20379 0f 2024 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 20379 OF 2024 (Appeal from the Ruling and order of the District Land and Housing Tribunal for Ilala at Kivukoni by Hon. Kirumbi, Chairman in Application No. 317/2023) SHANI MNUBI FARAHANI(As an administratrix of the Estate of the late MNUBI MRISHO FARAHANI.......... 1st APPELLANT ALLY ISMAIL MNINGA.........................................................2nd APPELLANT VERSUS ACCESS BANK TANZANIA LTD........................................ 1st RESPONDENT MWANAMOSI MOHAMED MSHAMO............................... 2nd RESPONDENT ABDUL RAJAB KAWAMBWA............................................3rd RESPONDENT ALOYCE PAUL MSECHU................................................... 4th RESPONDENT JUDGMENT 14/11/2024 & 29/11/2024 A. MSAFIRI, J. The appellants initially instituted Application No. 317/2023 before the District Land and Housing Tribunal for Ilala (herein the District Tribunal) against the above respondents. When the matter was set before the said District Tribunal, the respondents raised two grounds of preliminary objections that; first, the application is barred in law for being res judicata and second; the application is untenable for want of proper remedy. The objections were argued and finally, the District Tribunal sustained both objections and dismissed the application on ground that the Tribunal had no jurisdiction to entertain it. The appellants aggrieved by the said decision, have lodged the instant appeal on two grounds of appeal namely; 1. The Honourable trial Chairman erred in law by holding that the matter is a Res Judicata. 2. The Honourable trial Chairman erred in law to dismiss the Application without anyjustification whatsoever. The appeal was heard by way of written submissions and the appellants was represented by Mr Charles G. Kaibogora, learned advocate while the 1st respondent was represented by Mr. Humphrey Mwasamboma, learned advocate. The 2nd ,3rd and 4th respondents did not enter appearance and neither filed their written submissions hence the hearing of the appeal proceeded in their absence. Mr Kaibogora seems to consolidate the grounds of appeal as he focused his submissions on the sole issue on whether Application No.317/2023 was res judicata. He submitted that initially the appellant filed Land Application No 346/2021 against the respondents intending to challenge the sale of the suit property described as Plot No. 366 Block 4 situated at Kitunda Mwanagati Area. The suit property was mortgaged by the 4th respondent for the loan by the 1st respondent and that, that fact was unknown to the appellants. Mr Kaibogora argued that the Application No. 346/ 2021 was dismissed for want of prosecution on the date it was set for mention. That after dismissal, the appellants filed fresh suit which is the Application No. 317/2023, with different parties, the 2nd appellant being included. The counsel submitted further that the Application no. 317/2023 was not res judicata and that the Tribunal overlooked the meaning of res judicata as enshrined under the provision of Section 9 of the Civil Procedure Code, Cap 33 R.E 2019 (herein as the CPC). The counsel said that the Land Application No. 346/2021 was not determined on merit by the District Tribunal to its finality, it was dismissed for want of prosecution. To bolster his point, the counsel cited the case of Jansa Mwakipesile (Administrator of the Estate of late Jafari M. Mwakabole vs. Benedictor Mwamwila, Land Appeal No. 52 of 2021. He was of the view that in order for the matter to be considered res judicata, the said matter must be decided to its finality. That in the matter in dispute before the District Tribunal, it was dismissed for non- appearance of both parties. The counsel argued further that the trial Chairman erred in law to dismiss the application without justification as the Tribunal failed to elaborate in deep on how the matter was res judicata. He prayed for the appeal to be allowed, the ruling and order of the District Tribunal to be set aside and the application to proceed on merit. On the reply, Mr Humphrey Mwasamboma submitted that the matter before the District Tribunal was res judicata by virtue of the mandatory provision of the law as provided under Section 9 of the CPC. He argued that it is evident that the matter before the Tribunal had been conclusively determined by a competent Tribunal vide Land Application No. 346 of 2021, where the matter was dismissed for want of prosecution. He pointed that all ingredients of res judicata have been met and the District Tribunal had no jurisdiction to entertain or determine the matter. He concluded that the appeal is misconceived, misplaced and lacks merit and should be dismissed. From the submissions of the parties and the records of the District Tribunal, it is not disputed that the appellants initially instituted Application No.346/2021 in the District Tribunal and that the matter was dismissed for want of prosecution. It is also not disputed that the appellants instituted fresh suit which is Application No. 317/2023 after the dismissal of the previous suit. The argument of the parties is that; the respondent argues that the Application No. 317/2023 is res judicata to Application No. 346/2021 while the appellant's argument is based on two grounds; first, the matter is not res judicata because Application No. 346/2021 was not conclusively determined by the Tribunal but it was dismissed for want of prosecution, and second, the matter was not res judicata as the parties in Application No. 317/2023 are different from the parties in Application No. 346/2021. I shall also determine the grounds of appeal jointly as the parties have done. First, I don't agree with the second argument by the counsel for the appellant that Application No. 317/2023 was different from Application No. 346/2021 because parties were different. It is clear that the parties were the same save for the addition of the 2nd respondent who was not a party in the former suit. Therefore, the parties were the same, save for the addition of the 2nd respondent in the subsequent suit, subject matter was the same, the cause of action was also the same. It is crystal clear that the appellants decided to reinstitute afresh the matter which was dismissed for want of prosecution but this time added the new party, the 2nd appellant. It is trite law that the mere addition of the new party in the subsequent suit does not make the suit different but that is termed as constructive res judicata. Second, it is the argument of the counsel for the appellants that the Application No. 317/2023 was not res judicata simply because the matter was not decided on merit. The issue here is whether the remedy for the circumstances where the suit is dismissed for want of prosecution is to institute a fresh suit. Regulation 11 of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations,2003, provides for the procedure on non- appearance of the parties when the application is fixed for hearing whereby the Application shall have to be dismissed for non-appearance of the applicant. Also Regulation 15 provides for the dismissal of the application for want of prosecution where the application is left unattended for a period of three months. It is my view that in the instant matter, the remedy available was not to institute a fresh suit but to make an application to set aside the dismissal order and upon refusal, then the aggrieved party has further remedy of appealing against that order. Therefore, the appellants have not exhausted the remedies available i.e., first, setting aside the dismissal order for want of prosecution and if the prayer is not granted by the Tribunal, appealing to this court. I find that the District Tribunal did not error when it upheld both preliminary objections raised by the respondent that first, the matter was res judicata, and second, the application was untenable for want of proper remedy. Basing on that, I dismiss the appeal with costs as it lacks merit. A. MSAFIRI JUDGE 29/11/2024