robert kulwa maganga 2 others vs shija mdeshela mathias michael mpagama 2021 tzhc 9558 24 september 2021

IN THE HIGH COURT OF TANZANIA AT TABORA MISC. LAND CASE APPEAL NO. 2 OF 2020 (Arising from the decision of the District Land and Housing Tribunal in Land Case Appeal No. 55 of 2019 ofNzega District and Original Kitangili Ward Tribunal in Application No. 11 of 2019) ROBERT KULWA MAGANGA............................................ 1stAPPELLANT BEATRICE KULWA MAGANGA.................... 2 APPELLANT MAGANGA KULWA MAGANGA.......................................... 3rdAPPELLANT VERSUS 1st RESPONDENT SHIJA MDESHELA................................... MATHIAS MICHAEL MPAGAMA................ 2nd RESPONDENT JUDGMENT Date of Last Order: 9/ 7/2021 Date of Delivery: 24/9/2021 AMOUR S. KHAMIS, J, This is a second appeal in which Robert Kulwa Maganga, Beatrice Kulwa Maganga and Maganga Kulwa Maganga challenged judgment of the District Land and Housing Tribunal for Nzega in Land Case Appeal No. 55 of 2019. The impugned judgment confirmed decision of the Kitangili Ward Tribunal in Application No. 11 of 2019 which declared Shija Mdeshela and Mathias Michael Mpagama, the respondents herein, as lawful owners of the suit land. i Background of the case as reflected in the records is that the 3rd appellant, Maganga Kulwa Maganga, initiated a land dispute against Shija Mdeshela in the Kitangili Ward Tribunal vide Land Dispute No. 07 of 2018. On 15/03/2018 Maganga Kulwa Maganga lost the case and Shija Mdeshela was declared a lawful owner of the suit land. Geared to enforce Judgement of the Ward Tribunal, Mathias Michael Mpagama moved the District Land and Housing Tribunal for execution of the ward tribunal’s decision. The Application was registered as Misc. Land Application No. 53 of 2018 which resulted to handover of the suit land to the 2nd respondent, Shija Mdeshela. Maganga Kulwa Maganga was aggrieved by the decision and orders given. However, instead of appealing, he filed a fresh application in the ward tribunal namely: Application No. BKK 11 of 2019. This time, he included Robert Kulwa Maganga and Beatrice Kulwa Maganga as co-applicants and Mathias Michael Mpagama and Shija Mdeshela as respondents. The claim centered on the same suit land. At the hearing of the application, the ward tribunal found the application to be res judicata. On appeal to the District Land and Housing Tribunal for Nzega, the decision of the Ward Tribunal was upheld, hence this appeal. The present appeal is centered on four grounds, namely: 1. That, the 1st appellate tribunal erred in law and fact by upheld (sic) the findings of ward tribunal rose(sic) suo motto that land in dispute is the same with the land which has been executed 2 in Misc. Land Application No. 53 of 2019 without accorded(sic) parties/Appellants right to address on this point. 2. That, the District Land and Housing Tribunal erred in law and fact to uphold the decision of ward tribunal while the trial tribunal had no jurisdiction to try the case before it. 3. The 1st appellate tribunal erred in law and facts for uphold (sic) the decision of the trial tribunal which was not legally composed. 4. The 1st appellate tribunal erred in law to uphold the decision of ward tribunal that parties herein were the same with those in land case no. 11 of 2019. Before me both sides were unpresented and the appeal was argued by way of written submissions. Submitting on the first ground of the appeal, the appellants contended that it was wrong for the tribunal to raise an issue of res-judicata on its own and base its decision on it without summoning the parties to address it on the same. The appellants further contended that, when a Court raises an issue for determination suo motto, it must afford parties an opportunity to be heard on the issue(s) so raised, and that failure to do so renders decision reached a nullity for having violated the principle of natural justice (right to be heard). To reinforce their arguments, the appellants cited the cases of Mbeya Rukwa Auto Parts and Transport Ltd vs Jestina George Mwakyoma, Civil Appeal No. 45 of 2002 and Margwe 3 Erro, Benjamin Margwe & Peter Margwe vs Moshi Bahalula, Civil Appeal No. Ill of 2014 (both unreported). As to the second ground of appeal, the appellants contended that, the Ward Tribunal entertained the matter without having jurisdiction. They submitted that, the pecuniary jurisdiction of the Ward Tribunal was limited to properties valued at Three Million Shillings only. Further the appellants, contended that value of the suit land is more than Tzs. Three Million to which the ward tribunal lacked jurisdiction to entertain. In support of their argument, the appellants cited the case of Shyam Thanki and Others vs New Palace Hotel (1972) HCD No. 92 and Fanuel Mantiri vs Herman Mantiri Ngunda and Two Others (1995) TLR 155. On the 3rd ground of appeal, the appellants contended that, the ward tribunal was not properly composed interms of Section 11 of the Land Disputes Courts Act, Cap 216, R.E 2019 and that the tribunal’s judgment was only signed by two members. Submitting on the last ground of appeal, the appellants stated that, the ward tribunal was wrong in dismissing the dispute on ground of res-judicata allegedly because parties in Land Case No. 11/2019 were different from those in Misc. Application No. 53 of 2018. They prayed for an order of reversal of the decision of the tribunal and for the appeal to be allowed with costs. 4 On the other hand, the respondents vehemently opposed the appeal on the ground that the appellants were just misleading the Court as were given a right to be heard as reflected at pages 6 and 7 of the typed judgment. On the second ground of appeal, the respondents stated that, the value of the land in dispute was Three Million Shillings which was well within the pecuniary jurisdiction of the ward tribunal; and maintained that an allegation on lack of jurisdiction was misconceived. On the third ground, the respondents asserted that, composition of the trial tribunal at a time of hearing was not indicated, but that despite of the omission, it was not fatal to the proceedings. Lastly, the respondents submitted that the matter was res- judicata as correctly decided by the ward tribunal because parties were the same litigating on the same land in which the respondent was declared the rightful owner. Having heard the parties rival submissions and upon review of the original records, I am of the view that from their nature, the first, third and fourth grounds of appeal are intertwined and thus will be tackled jointly. The second ground of appeal will be separately addressed. Starting with the second ground of appeal, it is a settled principle of law, that jurisdiction is a creature of statutes. Courts and tribunals are expected before entertaining any matter before it to satisfy itself as to whether it has jurisdiction or not. 5 In determining whether the Court has jurisdiction or not, two elements are to be considered; One, is the cause of action as gathered from facts of the case pleaded by the plaintiff and two, the reliefs) that are sought in the claim. With regard to the case at hand, jurisdiction of the Ward Tribunal is provided for under the Land Disputes Courts Act, Cap. 2016, R.E 2019. Under Section 10 thereof, it is provided that; Each Ward Tribunal established under the Ward Tribunals Act shall be a Court for the purpose of this Act, the Land Act and the Village Land Act and shall have jurisdiction and powers in relation to the area in which it is established. ” Section 15 of the Land Disputes Courts Acts provides for pecuniary jurisdiction of ward tribunals. It states that: “15. Notwithstanding the provisions of Section 10 of the Ward Tribunals Act, the jurisdiction of the Tribunal shall in all proceedings of a civil nature relating to land be limited to the disputed land or property valued at three million shillings.* Records in the present case show that the parties’ dispute was presented in the ward tribunal by the appellants. Records further indicate that the ward tribunal was convinced by the appellant’s pleadings and reliefs sought and confirmed that the dispute was within its pecuniary jurisdiction as per Section 15 of the Land Disputes Courts Act (Supra). 6 Having perused the records, I noted that no proof whatsover was presented by the appellants in the trial ward tribunal to prove that the subject matter exceeded a value of Tshs. 3, 000,000/=. In this regard, I find this ground of appeal to be an afterthought and thus lacks merits. As to the remaining amalgamated grounds of appeal, the appellant is complaining that the Chairperson misdirected himself in holding that the matter before him was res judicata. The issue for determination is whether the suit before the trial tribunal was barred by the doctrine of res judicata. It was the appellant’s argument that, the District Tribunal’s Chairman was wrong in deciding that the matter was res judicata while parties in Land Dispute No. 07/2018 were different from those in the later case, Land Dispute No. BAKK 11/2019. The principle of res-judicata is embodied in Section 9 of the Civil Procedure Code, Cap 33, R.E 2019 which stipulates that: - “No court shall try any suit or issue 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 them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.” 7 The law is settled and clear on the applicability of the principle of Res judicata. It is trite law that for the doctrine to apply, the following conditions must be proved, namely: 1. The former suit must have been between the same litigating parties or between parties under whom they or any of them claim 2. The subject matter directly and substantially in issue in the subsequent suit must be the same matter which was directly and substantially in issue in the former suit either actually or constructively 3. The party in the subsequent suit must have litigated under the same tittle in the former suit 4. The matter must have been heard and finally decided 5. That, the former suit must have been decided by a court of competent jurisdiction, its applicability makes conclusive a final judgment between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit. In the case of Paniel Lotha vs Tanaki and Others [2003] TLR 312, the Court of Appeal held that; "... the object of res judicata is to bar the multiplicity of suits and guarantee finality to litigations. It makes 8 conclusive a final judgment between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit” Records available in the present case show that in the year 2018, the 3rd respondent, Kulwa Maganga, filed Land Dispute No. 07/2018 at Kitangili Ward tribunal against the 1st respondent, Shija Mdeshela. He lost the case and did not appeal in time. Subsequently, he filed Misc. Application No. 66 of 2018 in the District Land and Housing Tribunal for Nzega seeking for an enlargement of time to file an appeal. The application was rejected for lack of proper legal foundation. Records further show that, the 3rd appellant was not satisfied, and thus filed another case in the Kitangili Ward Tribunal, Dispute No. BAKK 11/2019 now joining Robert Kulwa Maganga and Beatrice Kulwa Maganga as fellow complainants against Shija Mdeshela and Mathias Michael Mpagama. The claim was centred on the same land that was a subject matter in Land Dispute No. 07/2018. The appellant’s contention is that, Robert Kulwa Maganga, Beatrice Kulwa Maganga and Mathias Michael Mpagama were not parties in Dispute No. 07/2018 and thus not privy to that suit. However, despite of not being parties to the original land dispute No. 7/2018, the subject matter in the two suits is the same and parties are litigating under the same title. For that reason, I join hands with the tribunals below that the matter was res judicata. 9 In the upshot, I find nothing to fault the findings and decision of the District Land and Housing Tribunal for Nzega in Land Appeal No. 55 of 2019. Consequently I proceed to dismiss the appeal for Judgment delivered in chambers in the presence of 1st 2nd appellants, 1st, 2nd respondents and in absence of 3rd appellant who was reported dead. io