land appeal no88 of 2016 2018 tzhclandd 589 13 april 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 88 OF 2016 (From the Decision of the District Land and Housing Tribunal of Mkuranga District in Application No. 22 of 2014) SHABANI MUSSA MTAMBULANGE (Administator of the estate of the Late MUSSA SHAMTE MTAMBULANGE............................................. APPELLANT VERSUS JUMA SHAMTE MWERA........................................................... RESPONDENT JUDGMENT P.M.KENTE. J: This is an appeal against the decision of the District Land and Housing Tribunal in respect of Land Application No. 22 of 2014. Being the administrator of the estate of the late Mussa Shamte Mtambulange the appellant sued the Respondent, one Juma Shamte Mwera claiming that he (appellant) owns a y\ unsurveyed piece of land measuring (3) three acres located at Ikwiriri. The respondent raised two preliminary objectiorvto the effect that the matter is res judicata and that the appellant has no cause of action against the respondent. The District Land and Housing Tribunal sustained the two points of preliminary objection and dismiss the l appellants claim. Aggrieved by the said decision the Appellant lodged this appeal in this court on four grounds as thus:- 1. That the trial Tribunal committed error by entertaining and upholding two preliminary objections which do not have the effect of finally deciding the application No. 22 of 2014 and any other case before any court of law. 2. That the trial Tribunal committed error by holding that the point of law that the appellant does not have cause of action against the respondent without giving valid reasons. 3. That the trial Tribunal committed error by upholding the plea of res judicata without giving valid reasons. 4. That the trial Tribunal committed error by making an ambiguous order in Application No. 22 of 2014. In this appeal, both parties appeared in persons and the court ordered the appeal to be argued by w ay of written submissions. In support of the grounds of appeal, the appellant argued that the trial Tribunal committed an error by entertaining and upholding two preliminary points of objections which did not have the effect of finally deciding the Application (No. 22 of 2014) and any other Case before any court of law. He argued that the hearing and determination of these objections is not justifiable as they are not 2 valid objections as the plea of res judicata is a doctrine invoked as a defence hence it is not on a pure point of law. He added that the doctrine of res judicata cannot be invoked as a defence in suits under section 8 and 9 of the Civil Procedure Code [Cap 33 R.E. 2002]. The appellant further contended that the trial Tribunal erred by holding that the appellant does not have any cause of action against the respondent. He argued that the Preliminary objection demonstrates a lack of essential ingredient of preliminary objection, whereby the objection requires to be based on a pure point of law and if it is sustained by the court, disposes of the proceedings. It is argued that the question whether a plaint discloses any cause of action must be determined upon perusal of the plaint together with anything attached to it so as to form part of it and upon assumption that any express or implied allegation of facts in it, are true. As to the third ground of appeal, the appellant challenged the trial Tribunal for allegedly upholding the plea of res judicata without giving valid reasons. He argued that the parties to the said two cases 3 are not the same and even that the subject matters are not directly and substantially the same. He also argued that the trial Tribunal committed errors by making an ambiguous order in application No. 22 of 2014. In reply the respondent strongly disputed the appellant’s submission in support of the grounds of appeal. He argued that the appeal has no merit because the matter at hand falls under the ambit of the principle of res judicata as per section 9 of the Civil Procedure Code [Cap 33 R.E. 2002]. He added that the suit premises is the same as the one in a land dispute settled by the High Court in the Misc. Land Appeal No. 98 of 2013 in which it was that found the respondent was the lawful owner of the disputed land by virtue of long time occupation. He insisted that the appellant does not have any cause of action against him. He therefore prayed for the appeal to be dismissed with costs. After carefully reviewing the evidence on record and the submissions made by both parties, I am inclined to agree with the position maintained by the respondent. Indeed the trial tribunal decided the matter basing on the High court decision in Misc. Land Appeal No. 98 of 2013 in which the decision of Ikwiriri ward Tribunal was upheld and the respondent was declared to be the lawful owner of the same suit land by virtue of long time occupation. It is my settled view that the appellant allegation that the matter is not res judicata is misconceived because, going through the record, it is clear that in the present appeal the appellant, Shabani Mussa Mtambulange (an administrator of the estate of the late Mussa Shamte Mtambulange) sued the respondent , Juma Shamte Mwera. In the previous case which was before my sister Mansoor, J. parties were Juma Shamte Mwera and Jafari Mussa Mtambulange. In my view, parties are the same because they are all claiming over what is alleged to be the same clan or family land. Their claim is over the same subject matter and against the same person (the respondent, Juma Shamte Mwera) who has been sued in different legal forums. It is my observation that if at all this court will decide to treat the present matter as if parties are different as alleged by the appellant, this would result may result into into conflicting decisions. This may occur if the subsequent case will be determined differently from 5 what my learned sister Mansoor, J decided in her judgment in Misc. Land Appeal No. 98 of 2013. In my opinion, therefore I find that indeed the matter is res judicata because it was conclusively heard and determined by the High court which is the court of competent jurisdiction, and the parties as stated before, are the same claiming over the same subject matter. In the circumstances, I concur with the reasoning and decision reached by the trial Tribunal by upholding the two preliminary objections that the matter is res judicata and that the appellant has no cause of action against the respondent. For the foregoing reasons, this appeal lacks merit, the decision of the District Land and Housing Tribunal of Mkuranga is sustained. The Appeal is thus dismissed with costs. Dated at Dar es salaam this 13th day of April, 2018 JUDGE 6