sunga ngayaki and 2 others vs lyaki gimbili 2021 tzhc 7532 15 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF MWANZA) AT MWANZA CIVIL APPEAL NO. 9 OF 2021 (Appeal from the judgment of the District Land and Housing Tribunal for Mwanza at Mwanza (Phillip, Chairperson) in Application No. 671 of 2017 dated 13fh of November, 2020) SUNGA NGAYAKI..................................................................... 1stAPPELLANT MUNDI MLUBI.......................................................................... 2ndAPPELLANT LUCAS SHILEKA........................................................................3rdAPPELLANT VERSUS LYAKI GIMBILI....................................................... RESPONDENT JUDGMENT 28h October, & 18h November, 2021 ISMAIL, J. These appeal proceedings arise from a dispute for of a piece of land that the respondent claims to be the lawful owner of. The suit land, estimated to measure 12 hectares, is located at Mwagimagi Village, Misungwi District. This land was part of 90 acres bequeathed to the respondent, along with other beneficiaries, by her late father, Gimbile Magoso. The respondent's contention in the trial proceedings was that the disputed land 1 was once leased to the applicants for two years, during which they were allowed to cultivate some crops on it. It was further alleged that the respondent attempted to recover the disputed land by requesting them to vacate but to no avail. The refusal was notwithstanding the fact that the two-year period had already expired. It is this refusal that prompted the respondent's decision to enlist the assistance of the District Land and Housing Tribunal (DLHT) for Mwanza at Mwanza, before which a declaratory order was prayed. The order was to the effect that the respondent is the lawful owner of the suit plot. The appellants contested the application, arguing that they severally acquired their respective pieces of land through a sale, done by the children of the late Gimbile Magoso. In the end, the trial Chairperson of the DLHT was convinced that the suit land belongs to the respondent. Consequently, a declaration was issued to the effect that the entire 12-acre (hector?) land belonged to the respondent. The DLHT went ahead and ordered the respondents to vacate from the suit land immediately after delivery of the judgment. This decision irked the appellants. Enlisting the services of Mr. Reagan Charles, learned counsel, of LURD Advocates, an appeal has been preferred 2 to this Court. Five grounds of appeal have been preferred as reproduced hereunder: 1. The chairman erred in law by failing to answer and twisting the issue numbered (ii) concerning the appellants' alleged hiring of the disputed land from the respondent. 2. The chairman erred in law by failing to consider that the respondent must have proved the cause of action contained in her application. 3. The chairman erred in law by judging that the respondent is the legal owner ofthe disputed land white the evidence on record shows apparently that even if the said administrator of the respondent's deceased father had in fact purported distributed the disputed land to the respondent, that purported distributed was unlawful as the said administer had no such land to distribute as the issue of ownership of this disputed land between the appellants and that administrator had already been determined in favour of the appellants. 4. The chairman erred in law by not analyzing the evidence of PW2, PW3 and PW4 and for not analyzing some of PW1 's statements. 5. The chairman erred in law by determining the question ofownership between the appellants and the respondent while it was res judicata. 3 Mr. Reagan Charles, who represented the appellants in this case, began his onslaught with ground four of the appeal. He imputed omission on the part of the DLHT, to evaluate the testimony of PW2, PW3, PW4 and PWl's statements. With respect to the latter, Mr. Charles' particular concern relates to the statement that appears at page 2, in which the respondent was allegedly quoted as saying that the land was never leased to the appellants. Instead, the same had been trespassed onto. Counsel argued that this statement negated the fact that the cause of action was a lease. He argued that the net effect of a thorough analysis of the testimony would be that the appellants were in possession of the land long before the respondent's father's alleged ownership; that the dispute arose after the demise of the respondent's father, and that his death never disturbed the appellants' possession; that the latest trial proceedings were in respect of the same parties, the result being that PW2 lost all the cases that related to ownership of the land; that distribution of the land by PW2 was done in defiance of the court decisions which declared the appellants as lawful owners of the suit land. Mr. Charles contended that the available remedy is for this Court to re­ evaluate the evidence and come up with its own conclusion, consistent with what was held in Ndinzu Ngasa v. Malisa Magasha [1999] TLR 202. Submitting in support of the first ground of appeal, the appellants' counsel took an exception to the way the first issue was framed in the trial proceedings. The argument is that the said issue was wrongly framed or it ought not to have been framed at all. The appellants' argument is being that the respondent, the applicant in the trial proceedings, ought to have proved what she alleged and not to merely oppose what the appellants contended. Such practice, learned counsel argued, was in accordance with section 22 of Cap. 33 and regulations 3 (1), 2 (c) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2002. In this case, Mr. Charles argued, the 2nd issue was rightly framed but its resolution treated as if the cause of action in the dispute was introduced by the appellants while in fact it was not. He argued that this error is found at page 7 of the judgment. It was his argument had the DLHT done a proper construction of the issue, she would have arrived at a conclusion that the respondent failed to prove his case. Counsel's since the contention was premised on the allegation that the lease in respect of the disputed land 5 expired. He took the view that the answer to the said issue would be in the negative, thereby resulting in the respondent failing to prove her case. Counsel fortified his argument by citing the cases of Fatuma Idha Saium v. Khamis Said [2004] TLR 423; and Makori J.B. Wassaga v. Joshua Mwaikambo & Another, both of which held that parties are bound by their pleadings. Regarding ground two of the appeal, the argument by Mr. Charles is that the DLHT ought to have dismissed the application on the basis that it contained a statement disproving the allegation contained in the respondent's own application. Counsel argued that Order VI rule 15 (1) and (2) of Cap. 33 requires that facts contained in the pleading be verified as true or believed to be true. He wondered why, if the respondent knew that the disputed land was hired to the appellants and the latter had refused to vacate, she denied this contention when she was testifying in the trial proceedings. Likening the verification to a statutory declaration, the same binds their makers and that, in this case, the DLHT ought to have considered it and dismissed the application. With regards to ground three, the contention by Mr. Charles is that, PW2, PW3 and PW4 admitted that there had been proceedings which were 6 preferred by and against PW2, as the administrator of the estate of the late Gimbile Magoso, and that he lost in all of the said proceedings. He argued that, since the proceedings related to the land in dispute in the instant proceedings, then the DLHT ought to have held that the disputed land which was a subject of the previous proceedings belong to the appellants. Mr. Charles argued that the testimony of DW2, DW3 and DW4 was in sync with that of PW2 on the existence of land disputes involving the same piece of land, and that the appellants won each of the said contests. He argued that the question of ownership was finally determined in the appellant's favour, meaning that the administrator of the estate, PW2, did not have any land to distribute to the beneficiaries of the deceased's estate. He referred the Court to the decision in Farah Mohamed v. Fatuma Abdallah [1992] TLR 205, in which it was held that any one who has no legal title to land cannot pass good title to another. Counsel urged the Court to be mindful of section 3 of the Civil Procedure Code, Cap. 33 R.E. 2019 which provides that a decree determines the rights of the parties with regards to all matters in controversy. In his submission on ground five, Mr. Charles contended that the testimony of PW1 and PW2 was enough to alarm the Chairperson of the 7 DLHT to realize that the matter she was presiding over was res judicata. This is in view of the fact that the respondent was claiming through her late father Gimbile Magoso, the same was the administrator of the estate of the respondent's father's estate i.e. PW2 did. He contended that PW2, under whom the respondent was claiming, filed matters in the Village Land Council and the Ward Tribunal for claim of the same piece of land. Counsel argued that those matters were finally and conclusively determined by declaring the appellants owners of the suit land. He further argued that the Village Land Council and the Ward Tribunal were competent courts in this respect, and that their decisions were finally executed by the DLHT. Mr. Charles buttressed this argument by citing the decision in Gerald Chuchuba k. Rector Itaga Seminary [2002] TLR 2013, which barred the institution of matters which by their own character are res judicata. The appellants prayed that the appeal be allowed with costs. The respondent has the view that the appeal is not meritorious. Submitting on ground four of the appeal, Ms. Kundy Nyenji, learned counsel, argued that the trial chairperson correctly analyzed the evidence of the respondent as found in pages 2, 3, 6 and 7 of the judgment. She argued that the testimony adduced by PW1, PW2, PW3 and PW4 pointed out to the fact that the disputed land was, at some point in time, let to a Mzee Kang'ondi but not a piece of it was sold to the appellants or at all. Counsel contended that, while the appellants claimed that they purchased the said land from Malwa Gimbile and Kang'ondi Ngimbile, no sale agreement was submitted as a proof for the alleged sale. The alleged seller of the suit land was not called to testify either, contended Ms. Nyenji. Referring to section 64 (1) (a) and (b) of the Land Act, Cap. 113 R.E. 2019, the respondent's counsel argued that, such provision requires that disposition of land must be in writing and signed by both parties. In the absence of all that, Ms. Nyenji prayed that the ground of appeal be dismissed for lacking in merit. With respect to ground one, Ms. Nyenji leapt to the trial chairperson's defence, arguing that issues raised were properly dealt with. She argued that discussion of the issues was broadened, considering the fact that the appellants' contention was that the disputed land was first leased to appellants before it was finally disposed of to them. The learned advocate argued that the judgment bears a testimony that these issues were brought to the fore but it came out that the appellants failed to prove that they hired the disputed land. She was of the view that such failure translated into the appellants' failure to discharge the burden of proof, consistent with the provisions of section 112 of the Evidence Act, Cap. 6 R.E. 2019. She took the view that this ground was also barren, on account of the fact that the appellants failed to prove that they hired the said land from Kang'ondi and Malwa Ngimbile. Submitting in rebuttal to grounds two and three, the respondent's contention is that, evidence which was adduced was satisfactory to prove that she is the owner of the suit land. She argued that this was done through Form No. VI which was admitted as exhibit API. The respondent further contended that, having done that, the respondent's case was sealed, leaving the appellants with a duty of proving that the respondent is not the owner of the suit land, consistent with the requirement of section 119 of Cap. 6 which places the burden of proof that a person is not the owner of a thing which is in contention if the person who asserts that he is not owner. Ms. Nyenji maintained that the DHLT's holding that the respondent is the lawful owner of the suit land was the right call. She argued that in the circumstances where the respondent failed to tender any documentary evidence which would justify the appellants' claim that they bought the piece of land from the respondent's siblings, there would be no other conclusion in that respect. She argued that, if the contention that the appellants bought io the land from Malwa Ngimbile and Kang'ondi Ngimbile is anything to go by, then it is quite clear that the latter had their own land that they inherited from the father Ngimbile Magoso. With respect to ground five, the respondent's contention is that the question of res judicata does not arise as no former suit between the same parties was ever instituted. Counsel argued that, other than the proceedings that bred the instant appeal, there was no other suit between the parties on the same subject matter. She urged the Court to dismiss the appeal with costs. From these contending submissions, the broad question to be resolved is whether the appeal has any merit. Noting that the question of resjudicata also determines the question of jurisdiction, determination of the appeal will begin with ground five of the appeal. In this ground of appeal, the appellants contend that the matter ought to have been struck out for being resjudicata. This is in view of the fact that there have been previous proceedings which involved the appellants and Sekwa Busumabu, an administrator of the estate of the late Ngimbile Magoso, from which the land in dispute was allegedly bequeathed to the respondent. The respondent is adamant that ingredients of res judicata, as enshrined in section 9 of the CPC, do not bed well with 11 the appellants' contention. Put simply, there is not one point at which the respondent sued or was sued by the appellants and a final determination made in respect thereof. The doctrine of res-judicata is derived from a Latin term to mean a "thing decided or a matter alreadyjudged. "In legal parlance, it is also known to as claim preclusion for the simple reason that, where it is invoked, it precludes re-litigation of a claim between the same parties (See: John Masiaga Babere v. Musoma Textile Mills (T) Ltd, HC-Misc. Civil Application No. 140 of 2019 (Mwanza-unreported)). The court practice requires that, where such doctrine is brought into play and pleaded as a defence, evidence must be received to establish the soundness or otherwise of the said defence. This position was underscored in Karia & Another k Attorney General & Others [2005] 1 E.A. 83, wherein it was held: "Normally, the proper practice, where resjudicata is pleaded as a defence, the trial court should, where the issue is contested, try that issue and receive some evidence to establish the subject matter has been litigated upon between the same parties, or parties through whom they claim." As both counsel acknowledge through their respective submissions, the doctrine of res judicata has found a home in our legal system, through 12 an enactment of a provision in the CPC. Such provision is section 9, the applicability of which has been submitted on by counsel. It implies, therefore, that a party's success in invoking the doctrine is dependent on the establishment of existence of key conditions enshrined in the said provision. These are: (i) There must be records to show that the judicial decision was pronounced by a court of competent jurisdiction; (ii) That the subject matter and the issues decided were the same or substantially the same issues in the subsequent suit; (iii) That the judicial decision was final; and (iv) hat it was in respect of the same parties litigating under the same title. See: Mulla, the Code of Civil Procedure, 16th Edn., Vol. I at p. 173; Esso Tanzania Limited v. Deusdedit Rwebandiza Kaijage [1990] TLR 102 (CA); Umoja Garage v. NBC Holding Corporation [2003] TLR 339 (CA); Badugu Ginning Co. Ltd v. CRDB Bank PLC & Others, CAT-Civil Appeal No. 265 of 2019 (unreported). The view held by Ms. Nyenji is that at no point in time were the parties, as they feature in these proceedings, in any contest for the suit land. This 13 contention has not been seriously opposed to by Mr. Charles. His argument is that, proceedings by or against PW2 were in relation to the same subject matter and were concluded in the appellants' favour. This assertion was intended to convince the Court that the respondent had a legal interest in the property, she being the beneficiary of the estate of the late Ngimbile Magoso, administered by PW2. Determination of the contention raised by Mr. Charles compelled me to leaf through the record of proceedings in the DLHT. I came across Exhibits DD1, DD2, DI, D3, and D4. These are various court and tribunal pronouncements over the suit land. It pitted the appellants on one side, against either PW2, or other respondent's siblings. The regular feature in all of these proceedings is that the subject matter of the proceedings was the land that constitutes part of the late Ngimbile Magoso's estate. This is the same estate a slice of which the respondent claims ownership. There is no indication that such pronouncements were appealed against or vacated as to provide the basis for subsequent action as mounted by the respondent. Thus, while Ms. Nyenji is right in her contention that the respondent had not, hitherto, tussled with the appellants on the disputed land, I need to remind her that, since PW2 was litigating under common interest, 14 primarily as an administrator, such interest extended to all persons holding interest in the subject matter, and this includes the respondent. I am emboldened in my position by the reasoning in Peniel Lotta v. Gabriel Tanaki& Others[2003] EA 556, in which it was held: "According to explanation to Order IX of the Civil Procedure of1966, a person does not have to be formerly enjoined in a suit, but will be deemed to claim under the person litigating if he has a common interest in the subject matter of the suit..... Giving all three a common interest, since the appellant had sued on the subject matter, the appellant could not be disassociated from litigation that litigation but was be deemed to claim under his mother for the purpose of section 9 of the Civil Procedure Code. Accordingly, the appellant's suit was barred by res judicata." The foregoing position is fortified by the commentary in Mulla's Commentary on Explanation IV of the Indian Code of Civil Procedure (p. 114) in which it was held: "The principle underlying Explanation IV that res judicata is not confined to issues which the court is actually asked to decide but covers issue or facts which are so clearly part of the subject matter of litigation and so clearly could have been raised that it would be an abuse of the process of the 15 court to allow a new proceeding be started in respect of the them." The clear message distilled from the foregoing excerpts is that the prayers of declaration of ownership and vacant possession of the suit land means that the respondent's intention is to gain control of the suit land, a quest that PW2 and all other predecessor claimants had. This means that the suit that bred the instant appeal is a replica of what was adjudicated in matters whose copies of pronouncements were tendered in court, all of which were determined to their finality. In the words used in Kamunye and Others v. The Pioneer General Assurance Society Limited\Yyi\\ E.A. 263; the instant suit relates to "a transaction which has already put before a court of competentjurisdiction in earlier proceedings and which has been adjudged upon." In conclusion, I subscribe to Mr. Charles' contention that issues and everything that was a subject of contention in the trial proceedings featured in the previous proceedings, common denominators in the said proceedings being that the claim was for ownership of land which was allegedly the property of Ngimbile Magoso. Though the claimants kept changing in the course of the proceedings, issues at stake in all the proceedings were not 16 dissimilar to one another, and I take these to be the hallmarks of the doctrine of res judicata. It was a decisional error, by the DLHT, to ignore the appellants' urge to have the application struck out. I, therefore, find this ground of appeal plausible and I grant it. On the basis of this ground alone, I allow the appeal. Accordingly, I quash the trial proceedings and set aside the judgment and decree emanating from the vitiated proceedings. The appellants will have their costs. Order accordingly. 17