rehema ally kayeka vs maulid yonas kayema and 2 others 2022 tzhc 15826 30 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO CIVIL APPEAL NO. 53 OF 2019 (Arising from an Appiication No. 97of2015 ofthe District Land and Housing Tribunaifor Kiiombero/Uianga, atIfakara) REHEMA ALLY KAYEKA APPELLANT VERSUS 1. MAULID YONAS KAYEMA RESPONDENT 2. ZAINABU RASHID KAYEKA 2^° RESPONDENT 3. HADI3A RASHID KAYEKA 3^° RESPONDENT JUDGMENT 30'*^ Nov, 2022 CHABA,3. This Appeal involves a dispute over a parcel of land located at Kichangani area at Mkula Village within Kilombero District. The brief historical background of the matter is that, on November, 2005, the 2"^ and the respondents jointly, hired their 1 V4 acres of a farm land situated at Mkula Kichangani area within Kilombero District for a period up to the year 2014 for TZS. 85,000/= and TZS. 130,000/= respectively, j to the appellant in this suit. On 4^'' October, 2007, the B'"^ respondent sold % acres of her farm land to the 1^ respondent, who has been using the same without any problems until in the year 2014 and 2015 when Page 1 of 13 the appellant invaded into the 1 respondent's sugarcane farrr land and harvested all the crops claiming that it belongs to her. It is on record that, the fracas between the parties lastly forced the 1 respondent herein (Maulid Yonas Kayema / Maulid Yonas Kayeka according to the records) to institute a land matter before the DLHT for Kilombero/Ulanga at Ifakara against the appellant (Rehema Ally Kayeka), 2"^ respondent (Zainabu Rashid Kayeka) and the 3'"'^ respondent (Hadija Rashid Kayeka) for trespassing over his; suit land wherein it was registered and marked as Land Application No. 97 of 2015. In essence, the 1^ respondent / applicant at trial prayed for the following reliefs: - One, that the appellant, 2"^ and 3™rd respondent be forced to pay TZS. 3,500,000 being the refund of the harvested sugarcane and destroyed cane crops. Two, declaration that the 1 74 and 74 acres of land are in rightful ownership of the appellant. Three, the payment of TZS. 2,500,000/= being compensation and damage for loss of profit and inconvenience to be paid to the appellant. Four, costs of the application be provided by the 1^^ respondent, and five, any reliefs as the Honourable Trial Tribunal could deem fit, just and proper to grant. Page 2 of 13 After a full trial, the trial DLHT declared among other orders that, the respondent (Maulid Yonas Kayeka) who featured as the applicant was the lawful owner of the disputed parcel of land. i Dissatisfied with the decision of the trial DLHT, the appellant / respondent (Rehema Ally Kayeka) preferred an appeal before this court. In her memorandum of appeal, the appellant presented six (6) grounds of complaints as follows: - i j 1. That, the honourable chairman of the District Land and Housing Tribunal erred in iaw in allowing Land Application No. 97 of 2015, declaring the applicant therein to be a lawful purchaser and tenaht(s) of the respective premises including the respondent's 2 V2 a^cres \ which in Probate Cause No. 10 of 2011, they were declared to be owned by the Applicant herein. 2. That, in the Probate Cause No. 10 of2011 at the Mang'uia Primary Court in Kiiombero District before one iady Magistrate £ Komba it was finalized as hereby quoted "...hivyo, kwa viie Said Luhecha ndiye aiiyempa shamba Aii Kiyeka wakati baba wa mwombaji akiwa maiinyi, na baba pamoja na bind zake(HADIJA RASHIDIYUSUFU KIYEKA NA MWENZIE) waiifuata nyuma kumfuata Aii Kiyeka wakiwa na shahidi wao wa upande wa mjibu pingamizi, shamba hiii iinabaki mikononi mwa mtoto wa ALI KIYEKA (the appellant herein above)ambaye ndiye mtoa pingamizi). Page 3 of 13 3. That, no appeal was preferred, and this decision of the Mang'uia Primary Court was adduced and tendered in evidence before the honourable chairman to prove that the subject matter in Application No. 97of2015 was already decided in Mirathi Cause No. 10 of2011. 4. That, the honourable District Land and Housing Tribunal's Chairman \ \ and the prudent wise assessors erred in iaw in allowing the case at hand and concluded that the case was proved on balance of probabilities without the evidence of the alleged tenancy land agreement which couid prove as to whether the disputed iand was legally attained by the respondents. 5. That, the tribunal erred in iaw and fact in ordering the applicant a lawful purchaser and tenant of the respective premises while ihere was a contradiction that, the Applicant has been renting a suit premise from the 2P^ and 5T^ respondent's ever since 2005. 6. That, the the appeal is in time as the judgment of the Kiiombero/Uianga District Land and Housing Tribunal was delivered on 12/2/2019 and the judgment was signed by the chairman on 19/3/2019. At the hearing of the appeal, parties appeared in persons and unrepresented. By consensus, both parties agreed to dispose of the appeal by way of written submissions. Arguing in support of the appeal, the appellant submitted that, she is the lawful inheritant of the probate suit land, but the same was Page 4 of 13 )rd St unlawfully hired by the and respondents to the respondent. According to her, the 2"^ and rd respondents had no pawer and authority to hire the said 1 Vi acres of land to any person inc uding the respondent as the 2"^ and respondents are not legal heiress of the probate property in question. | I ! She went on submitting that, when she was immature to acknowledge that the land at hand was her legal property, on 10/11/2005, the 2"^ and 3^^ respondents hired it to the 1^ respondent claiming that the parcel land belongs to them. She further averred that the parcel of land that was hired on 10/11/2005 was with no:reason(s) listed by the 3^^ respondent in Shauri la Mirathi filed in 2017 before the Mang'ula Primary Court claiming to be a probate property of the late Rashid Yusufu Kayeka. She continued to argue that, the institution of Mirathi Case No. 10 of 2011 at Mang'ula Primary Court intending to apply for administration of the estates of the late Rashid Yusufu Kayeka by the 3^^ respondent, was not bad so long as he was her natural father, but the inclusion of 1 i the said 1 Vi acres of Ally Rashid Kayeka (the late natural father of the appellant), is what instigated the case at hand as the 3^^ respondent Page 5 of 13 lacks power and authority to hire the 1 Vi acres of sugarcane farm land to the respondent. She concluded by stressing that, the 1 ,2 and 3 respondents are unlawfully intending to rob the land in question, and that this court i should not entertain it, but rather should allow this appeal 'and hand over the said 1 Vi acres of land to the appellant so as to allow! justice to ! I prevail as the appellant has been stopped from harvesting the sugarcane. Responding to the appellant's submission, the 1 respondent accentuated that, this case stemmed from the estates of the deceased Rashid Yusufu Kayeka / Kiyeka the real father of the 2 and 3>rd respondents. After the death of the said Rashid Yusufu Kayeka, his daughter (the 3''^ respondent) was legally appointed as an Administrator of the estate of the late Rashid Yusufu Kayeka by a lawful court. He hired part of the said shamba in question and later, the 2"^ respondent in agreement with the 3'"^ respondent sold to him the alleged hired parcel of land. He concluded by stating that, the appellant is just trying to rob the land in question, hence prayed this court to dismiss the appeal with costs. Page 6 of 13 On her part, the 3^^ respondent in her reply submitted that, the appellant without any justifiable reasons is trying to derr and their father's land illegally and she has totally failed to submit proof of her claim, even before the lower court. She went on submitting that, the land in dispute belongs to their late (deceased) father ope Rashid j Yusufu Kayeka and the administratrix of his estate is none other than herself, being legally appointed by the court of law. She ended to submit by praying the court to dismiss the present appeal with costs. Having summarised the rival submissions advanced by the parties and upon carefully gone through the records and the 'espective pleadings, I have observed that, all parties addressed this court through their respective submissions in general terms instead of directing their minds on the grounds of appeal raised by the appellant. Of cpurse, the reasons are obvious. Parties are lay persons and pleadings were drawn by other persons and filed by the parties themselves. Reverting to the grounds of appeal, the first three grounds of appeal are based on evidence pertaining to Probate Case No. 10 of 2011 i which declared the applicant herein to be the lawful ownLr of the disputed land, while the fourth and fifth grounds are based on recording and analysis of evidence. The sixth ground which was not argued at all. Page 7 of 13 touches the competence of the appeal at hand that, the sa me is not time barred. In an attempt to answer the appellants grounds of appe; I, I find it apt to commence with the first three grounds of appeal which touches on the issue of evidence in respect of Probate Case No. 10 ofi2011. On reviewing the court records and the parties' pleadings, the following are my observations: - First of all, it is evident from the court records that, the appellant herein entered a caveat against the act of listing the alleged 2 Vi acres as property of the late Rashid Yusufu Kayeka in the Probate Ca se No. 10 of 2011. Secondly, after hearing of the caveat, the Mang'ula Primary I Court declared that, the parcel of land which associated with thie probate i matter did belong to the caveator i.e., the applicant herein, Rehema Ally Kayeka. Third, the decision of the Mang'ula Primary Court was never appealed against, and therefore it has remained unchallenged to date, hence the reasons behind this ground by the appellant is that ownership of the suit land had already been determined by the Mang'ula Primary Court. Based on the arguments of parties and the records at hand, it is clear on the face of the records that, there was a dispute between Page 8 of 13 Rehema Ally Kayeka and one Hadija Yusufu Kayeka which was ended by a declaration that Rehema Ally Kayeka was (is) a lawful ow ner of the disputed suit land. The said dispute was heard and determined by the Primary Court at Mang'ula, in Probate Case No. 10 of 2011. It involved the same land which is in dispute between the 1^ respondent and the appellant. The decision in respect of ownership of the parcel of land that was pronounced by the Primary Court has remained unchallenged to date. In my considered view, if at all this decision has remained unchallenged and unchanged as well, then it is not right to re-open the hearing on the ownership regarding the same subject matter between basically the same parties. Such subsequent determination is prohibited by the provision of section 9 of the Civil Procedure Code,[Cap. 33 R. E, 2019] for being res judicata. The law provides that: "No court shall try any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of the claim litigating under the same tide in a court competent to try such subsequent suit or the suit in which such issue has been subsequently Page 9 of 13 raised and has been heard and finally decided by such court". From the wording of the above provision of the law and the facts garnered from the records, a matter that has been adjudicated by a competent court cannot be pursued further by the same partibs. In this regard, the subsequent determination as hinted above cannot stand. Thus, the re-hearing of the matter between the applicant and the respondents in Land Application No. 97 of 2015 before the District Land ! and Housing Tribunal for Kilombero/Ulanga at Ifakara no doubt constitutes, and it is covered by the principle of res judicata. At this juncture, I wish to mention the reasons for the application of the doctrine of res judicata. First, there must be an end to litigation where the parties are the same or their privies/ proxies and the matter involves the same cause of action or matter. Second, parties ishould be i relieved from being taken to court on the same cause of action and by the same parties or their relatives. Third, the parties shou d respect judicial decisions and find them to be conclusive. Fourth, the parties should be protected from persons who just want to spend their time in courts for the same dispute and Fifth, the doctrine protects multiplicity of suits. ^ Page 10 of 13 As earlier on stated above, in the case at hand the appellant herein was the caveator / objector in the Probate Cause No. 10 of 2011 and whereas the 3'^^ respondent (Hadija Rashid Kayeka) was the applicant. As the record exposes, the case between these two parties was finally and conclusively determined by the Mang'ula Primary court. ! In that case, the major contention based on the question of ownership of the deceased's parcel of land, which is also the subject of discussion in this case. In the former case, the land in dispute was given to the appellant on 24/8/2012 as her right for inheritance. In that case, neither of the parties preferred an appeal to the higher court. Unfortunately, after passage or expiry of three years, the 11 St respondent herein, went to the DLHT for Kilombero/Ulanga at Ifakara on 30/12/2015 to initiate another suit based on the same subject matter which is the parcel of land in disputes. Based on the principle of res judicata, I am of the view that, so long as the land in dispute was allocated to the appellant as her inheritance from her father in the probate cause, the respondents were not supposed to claim ownership again. In reaching this conclusion, I am persuaded by the decision in the case of Zaruki Mbokemize Vs. Swaibu Omaru and Francis AdoEph [1988] TLR 160 where the Court observed that: Page 11 of 13 "/ would, on evidence, respectfully agree with the concurrent finding by both courts below that case filed by the appellant against the respondents was res judicata. The matter had come before the same Primary Court In 1977, and disposed of, after being instituted by the guardian of the appellant, Mahfedha, on his behalf. The Issue of the ownership of the \ I I land in dispute had been finally decided up In that earlier I ! case. It was found to belong to Mahmud, who had sold It to the respondents, and upon failure by Malifedha to redeem It I on behalf of the appellant, the shamba became the property of the respondents. The present case. In my view, cannot be said to have been based on different right or different principles oflaw from those involved In the earlier case. In similar vein, the present case seeks declaration of ownership over the land which was previously allocated to the appellant and here was no further decision to challenge that allocation. The only proper recourse in these circumstances was challenging the decision in the Probate Cause No. 10 of 2011 by the party who was dissatisfied. The decision of the Primary Court at Mang'ula ought to be i challenged through either in appeal or revision and not to institute a Page 12 of 13 fresh case over the same subject matter against basically the same parties before the District Land and Housing Tribunal. From the above observations, and to the extent of my indings, I see no need to labour on the remaining two grounds of appeal. Since the appellant's appeal have merit, I allow the appeal and nullify the proceedings of the District Land and Housing Tribunal and set aside any orders sprang from such proceedings for being res judicata. In the final event, the decision in the former suit. Probate Cause No. 10 of 2011 before the Mang'ula Primary Court prevails In other words, the decision of the Primary Court at Mangula is hereby sustained. Due to the nature of the matter itself, I make no order as to costs. I so order. DATED at MOROGORO this 30^^ day of November, 2022. M. J. JUDGE 30/11/2022 Page 13 of 13