20161109 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA LAND APPEAL NO.101 OF 2014 - {From the decision of the District Land and Housing Tribunal of Tari me District at Tari me in Land Case No.51 of 2014) Registered Trustees of Musoma Diocese ------------------------ APPELLANT VERSUS. Marwa Mwita Makondo -------------------------- RESPONDENT JUDGEMENT Ebrahim,J.: The appellant herein has filed this appeal claiming that the trial Tribunal erred law in deciding that application No. 51 of 2014 before the District Land and Housing Tribunal for Tarime at Tarime is RES-JUDICATA vis a vis Civil Application No. 20/2006. According to proceedings 9n records, it can be gathered that in Civil '--<· Case No 20/2006, the case was between Sirori Simba V Tanzania Education Authority and 2 Others, where at the end, the respondent 1 '\ in this appeal, MarwaMwitaMakondo purchased Isango Secondary School which was sold in satisfaction of a decretal amount. Then there was Civil Revision No. 07/2014 filed by The Registered Trustees of Umoja wa Wazazi {TZ) V Sirori Simba Company Limited and 2 others, whereby the applicant prayed for the High Court intervention on the execution of the decree following the objection proceedings filed by The Registered Trustees of Umoja wa Wazazi {TZ). My brother Mwangesi, J let the process of execution go through as he did not find any irregularities to fault the process. The execution process proceeded and the respondent as stated earlier on 29 th June 2014 purchased the disputed property. On 1st September, 2014, the appellant herein filed application No. 51/2014 at the District Land and Housing Tribunal for Tarime at Tarime claiming that the respondent has trespassed into the disputed property. Upon being served with the application, the respondent herein raised a preliminary objection under section 9 of the Civil Procedure Code, Cap 33, R.E. 2002 that the application is res judicata. The trial Chairman upon going through the records was of the firm view that the matter is res judicata since it was already heard and finally determined at the Resident 2 '\ Magistrate's Court of Mara in Civil Application No. 20/2006 and that it was followed by High Court Revision No. 7/2014. Hence, this appeal. When the appeal came for hearing, Mr. Mvungi, learned Counsel for the respondent addressed the Court that; they have gone through the records of proceedings at the DLHT and its resultant ruling and found out that there is an apparent error on face of the record. They have also found out that the trial chairman erred by sustaining the objection and dismissing the application on the ground that the matter is res judicata. He thus told the' Court of their intention not to challenge the appeal and that they concede with the ground of appeal. He further prayed that they should not be subjected to pay costs. Advocate Nasimire who appeared for the appellant was of the view that since Counsel for the respondent did not resist the appeal, the same should be allowed. He prayed for the ruling of DLHT of 24.22.2014 to be quashed and the matter remitted to the DLHT to be heard on merits. He did not pray for costs. As the law requires, for the matter to be res judicata the following four conditions must co-exist. Those conditions are: 3 1) The judicial decision was pronounced by a competent tribunal; 2) Subject matter must be the same or substantively the same with the previous case; 3) Litigating under the same title; and 4) Judicial decision was final. The case of lodraKarsam V. Haram Singh Vol.20 EACA Page 74 which cited with approval in the case Gerald Chuchuba V. Director, Itaga Seminary, (2002) TLR 213 and section 9 of the Civil Procedure Code, Cap 33, R.E. 2002; illustrate the same. As stated earlier, the respondent in this case purchased a house which was sold in the course of realizing a decretal amount. The present appellant was suing the respondent for trespassing into the land that the appellant believe to be her property. There is nothing to suggest that the appellant was previously a party to the previous suit or that the issue of ownership (subject matter) of the present property was conclusively determined between the present parties as one of the pre-requisite for the doctrine of res judicata to exist {the matter directly and substantially in issue in the subsequent suit must have been heard and finally determined in the former suit}. That being the 4 • I ' position therefore, I hasten to agree with Mr. Mvungi and find that ,. Application No. 51/2014 filed by the appellant at the District Land and Housing. Tribunal for Tarime at Tarime is not res judicata. I accordingly quash the decision of the trial Tribunal of 24.10.2014 and order that Application No. 51/2014 should proceed to be heard and determined on merits before another Chairman with competent jurisdiction. I give no order as to costs. Each party shall bear its own. 5