANDO........................................................... 2nd RESPONDENT JUDGMENT 12/02/2025 & 19/03/2025 N.E. MAN DI A, J The appellant was aggrieved by part of the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamaia (the Tribunal) in Land Application No.223 of 2023 dated 22.10.2024. He has now appealed to this court on the following grounds: 1. The trial tribunal erred in law and fact by upholding the 1st respondent's preliminary objection [the PO] that the Land Application No. 223 of2023 was res judicata to Civil Case No. 92 of 2002; Land Case No. 113 of 2008 and Civil Appeal No. 85 of 2020[hereinafter referred collectively as the previous casesj 2. The trial tribunal erred in law and fact by holding that the previous cases dealt with the sale and ownership of the whole Plot No. 95 Save! area while the said holding is contrary to the previous cases decisions and records. 1 3. The trial tribunal erred in law and fact by observing that the 1st respondent vide Civil Appeal No. 85 of 2020 he successfully cross appealed to the court of appeal, while in actual fact the appellant abandoned his appeal as such him and the appellant herein lost in Civil Appeal No. 85 of2020 4. The trial tribunal erred in /aw and fact by basing its decision on the finding of the Court of Appeal in Civil Case No. 85 of2020 that the 2007sale of whole landed property known as Plot No. 95 Save! area between the 1st respondent; appellant's deceased father and the 2nd respondent was invalid as the 1st respondent herein had no title to pass, while that finding of the Court ofAppeal had in mind the 1996 prior sale of the portion and not the whole plot which the 1st respondent sold to the appellant in 2007 5. The trial tribunal contradicted itself by holding that Land Case No. 113 of2008 was decided in favour of the appellant and his counter claim was dismissed, white it is the 1st respondent's case which was dismissed and the appellant's counter claim succeeded 6. The trial tribunal chairman a/one erred in law and fact by hearing and determining the PC's raised by the 1st respondent without involving the assessors. 7. The trial tribunal erred in taw and fact by failing to realize that the Court of Appeal ordered the parties hereto to comply with the settlement deed in Civil Case No. 92 of 2002 where after the subdivision of Plot No. 95 Save! area, the 1st respondent remained with a portion of land which formed the subject claim in Land Application No. 223 of2023 8. The trial tribunal erred in law and fact by failing to decide whether the purported res judicata PO is a pure point of law or fact which need proof. A brief factual account underlying the present appeal as obtained from the records is that: the appellant and the 1st respondent sued each other in the High 2 Court Land Division in Land Case No. 113 of 2008 each claiming against the other that he has breached a contract of sale of Plot. No. 95 Savei Area, Dar es Salaam. The said sale agreement was executed by the parties to this appeal on 05.09.2007. The event which took place during the execution of the said sale agreement and some events which took place soon thereafter made the 1st respondent to file Land Case No. 113 of 2008 seeking for the nullification of the sale transaction on account of violation of his rights in the contract and on the other hand JACOB ELIKANA MURO who was the defendant, filed a counter claim seeking for among others an order that he should be declared the lawful owner of the suit land and be given vacant possession. On 13.08.2015 the High Court dismissed the plaintiffs' claims and on the other hand declared the appellant who was the plaintiff in the counter-claim as the owner of the whole of Plot No. 95, Savei Area. The land which he was declared the owner included the land in which one ENOCK KALIBWAMI, the 3rd defendant in Land Case No. 113 of 2008 had his residence. ENOCK KALIBWAMI appealed to the Court of Appeal. On 05.06.2023 the Court of Appeal quashed the whole judgment of the High Court and declared the sale between the appellant and the respondents a nullity. On 07.09.2023 the appellant filed Land Application No. 223 of 2023 in the District Land and Housing Tribunal for Kinondoni praying for among other remedies the specific performance of the sale agreement entered into between the parties in this appeal on the 22.10.2007. The 1st respondent raised a preliminary objection 3 that the application is res judicata and is brought out of time as against the dictate of item 22 of part 1 of the schedule to the Law of Limitation Act [Cap 89 R.E 20219]. The Tribunal sustained the 1st objection but overruled the 2nd, and the application was as whole dismissed hence, this appeal and cross appeal. Both the appeal and the cross appeal were disposed by way of written submission. Mr. Francis Mgale, learned counsel represented the appellant whereas Mr. Barnabas Lugua, learned counsel appeared for the 1st respondent. The 2nd respondent despite being served he never appeared in court hence, hearing proceeded ex parte against him. In support of the 1st ground of appeal that Application No.223 of 2023 was Res Judicata, Mr. Mgale submitted that for res judicata to apply the following criteria must be involved: (a)parties must be the same; (b) same subject matter; (c)the earlier case must have been decided by a competent court; (d) the case must have been decided directly and substantially. He cited section 9 of the Civil Procedure Code [Cap 33 R.E 2019] (the CPC) and the case of GEORGE SHAMBWE VS. TANZANIA ITALIAN PETROLEUM CO. LTD (1995) TLR 20 to bolster his argument. He submitted further that in Land Case No. 113 of 2008 the subject matter was the whole Plot No. 95 Savei area which the Court of Appeal in Civil Appeal No. 85 of 2020 found that a portion of it was sold to one ENOCK KALIBWANI before 1996 and that portion formed the subject matter litigated in 4 Civil Case No.92 of 2002. That the parties in Civil Case No.92 of 2002 were ENOCK KALIBWANI (as plaintiff) and Dr. Ayub R. Kajungo (as a defendant) whereas, the parties to the High Court and the Court of Appeal, were JACOB ELIKANA MURO (now represented by Raymond Jacob Elikana Muro as administrator); AYOUB RAMADHANI, YUSUPH MHANDO AND ENOCK KALIBWANI. That the High Court and Court of Appeal were competent to determine Land Case No. 113 of 2015 and Civil Appeal No. 85 of 2020 respectively. That the High Court directly and substantially determined Land Case No. 113 of 2015 in respect of the whole Plot No.95 Savei area while the Court of Appeal decided not on the substantive issue but rather whether the High Court decision was legally valid in relation to the deed of settlement and decree issued by Kinondoni District Court in Civil Case No. 92 of 2002. On the 2nd ground of appeal that previous cases dealt with sale and ownership of Plot No. 95 Savei area, Mr. Mgale submitted that, in Civil Case No.92 of 2002, the 1996 sale was in respect of a portion of the disputed plot between the 1st respondent and ENOCK KALIBWANI, Land Case No. 113 of 2008 between the 1st respondent and the appellant's father dealt with the whole disputed plot while the Court of Appeal in Civil Appeal No. 85 of 202 observed that the 1st respondent had no plot to sale to the appellant's father. On the 3rd ground of appeal, Mr. Mgale contended that it was wrong for the trial tribunal to observe that the 1st respondent vide Civil Appeal No. 85 of 5 2020 successfully cross appealed to the Court of Appeal while in actual fact the appellant abandoned his appeal. That per the trial tribunal record, it is clearly shown that the 1st respondent abandoned his cross appeal and the same was marked withdrawn. Mr. Mgale combined the 4th and 5th grounds of appeal and submitted that the trial tribunal erred by basing its decision on the finding of the Court of Appeal in Civil Appeal No.85 of 2020 that the 2007 sale of the whole Plot No.95 Savei area between the 1st respondent, appellant's deceased father and the 2nd respondent was invalid as the 1st respondent had no little to pass while what the Court of Appeal had in mind is the 1996 prior sale of the portion of the plot which the 1st respondent purported to sale to the appellant's late father in 2007. Mr. Mgale submitted that it was wrong to observe that Land Case No. 113 of 2008 was decided in favour of the appellant and his counterclaim was dismissed because it is the 1st respondent's case which was dismissed and the appellant's late father counterclaim succeeded. He submitted further that if this court closely read the Court of Appeal decision in Civil Appeal No. 85 of 2020 it will realize that what the trial tribunal observed on the two aspects is contrary to what is on record. On the 6th ground of appeal, Mr. Mgale contended that the trial chairman erred in law and fact by hearing and determining the preliminary objection alone without involving the assessors. That for the trial tribunal to be duly constituted 6 it must be composed of the chairman and two assessors. That the chairman alone heard and determined the objection raised which was contrary to law hence, the decision he rendered is a nullity. He cited section 23 (1) of the Land Disputes Courts Act [Cap 216 R.E 2019] and the case of AMEIR MBARAKA & AZANIA BANK CORPORATION LTD VS. EDGAR KAHWILI [2016] 1 TLR 54 to bolster his argument. On the 7th ground of appeal, Mr. Mgale submitted that the trial tribunal erred by failing to realize that the Court of Appeal in Civil Appeal No.85 of 2020 ordered the parties to comply with the settlement deed in Civil Case No 92 of 2022, whereby after the subdivision of Plot No.95 Savei area the 1st respondent remained with a portion which formed the subject of claim in Land Application No. 223 of 2023. That had the trial tribunal realized this fact, it could have dismissed the objection on res judicata because it is that portion of land which the appellant is claiming against the 1st respondent and asked the trial tribunal to declare him the legal owner and not otherwise. On the 8th ground of appeal, Mr. Mgale submitted that it was wrong on the part of the trial tribunal not either accept or reject the appellant counsel argument on whether the objection of res judicata was a pure point of law worth to be entertained or was it a fact requiring evidence to prove it. That if a court of law decides to either accept or reject the parties' argument it has to expressly say so and give reasons. He cited the case of TANZANIA BREWERIES LTD 7 VS. ANTHONY NYINGI [2016] TLR 100. Mr. Luguwa started by his submission in support of the cross appeal against the holding of the Tribunal that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence, another civil proceeding, whether in court of first instance or in a court of appeal, against the defendant, shall be excluded, where the proceedings is founded upon the same cause of action and is prosecuted in good faith in a court of which, from defect of jurisdiction or other cause of a like nature, is incompetent to entertain it. He submitted that such time is excluded only when it is proved that the High Court which tried and determined Land Case No. 113 of 2008 had no jurisdiction to hear and determine the case. He was of the view that the High Court had both territorial and pecuniary jurisdiction and so far as the matter was a land matter hence, no person can recommence another proceedings excluding the time spent on adjudicating Land Case No. 113 of 2008 because the High Court had exclusive jurisdiction to try and determine Land Case No. 113 of 2008 between the same parties and over the same subject matter, he prayed for the court to hold that it was improper for the trial chairman to exclude such time and order that Application No. 223 of 2023 was time barred. That the act of excluding the time of adjudicating Land Case No. 113 of 2008 and Civil Appeal No. 85 of 2020 was against the law because the said courts were competent to 8 hear and determine the said cases. In response to the 1st and 2nd ground of appeal, Mr. Luguwa cited the case of JOHN PIUS TSOXHO VS. HERMAN PAUL AWE, Civil Appeal No. 525 of 2021 which quoted with approval the holding in the case of REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI VS. MMOHAMED IBRAHIM VERSI &SONS & ALLY MOHAMED VERSI Civil Appeal No. 16 of 2008 to bolster his argument that for the plea of Res Judicata to operate there are conditions which must be fulfilled to wit: a) the former suit must have been between the same litigants / parties or between the parties under whom they or any of them claim, b) the subject matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and subsequently in issue in the former suit either actually or constructively, c) the party in the subsequent suit must have litigated under the same title in the former suit, d) the matter must have been heard and finally decided, and e) the former suit must have been decided by the court of competent jurisdiction. That in order to invoke the bar of Res Judicata it is not necessary that the cause of action in the two suits should be identical it is only required that the matter directly and substantially in issue should be the same in both suits. Mr. Luguwa contended that the first requirement to be proved in the rule of res judicata can be ascertained from the pleadings of Land Case No. 113 of 2008 and Application No. 223 of 2023. That the appellant had filed a counter 9 claim in which the parties were JACOB ELIKANA MURO (Plaintiff) against AYUBU RAMADHANI (1st Defendant), YUSUPH MHANDO (2nd Defendant) and ENOCK KALIBWAMI (3rd Defendant) whereas parties in Application No. 223 of 2023 were RAYMOND JACOB ELIKANA (the administrator of the estate of the late JACOB ELIKANA MURO) (Applicant) against AYUBU RAMADHANI (1st Respondent) and YUSUPH MHANDO (2nd Respondent), save for ENOCK KALIBWAMI who is not sued in the application. That the appellant who was the plaintiff in Land Case No. 113 of 2008 is dragging the two respondents in respect of the claims arising from the sale agreement which was entered into between the trio on 27.09.2007. That this clearly demonstrates that the two suits were between same parties. On the 2nd requirement he submitted that it is evident from the pleadings that the contents of paragraph 11, 12, 13, 16, 17, 18 and 19 of the counter claim is similar to what is stated in paragraph 6(a)(i), (ii) (iii), (iv), (ix), (x) and (xi) of Application No. 223 of 2023. That the prayers in the counter claim are similar to the prayers in the said application. He submitted that the cause of action in Application No. 223 of 2023 is substantially the same with Land Case No. 113 of 2008. On the 3rd requirement he submitted that the contents in paragraph 13 of the counter claim in Land Case Number 113 of 2008 and in para 6(a)(iii) of Application 223 of 2023 show that the parties were litigating under the same io title save for the use of the words PLAINTIFF and DEFENDANT in the plaint and APPLICANT and RESPONDENT in an application but the arrangement of parties has not changed. On the 4th requirement, he submitted that the dispute arose soon after the appellant and the 2nd respondent executed the sale agreement. In that case the plaintiff AYUB RAMADHANI maintained that he offered only portion of land for sale to the 1st defendant now the appellant while YUFUF MHANDO and JACOB ELICANA MURO asserted that they bought the whole of the land known us plot No. 95 Savei Area and in a trial AYOUB RAMADHANI lost his claim of selling a portion of land and JACOB ELICANA MURO won that he bought the whole plot No 95 SAVEI area. On appeal the court of Appeal held that there was no Plot No. 95 Savei Area when the transaction was executed hence the purported sale between YACOB ELICANA MURO and YUSUFU MHANDO was declared a nullity. That it is clear that the matter concerning the said sale transaction was heard and finalized. On the 5th requirement he submitted that the dispute is purely a land dispute hence the High Court Land Division was the court which enjoyed exclusive jurisdiction over land matters. He prayed that the 1st and 2nd ground of appeal be dismissed and Application No. 223 of 2023 be declared as res judicata and that it was filed out of time. In reply to the 3rd ground of appeal, Mr. Luguwa contended that this issue ii is irrelevant because the impugned ruling is premised on the preliminary objections which were raised and determined in the Tribunal. That the 1st respondent dropped the grounds in the counter claim because the arguments in support of the grounds of appeal were supporting his case hence, there was no need to repeat what has already been covered in his favour. That the claim that the 1st respondent abandoned his appeal is not correct instead, he successfully supported the appeal. He prayed that the 3rd ground be dismissed. Mr. Lugua combined the 4th and 5th grounds of appeal and replied that, Mr. Mgale has brought this argument in a wrong premise. That the right cause was for him to issue a notice of cross appeal to the Court of Appeal under Rule 94 of the Court of Appeal Rules 2019. That it was the 1st respondent case that he sold to the appellant only a portion of the plot and on the other hand the appellant disputed that he bought the whole plot and the allegation that he sold only portion was dismissed on merit. That this matter was already determined by the Court of Appeal hence, bringing it again is Res Judicata. In reply to the 6th ground of appeal, Mr. Luguwa submitted that assessors are persons who are appointed for purposes of assisting court to ascertain matters of facts not law. That the matter which were being determined were matters of law hence, are not determined with the assistance of the 12 assessors. He prayed that this ground of appeal be dismissed. In reply to the 8th ground of appeal, Mr. Luguwa contended that Res Judicata is a point of law and the moment it is proved it operates as a bar to other proceedings on the same cause faction. Finally, he prayed that the appeal be dismissed with costs. In reply to the ground of cross appeal, Mr. Mgale submitted that the time for the recovery of land in terms of item 22 part 1 of the schedule of the Law of Limitation Act (supra) is 12 years. That when the appellant filed the said application in 2023 it was out of time for 4 years. He argues that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence another civil proceeding, whether in the trial court or in the court of appeal shall be excluded. He cited section 52(2) of the Land Disputes Courts Act(supra) read together with sections 21(1),3 (2) (a) and (b) of the Law of Limitation Act(supra) and the case of INDO-AFRICAN ESTATE LTD VS. DISTRICT COMMISSIONERS FOR LIN DI DISTRICT & 3 OTHERS (Civil Appeal No.90 of 2023. That the appellant had duly pleaded under paragraph 6(a)(vii) of his application, the reasons for claiming the exemption under the Law of Limitation Act. That if the time from 2007 when the applicant was in court diligently prosecuting Land Case No. 113 of 2008 will be excluded to 13.8.2015 when judgment was delivered, and thereafter to 5.6.2023 when the Court of Appeal in Civil Appeal No.85 of 2020 quashed and set aside the High 13 Court judgment up to 7.9.2023 when Application No.223 of 2023 was filed, it will became apparent that the application was not time barred as it was filed within 3 months from 5.6.2023 when the Court of Appeal ordered compliance with Civil Case No. 92 of 2002 in which the appellant was not a party. In rejoinder to the 1st and 2nd grounds of appeal, Mr. Mgale contended that the cited cases are distinguishable from the appellant case in the material facts hence, irrelevant. That the 1st respondent reply never touched Civil Case No.92 of 2002 nor did he explain how Res Judicata applies to the three cases. That the ingredients of Res Judicata must be established cumulatively. He re-joined that the parties and subject matter are different both in Civil Case No.92 of 2002 and Application No. 223 of 2023. That the subject matter in Civil Case No. 92 of 2002 and Application No. 223 of 2023 was a portion of Plot No. 95 Savei, while the High Court Land Case No. 113 of 2008 dealt with the whole Plot No.95 Savei. That the courts in Civil Case No.92 of 2002 (Kinondoni District Court) and Land Case No. 113 of 2008 (High Court (Land Division) were competent to try the cases. That Civil Case No. 92 of 2007 was not decided on merits whereas the High Court in Land Case No. 113 of 2008 was heard and decided on merits. That the two cases; Civil Case No 92 of 2002 and Land Case No. 113 of 2008 were not litigated under the same title. Hence, the 14 doctrine of Res Judicata was not applicable in Application No. 223 of 2023. On the 3rd ground of appeal, Mr. Mgale rejoined that the Court of Appeal decision is so clear that the 1st respondent abandoned the appeal and the same was marked withdrawn. He cited the case of HALFANI SUDI VS. ABIEZA CHICHILI (1998) TLR. 527. That the assertion that the 1st respondent supported the appeal is not backed by the court record and therefore it should be disregarded. Mr. Mgale rejoined the 4th, 5th and 7th grounds of appeal and submitted that the appellant could not cross appeal after the Court of Appeal decision in Civil Appeal No. 85 of 2020. That in law there is no such avenue as was wrongly suggested by the 1st respondent counsel. That the appellant was right to file a fresh case against the 1st respondent claiming for the remaining portion of Plot No. 95 Savei and compensation in monetary terms for the portion of land which ENOCK KALIBWANI is owning. That the argument by 1st respondent that he sold a portion of land and not the whole plot to the appellant is not correct nor is it supported by the court record and the Court of Appeal decision hence, it is an afterthought. Rejoining on the 6th ground of appeal, Mr. Mgale contended that the argument is misconceived and misplaced as section 23(2) of the Land 15 Disputes Courts Act(supra) is clear that a dully constituted tribunal is held by chairman and two assessors'. On the 8th ground of appeal, Mr. Mgale rejoined that Res Judicata entails a comparison of pleadings between cases to ascertain the five ingredients forming that principle. He was of the view that Res Judicata is not a pure point of law but a matter which needs evidence. Having careful examined the record and written submission made by the learned counsels, the pertinent issue for my determination is whether the appeal and the cross appeal have merits. I will combine the 1st and 2nd grounds of appeal that trial tribunal erred in law and fact by upholding the 1st respondent's preliminary objection that Land Application No. 223 of 2023 was Res Judicata to Civil Case No. 92 of 2002; Land Case No. 113 of 2008 and Civil Appeal No. 85 of 2020 and that the previous cases dealt with the sale and ownership of the whole Plot No. 95 Savei. At the outset, I am aware as submitted by both counsels that for the doctrine of Res Judicata to apply, all the conditions stipulated under section 9 of the CPC must be met cumulatively. After examining the record, I have realized that the subject matter in Land Case No. 113 of 2008 was the whole Plot No. 95 Savei Area while the Court of Appeal in Civil Appeal No. 85 of 2020 ordered that the decision in Civil Case No. 92 of 2002 dated 3rd June, 2004 be complied with. It is on record that the Court of Appeal determination was on failure to consider the appellant's 16 evidence found in exhibit Pl, D3 and D4 leading to disentitling him of the piece of land he lawful purchased. Again, after perusing the record in Civil Case No. 92 of 2002,1 have realized that the District Court had ordered the Registrar of Titles to survey and subdivide the land in Plot No. 95 Savei Area, Dar Es Salaam comprising of certificate of title No. 39115. Similarly, the appellant in his application No. 223 of 2023 at paragraph 6(a)(iv) was asking the tribunal to declare him the lawful owner of the 603 square meters of land which the 1st respondent remained with after the subdivision of Plot No. 95 Savei. Having found that, it is my settled observation that it is not true that previous cases dealt with the sale and ownership of the whole Plot No. 95 Savei and that Application No. 223 of 2023 was not Res Judicata for the reason that it was premised on a different subject matter, that is a portion of Plot No. 95 Savei Area. These grounds have merits. On the 3rd ground of appeal, after examining the decision of the Court of Appeal, it is my settled position that what did the Court of Appeal say is that Mr. Luguwa had contended that all the grounds in his cross appeal had been dealt with in the grounds of appeal hence, he opted to abandon the matter and the Court of Appeal marked the cross appeal as withdrawn. Hence, the reason for his abandonment was due to fact that his cross appeal was already argued in his favour. In the circumstance this ground has no merit. 17 On the 4th and 5th grounds of appeal, it is on record that the Court of Appeal invalidated the sale agreement (the 2007 sale) of the whole landed property, known as Plot No. 95 Mwenge, Savei, Area between the first respondent (AYUBU RAMADHANI) and the second respondent (ELIKANA MURO) as the first respondent did not have title to pass to the second respondent bearing in mind the 1996 sale agreement between AYUBU RAMADHANI and ENOCK KALIBWANI. Hence, in my view the trial chairman was correct in his observation. Again, it is on record that the High Court in Land Case No. 113 of 2008 dismissed both the plaintiff (AYUBU RAMADHANI) case and the 3rd defendants (ENOCK KALIBWANI) counter claim. In actual fact, Land Case No. 113 of 2008 was decided in favour of the appellant who was the first defendant. These grounds also have no merit. On the 6th ground of appeal, it was contended that the trial chairman had determined the preliminary objection without involving the assessors as required under section 23 (1) of the Land Disputes Courts Act (supra). I had an occasion to revisit the said Act and its regulations enshrined in GN. No. 174 of 2003 particularly regulation 22(a) which gives special power to the chairman to determine preliminary objections based on points of laws. It is my considered observation therefore that the trial chairman was right in determining the preliminary objections without the aid of assessors. Hence, this ground has no merit. u 18 On the 7th ground of appeal, after going through the Court of Appeal decision in Civil Appeal No. 85 of 2020, I have found that the Court of Appeal ordered the decision in Civil Case No 92 of 2002 dated 3rd June, 2004 to be complied with. However, the said decision involved ENOCK KALIBWANI who was the plaintiff and DR. AYUBU KAJUNGO who was the defendant. It is my observation that the 1st respondent was not part of the settlement deed in Civil Case No 92 of 2002 hence, the trial tribunal was right in its observation. It is my firm position that despite the fact that the portion of land remained after the subdivision of Plot No. 95 Savei Area formed the subject of claim in Land Application No. 223 of 2023, the 1st respondent was never a party to the said settlement deed. This ground has no merit. On the 8th ground of appeal, I concede to the submission made by Mr. Luguwa that Res Judicata is a point of law the moment all the requirement within it are met. It is a legal bar to prevent re-litigation of issues that have been definitively decided by a competent court, ensuring finality in litigation and protecting parties from unnecessary vexation. This ground also has no merit. On the ground of cross appeal, it is trite law that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting, with due diligence, another civil proceeding shall be excluded, where the proceedings are founded upon the same cause of action and is prosecuted in good faith in a court of which, from defect of jurisdiction or other 19 cause of a like nature, is incompetent to entertain it. After my careful examination of the record, it is settled that Land Case No. 113 of 2008 was not prosecuted by the appellant rather he was the 1st defendant. Similarly, Civil Appeal No. 85 of 2020 was prosecuted by ENOCK KALIBWANI and the appellant was the 2nd respondent. It is my considered observation that Land Case No. 113 of 2008 was filed 4 years after the decision in Land Case No. 92 of 2002 of which the appellant was not a party. The appellant came to existence via Land Case No. 113 of 2008 as the 1st respondent claiming ownership of the whole Plot No. 95 Savei Area through a sale agreement that was executed in 2007. It is my view therefore that, it is proper to exclude the time spent in prosecuting Land Case No. 113 of 2008 and Civil Appeal No. 85 of 2020 for the reason that the appellant had no control of those proceedings because he was not the one who instituted them. In the circumstance, I am of the settled position that Land Application No. 223 of 2023 was filed well within time. I also find no merit in this ground of cross appeal. In the end, and without prejudice to my observation, I allow the appeal to the extent explained in my reasoning and analysis. The decision in Land Application No. 223 of 2023 is hereby quashed and set aside. The Tribunal is ordered to proceed with the trial of Land Application No. 223 of 2023 from where it stopped. I hesitate to make orders as to costs bearing in mind the circumstance of the appeal and cross appeal. 20 It is so ordered. 21