theresia leon urio suing as legal administratrix of estate of leon jacob urio vsclodi urio and 3 others 2021 tzhc 7578 16 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI LAND APPEAL NO. 9 OF 2021 (From the Decision of the District Land and Housing Tribunal of Moshi District at Moshi in Land Case No. 135 of 2018) THERESIA LEON URIO (Suing as Legal Administratrix of Estate Of LEON JACOB URIO).............................. .............. APPELLANT Versus CLODI URIO.......................................... ............RESPONDENT JOHN BOSCO LEONI............................... ............RESPONDENT RAPHAELI LEONI................................... ............ RESPONDENT MARKO LEONI........................................ ............RESPONDENT JUDGMENT Last Order: 12th October, 2021 Date of Judgment: 16th November, 2021 MWENEMPAZI. J. This is an appeal against the ruling of the District Land and Housing Tribunal of Moshi in Application No. 135 of 2018 delivered by James Sillas the Page 1 of 16 ' honorable chairman of the tribunal on 16th December,2019. Aggrieved by the decision the appellant preferred an appeal to this court which was delayed for some reasons but upon being granted by this court extension of time to appeal out of time, the appellant filed this appeal. In order to understand the appeal, I find it necessary to narrate the background leading to it. The appellant sued the respondents at the District Land and Housing Tribunal of Moshi for trespass over a suitland located at Mrao Subdivision, Mengeni chini Village in Rombo District at Kilimanjaro Region. The appellant claimed that the suitland was jointly owned by herself and her late husband Mr. Leoni Jacob Urio since 1990 and that they had built thereon their matrimonial home. She also claimed that soon after the death and burial of her late husband the respondents jointly and severally trespassed into the suitland destroyed the matrimonial house and unlawfully expelled the appellant from the suitland and restricted her from using and or entering the suitland by contending that it was the property of the 4th respondent. That in her individual capacity the appellant unsuccessfully instituted her complaint before Keni-Mgeni Ward Tribunal. That later on the appellant after being appointed as an Administratrix of the estate of her deceased husband decided to sue the respondents in that capacity at the Page 2 of 16 District Land and Housing Tribunal of Moshi. The respondent contested the application and raised two points of preliminary objection to the effect that the appellant had no cause of action against them and that the claim was Res Judicata. After hearing the preliminary objection, the tribunal decided in i favour of the respondents by declaring the matter to be Res-judicata and finally dismissing it with cost. Aggrieved, the appellant appealed to this Court on three (3) grounds of appeal as follows: 1. That the learned trial chairman erred in law and fact by declaring the Application incompetent for being Res-judicata. 2. That the learned trial chairman erred in law and fact by directing himself in considering facts and evidence of the Application while entertaining a preliminary objection, the act which led to unfair decision. 3. That the learned trial chairman erred in law and in fact by failing to recognize that a legal Administratrix and a normal person suing under her own capacity are two different persons under the law. The appeal was argued by filing written submissions. Mr. Ronald Urassa learned counsel appeared and filed written submission on behalf of the Page 3 of 16 appellant while Mr. Willence Elisonguo Shayo learned counsel filed written submission on behalf of the respondents. Submitting on the first ground of appeal Mr. Urassa stated that the tribunal erred in sustaining the objection on the point that the application was Res- judicata. While referring to the provision of section 9 of the Civil Procedure Code, [Cap 33 R.E 2019] the learned counsel argued that for the matter to be Res-judicata such application must be between the same parties and must be determined by a court with competent jurisdiction. Explaining the scenario Mr. Urassa submitted that in Application No. 135/2018 the appellant who was then the applicant sued in the capacity of the Administratrix of the estate of her late husband one Leoni Jacob Urio while in the previous Application No.1/2015 before Keni Mengeni Ward Tribunal the appellant sued in her own personal capacity. Furthering his submission Mr. Urassa stated that for the doctrine of Res- judicata to stand five conditions must be cumulatively established. First is that the former suit must pertain to the same parties or their successor I title. Second is that the subject matter of the dispute must be directly and substantially at issue. Third is that parties in subsequent suit must have Page 4 of 16 litigated under the same title in the former suit. Fourth is that the matter must have been heard and finally determined. Fifth is that the former suit must have been decided by a court of competent jurisdiction. To substantiate this argument, the learned counsel cited two cases from the Court of Appeal of Tanzania that is the case of UMOJA vs. NBC HOLDING CORPORATION Civil Appeal No. 3 OF 2001 and the case of PENNIEL LOTTA vs. GABRIEL TANAKI AND TWO OTHERS Civil Appeal No.61 OF 1999. Based on the cited authorities, it was Mr. Urassa's submission that the trial tribunal erred by intentionally ignoring the fact that the appellant in Land Case No. 1/2015 before Keni Mengeni Ward Tribunal sued in her personal capacity and not as the Administratrix of the estate of late Leoni Jacob Urio. On the second ground Mr. Urassa submitted that the trial chairman erred in law and in fact by considering facts and evidence of the application while entertaining a preliminary objection. Fie cited the case of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd. [1969] E.A 696 where it was held that a preliminary objection raises a pint of law which is argued on the assumption that all the facts pleaded by the other side are correct. That the same cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The Page 5 of 16 learned counsel submitted that it was wrong for the tribunal while entertaining a preliminary objection on point of law to consider evidence as if it was presiding the main application. Mr. Urassa referred to page 2 of the * Ruling of the Tribunal where the chairman is quoted to have stated that there was no dispute that the late Leon Jacob Urio distributed his estate before dying. Mr. Urassa argued that the Ruling of the Tribunal is incompetent because the chairman relied on facts which ought to be ascertained. On the third ground Mr. Urassa submitted that the learned trial chairman erred in law and in fact by failing to recognize that an Administratrix and a person suing under her own capacity are two different persons under the law. He argued that the law is very clear about legal person and a natural person. That the two cannot be termed as one because they have different duties, responsibilities and liabilities. Responding to the submission by the appellant, Mr. Shayo learned Advocate for the respondents raised a point of law that the appeal before this court is incompetent for being against the law. Explaining the point, the learned counsel stated that according to the proviso to Regulation 22 of the Land Page 6 of 16 Disputes Court (The District Land and Housing Tribunal) Regulation GN. No. 174 it is provided that a ruling on a preliminary point of law shall not be appealable. He thus submitted that the appeal before this court is not proper for contravening the above cited provision hence it should be dismissed. With respect to the grounds of appeal Mr. Shayo submitted that the Chairman of the District Land and Housing Tribunal was right in holding that the matter is Res-judicata. He further submitted that there is no way that one may separate a wife and a husband in claiming a joint owned property. Mr. Shayo went on stating that courts cannot allow family members to institute suits on the same properties just by arranging themselves as to who should try at first and who should follow in case of any failure. He argued that what the appellant did was a technical splitting of the parties so as to allow and pave a way for further tries. It was Mr. Shayo's submission that the circumstances in the present case are well covered under section 9 of the Civil Procedure Code, [Cap 33 R.E 2019]. He submitted that it is appropriate time for this court to set a standard as to whether family members may be exchanging capacity of suing Page 7 of 16 to mean after wife looses then shall wait until the demise of her husband and try another bite under the umbrella of Administratrix of estates. He contended that allowing what the appellant herein need to justify is going against finality to litigations. Mr. Shayo referred to Explanation VI of section 9 of the Civil Procedure Code, [Cap 33 R.E 2019] which provides that, "Where persons litigate bona fide in respect of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section be deemed to claim under the same persons so litigating". Citing the case of PenieLLotta vs. GabrjeL Tanakiand_Others[20031TLR312 Mr. Shayo submitted that according to this case it was held that the object of res- judicata is to bar multiplicity of suits and guarantee finality to litigation by making 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. Submitting further on the second ground of appeal, Mr. Shayo stated that the argument by the appellant that the honourable chairman considered evidence is a misconceived thought that has no truth since what was considered was the issue of res-judicata which led to a proper conclusion that the matter was res-judicata. He also stated that all what was considered has not led to any miscarriage of justice. Substantiating his point, the learned counsel made reference to section 45 of the Land Disputes Courts Act t Cap 216 which provides to the effect that, "No decision or order of the District Land and Housing Tribunal shall be reversed or altered on appeal on account of any error, omission or irregularity unless such error or irregularity has in fact occasioned a failure of justice". He argued that the appellant has failed to state how the alleged irregularity if any has occasioned miscarriage of justice. Hence, he submitted that the main aim of substantial justice was well served thus the decision of the tribunal was proper and should be affirmed by this court. Finally, it was Mr. Shayo's submission that based on their submission the District Land and Housing Tribunal was very correct to dismiss the application for being res-judicata. He thus prayed for the appeal to be dismissed with cost for being devoid of merit. In his rejoinder submission Mr. Urassa reiterated his submission in chief and added that according the proviso of Regulation 22 of the Land Disputes Page 9 of 16 ' Court (The District Land and Housing Tribunal) Regulation GN. No. 174 it clearly states that, "Provided that a ruling on preliminary point of law or any interlocutory application which have no effect of finally deciding the case shall not be appealable". He further submitted that the ruling of the District Land and Housing Tribunal in Application No.135/2018 had an effect of absolutely finalizing the case therefore the option to appeal to this court was proper. He thus prayed for the appeal to be allowed. Having considered the grounds of appeal and the submissions from both parties the issue for determination of this appeal is whether the appeal has merit. As I determine this issue, I will begin with the point of law raised by the respondents. The point of law raised was to the effect that the appeal before this court is incompetent for contravening the law as provided by the proviso to rule 22 of the Land Disputes Court (The District Land and Housing Tribunal) Regulation GN. No. 174 of 2003. With all due respect to the learned counsel for the respondents I must say I am disappointed by him because as an advocate he is also an officer of the court who is expected to guide the court to arrive to a proper decision for the interest of justice. On the contrary the act of Mr. Shayo to quote the law in a way in which it favored his clients (respondents) is unlawful and Page 10 of 16 unacceptable as it was aimed at misleading this honourable court. Mr. Shayo wrongly quoted the provision by leaving the part which carried the main object of the provision for his own interest. For ease of reference, I will reproduce the provision hereunder. The provision states, "Provided that a ruling on preliminary point o f law or any interlocutory application which have no effect of finally deciding the case shall not be appealable"(emphasis added) As it can be seen from the quoted provision of the law above the law is very clear that what shall not be appealable is the ruling on preliminary point of law or any interlocutory application which have no effect of finally deciding the case, the bolded part of the provision is the one which Mr. Shayo intentionally left out so as to serve his interest. In the present scenario as correctly argued by the learned counsel for the appellant the ruling which is subject of this appeal had an effect of determining the case to its finality because it was decided that the case was res-judicata and as a result was dismissed. The only remedy for the aggrieved party who was the appellant was no other than to appeal to this court. Therefore, the point of law raised has no merit and it is hereby dismissed. Page 11 of 16 Now moving on to the grounds of appeal, after going through all the grounds of appeal raised, I found that the first and the third grounds were all centered on one issue that is in relation to the doctrine of Res-judicata. The second ground was in relation to the decision of the tribunal alleged to being unfair for the fact that it was based on evidence of the application while determining preliminary objection. To begin with the first and the third grounds which were in relation to the doctrine of Res-judicata, I must state forthwith that I agree with the learned counsel for the respondents that the Application No. 135 of 2018 instituted at the District Land and Housing Tribunal for Moshi was indeed subject of res-judicata. This is so because the law regarding this doctrine is very clear as provided for under section 9 of the Civil Procedure Code, [Cap 33 R.E 2019] 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 Page 12 of 16 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." [Emphasis mine] The provision of the law cited above, is clear that the law prohibits courts from entertaining matters which fall within the rule of res-judicata. In determining the issue of res judicata, I made an effort of perusing the trial tribunal's records which revealed the following facts that I think are necessary to look at in examining the issue of res judicata. First of all is the fact that the appellant had initially sued the respondents in her personal capacity as Theresia Leoni Urio in application No. 1/2015 before Keni Mengeni Ward Tribunal. Secondly is the fact that the subject matter of the suit was a suitland which the appellant claimed to have been given by her late husband in the year 1990 after the two got married where upon it, they built a matrimonial house which they lived in. In the later case at the District Land and Housing Tribunal in Application No. 135/2018 the appellant sued the respondents in the capacity of Administratrix of the Estate of her late husband. Now in examining these facts it was clear to me that the facts do Page 13 of 16 fall within the description of the law as stated in Explanation VI of section 9 cited above. In this explanation it is stated that "Where persons litigate bona fide in respect o f a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes o f this section, be deemed to claim under the persons so litigating". Based on the explanation above, the circumstances of this case reflect exactly what has been explained. The records show that the suitland which was subject matter of the first application No. 1/2015 before Keni Mengeni Ward Tribunal is also the subject matter of the second application No. 135/2018 before the District Land and Housing Tribunal for Moshi. Now based on the explanation above when the appellant sued the respondents at the Ward Tribunal though she did it in her personal capacity, she also represented all the people who had interest in the suitland including her late husband. Therefore, since the rights to the suitland had already been determined by a competent court/tribunal for this matter, if the appellant was aggrieved by such decision, she ought to have appealed against it to Page 14 of 16 the District Land and Housing Tribunal instead of instituting a fresh application as she did in a different personality. I do agree that in the former application the appellant sued in her personal capacity and in the later application she sued as a legal person representing her deceased husband however the point here is that the appellant and her late husband both had interest over the suitland which they held in common. Therefore, whenever any one of them sues he or she represents the interest of the other. Based on what I have explained herein above I find that the Application No. 135/2018 before the District Land and Housing Tribunal for Moshi was indeed incompetent for being Res-judicata. Therefore, the first and the third grounds of appeal lack merit. The second ground was based on the allegation that the district tribunal erred in its decision since the chairman considered the evidence of the application while determining the preliminary objection. I do not agree with this allegation because even if the chairman did mention some facts about the application his final decision was not based on those facts but on the issue of res-judicata. This ground has as well failed. ' Page 15 of 16 In light of the above, I find this appeal without any merits and consequently proceed to dismiss it with costs. Dated and Delivered on the 16th day of NOVEMBER, 2021 //<> fi- T. MWENEMPAZI JUDGE Judgement delivered this 16th day of November, 2021 in the presence of Mr. Ronald Urassa, Advocate for the appellant and all the respondents. Right of appeal explained. T. MWENEMPAZI JUDGE Page 16 of 16