SONGA MOSHI WILLA AND OTHERS V SAMWEL MWAMPASHE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY

AT TABORA MISC. LAND APPLICATION NO. 30153 OF 2024 (Arising from Land Application No. 29 of2023 of the District Land and Housing Tribunal of Tabora) 1. SONGA MOSHI WILLA 2. GEOFREY KOLADO 3. PATRICK PAULO APPLICANTS 4. ANYELWISYE A. MWAIBOFU

VERSUS SAMWEL MWAMPASHE............................................................ RESPONDENT

RULING 2&h March and 3rd April 2025 MIRINDO, J.: [1] Before the High Court at Tabora there is an application for leave to appeal out of time by Songa Moshi Willa, Geofrey Kolado, Patrick Paulo, and Anyelwisye A. Mwaibofu against the decision of Tabora District Land and Housing Tribunal. Their initial appeal was dismissed as being time-barred after this Court sustained the respondent's preliminary objection. Following the dismissal of their appeal as time-barred, the four applicants have returned to this Court with the present application for extension of time. The respondent's challenged the competency of this application through a notice of preliminary objection. The objection is that the application is misconceived and amounts to an abuse of court process. 1 [2] At the hearing of the objection, Ms Kaumuliza Margreth David contended that the application is res judicata once this Court had declared the initial appeal as time-barred and the appropriate action is for the applicants to either apply for review of that decision before this Court or approach the Court of Appeal by way of an appeal or a revision. This contention was supported by the Court of Appeal's decision in East African Development Bank v Blueline Enterprises Ltd, Civil Appeal 101 of 2009 (unreported). She added that the application is an abuse of court process as it is likely to prolong litigation and is

a wastage of time. [3] In both the abortive appeal and the instant application, the applicants were represented by advocate Amos Gahise. He gave the background to the dismissal of the applicant's appeal and purportedly questioned the merits of the dismissal order. He rejected the contention that the application is res judicata and attempted to distinguish the instant application from the abortive appeal. He characterized the abortive appeal as being directed against the Tribunal's decision and the instant application as seeking an extension of time. From this distinction he restated that one of the conditions for the application of the principle of res judicata is the test of sameness of issues between two cases and that this test is missing in the instant application. As the principle of resjudicata was inapplicable, there was no question of abuse of the court process. He pleaded with this Court to address itself to substantive justice and dismiss the objection with costs. [4] The main question for consideration is whether issue of limitation of the applicants' appeal formed part of the abortive appeal and forms the basis of the instant of application so as to attract the application of the principle of res judicata enshrined under section 9 2 of the Civil Procedure Code [Cap. 33 R.E. 2019]. The only condition of res judicata disputed between the parties in the instant

application is that of the sameness of issues. The condition of sameness of issues is expressed under section 9 of the Civil Procedure Code as being either "directly and substantially in issue in a former" case. The basic factors for determining the sameness of issues have been summarized in Sarkar, S and Manohar, VR, Sarkar: Code of Civil Procedure, 11th edn, Vol 1, 11th edn, Haryana: Lexis Nexis, 2006, at 118 as follows: Whether a matter was directly and substantially in issue has to be decided: (a) on the pleadings in the former suit, (b) the issue struck therein, and (c) the decision in the suit. Further it depends upon whether a decision on such an issue will materially affect the decision. [5] There is no doubt that in the abortive appeal the applicants were appealing against the Tribunal's decision but the merits of the appeal were not considered. The hearing of the appeal was eclipsed by the respondent's plea of limitation and so the issue of limitation turned out to be the substantial and sole question for consideration. This Court's resolution ended in dismissing the appeal under section 3 (1) of the Law of Limitation Act [Cap. 89 R.E. 2019]. While the appeal was on the merits of Tribunal's decision, the course of appeal turned on the plea of limitation and subsequently the issue of limitation arose and the appeal collapsed after the positive finding of this Court

that the appeal was filed beyond the prescribed period of forty-five days. The question whether the appeal was filed within the prescribed time was thus pronounced upon in the abortive appeal. 3 [6] The next question for consideration is the possibility of a prospective appellant applying for extension of time to appeal subsequent to the dismissal of the appeal as time-barred bearing in mind that the dismissal order was not in respect of an extension of time but against an appeal lodged out of time. A negative answer is found in the cases of Hashim Madongo and Two Others v Minister for Industry and Trade and Two Others [2009] TLR 357; East African Development Bank v Blueline Enterprises Ltd, Civil Appeal 101 of 2009 (unreported), MM Worldwide Trading Company Limitedand Others v National Bank of Commerce Limited (Civil Appeal 258 of 2017) [2021] TZCA 192 and Anderson Mwankusye v Martine Ndunguru (Miscellaneous Land Application 119 of 2020) [2022] TZHC 10530. [7] In the leading case of Hashim Madongo, the High Court (Kalegeya J) struck out the applicant's application for leave to apply for prerogative orders because it was lodged out of time. Subsequently, the appellants recommenced the process for applying for leave to apply for prerogative orders. After several attempts, the appellants obtained leave to file for representative suit (Kimaro J) and then applied for extension of

time to apply for prerogative orders. Kyando J dismissed the application for extension of time on the principle that the appropriate remedy was for the appellants to appeal to the Court of Appeal against the initial decision that struck out their application as time-barred. On appeal to the Court of Appeal, the Court of Appeal upheld this Court's decision in a judgment delivered by Msoffe JA [at pages 362-363]: 4 In the circumstances and as indicated earlier, Kalegeya, J. observed, correctly in our view, that after the appellants realized that they were late in filing an application for prerogative orders they ought to have filed an application for extension of time to apply for the orders. We think, they could have invoked the provisions of Section 14 (1) of The Law of Limitation Act, 1971 in instituting such application. Having failed to do so, there was no further opportunity for them to file the application before Kalegeya, J. In the circumstances, it was inevitable that the application before Kalegeya,J. had to be dismissed. Having said so, we are in agreement with [.... learned Senior State Attorney, that after the application before Kalegeya, J. was dismissed, as it should have been, it was not open to the appellants to go back to the High Court and file the application subject of this appeal. In fact, even the applications before Bubeshi, J. and Kimaro, J.

were untenable in law. We say so because, as far as the High Court was concerned, the issue of time limitation had already been determined by Kalegeya, J. The issue was determined when Kalegeya, J. held that an application for extension of time ought to have been filed prior to filing the application for prerogative orders. In the circumstances, the only remedy available to the appellants after the dismissal of the application was to appeal to the Court of Appeal against the decision of Kalegeya,!. as opined by Kyando,J. Since they did not do so, the matter rests there. [8] The expressions "there was no further opportunity" or "it was not open to the appellants to go back to the High Court" seems to be consistent with the principle of res judicata because the issue of limitation had already been determined Kalegeya J. [9] The rule in Hashim Madongovras applied in East African Development Bank v Blueline Enterprises Ltd, cited above by Ms. David. In East Development Bank, an arbitral award was made in favour of the respondent. The appellant's application before the High Court 5 for an extension of time to file a petition for an order to set aside an arbitral award was marked withdrawn. Later the appellant's petition for an order to set aside the arbitral award was dismissed by this Court (Mandia J) for being time-barred. After unsuccessful attempts to appeal to the Court of

Appeal, the appellant brought an application for extension of time to file a petition to set aside the arbitral award. The High Court (Sheikh J) struck out the appellant's application who then appealed to the Court of Appeal. The respondent's counsel argued that once the High Court had dismissed the petition as being time-barred it was not open for the appellant to apply for enlargement of time before the High Court. The remedy was to appeal. In agreeing with the respondnet, the Court of Appeal re-enunciated the principle that: ...it follows that once an order of dismissal is made under section 3 (1) it is not open to an aggrieved party to go back to the same court and institute an application for extension of time. The remedy is to seek review before the same court or to lodge an appeal or a revision before a higher court. The rationale is simple. That is, as far as the court is concerned the issue of time limitation has been determined. So, a party cannot go back to the same court on the same issue.... It follows that, after the order of dismissal was made by Mandia, J. on 22/6/2007 it was not open to the appellant to go back to the same court and institute the application for extension of time before Sheikh J. In short, the application before Sheikh, J. was res judicata. [10] This principle was equally applied in MM Worldwide Trading Company Limited and Others v National

Bank of Commerce Limited(Civil Appeal 258 of 2017) [2021] TZCA 192 when the Court of Appeal held that a second suit re-instituted in the High Court 6 Commercial Division was barred by the principle of res judicata once the first suit had been dismissed as time-barred. [11] The reasoning behind the principle in Hashim Madongo is rooted in the doctrine of merger in judgment an aspect to the principle of res judicata as was reaffirmed in Nasir v Zavarco PLC\2K25\ UKSC 5 and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd[2013] UKSC 46, para 17. The doctrine of merger in judgment was articulated in a leading English case of King vHoare^AA) 13 M & W 494; 153 ER 206 at page 504: If there be a breach of contract, or wrong done, or any other cause of action by one against another, and judgment be recovered in a court of record, the judgment is a bar to the original cause of action, because it is thereby reduced to a certainty, and the object of the suit attained, so far as it can be at that stage; and it would be useless and vexatious to subject the defendant to another suit for the purpose of obtaining the same result. Hence the legal maxim, 'transit in rem judicatam,' - the cause of action is changed into a matter of record, which is of a higher nature, and the inferior remedy is merged in the higher. This appears to be equally true where there is but one cause of action, whether

it be against a single person or many. The judgment of a court of record changes the nature of that cause of action, and prevents its being the subject of another suit, and the cause of action, being single, cannot afterwards be divided into two. [12] The rationale of the doctrine of merger in judgment was stated in Nasir vZavarco pic (Respondent) [2025] UKSC 5 at paragraph 31: The purpose of the doctrine of merger and the various rules and concepts of res judicata is to support the good administration of justice by promoting finality of litigation and 7 preventing the duplication of actions both in the public interest and in the interests of the parties. [13] In the context of a declaration that the appeal is time-barred, what a prospective appellant loses in a pending appeal is not the opportunity to defend against the plea of limitation rather the opportunity to apply for extension of time subsequent to the declaration that the appeal was time-barred. The merger in judgment implies that once the issue of limitation is pronounced upon in a civil appeal, the opportunity to demonstrate that the delay could have been excused is merged into the dismissal order. The appellant is barred from challenging the dismissal order through an application for extension of time to appeal. [14] From the above review of the legal position, it is clear that this Court is barred from entertaining the instant application for extension of time while the dismissal order still stands as good law. It us up to the applicants to challenge the dismissal order according to law. I am constrained to dismiss the application with costs. DATED at TABORA this 3rd day of April, 2025 FRANK M. MIRINDO

JUDGE COURT: Ruling delivered in chambers this 3rd day of April,2025 in the presence of Advocate Amos Gahise for the applicants and in the presence of Advocate Magreth David 8 for the applicant who also appeared in person. B/Clerk: Mr. Omari Mkongo (SRMA) present. FRANK M. MIRINDO

JUDGE 3/4/2025 COURT: Right of appeal explained. FRANK M. MIRINDO

JUDGE 3/4/2025 9