ubaya salehe mnyimadi vs benjamin sengerema chayai and another 2020 tzhclandd 3985 11 november 2020

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPEAL NO. 36 OF 2020 (From the decision of the District Land and Housing Tribunai for Mkurunga in Land Appeai No. 30/2018, Originai Case NO. 33/2017 before Mwand%e Ward Tribunai) UBAYA SALEHE MNYIMADI APPELLANT VERSU! ST BENJAMIN SENGEREMA CHAYAI ■K ■A ESPONDENT REHEMA NASSORO RESPONDENT U D G N Date of Last order: 01/07/^( Date of Judgment*WM/2ol MANG The /®bellant aB®eale~afaqainst the decision of the District Land and Housing TribunalKpr Mkurafga in Land Appeai No. 30 of 2018 on the following grounds:- 1. That the District Land and Housing Tribunai Land Tribunal erred in law in blessing the decision of the Ward Tribunai while composition of members in the Ward Tribunal was improperly constituted contrary to Section 14(1) of the Land Disputes Courts Act, pertaining to procedure for mediation; 2. The District Land and Housing Tribunai erred in iaw and fact in upholding the decision of the Ward Tribunal while it was tantamount to Res-Judicata as per the decision of Mkokozi Village Land Council in Land Application No. 30 of 2008; 3. That the District Land and Housing Tribunai erred in Law and fact in upholding the decision of the^Ward Tribunai of compensation without any legal valuation re^rt done by dully authorized valuer. Parties to this appeal were not representedtoue tol€OVIll)llg.£atMemic. the court ordered the appeal to be argued^^way^^rltte'^pbrnlssions the order which was complied with by paities^^^wtb^%rgt\espondent. For that reason this appeal Is determlneckex TOtte ^ranst t^^tSt respondent. Submitting In support of Appeal, thT^ipplOant argued that the Ward Tribunal, MwandegAWar wh^ adjudicating this case was composed of fi^smemBete IS jErary to Section 14(1) of the Land Disputes CoutekAct, 9]. According to him. Section 14(1) of Cap. 216ireauire: m 6#the Tribunal to be three members and at least me mei^fe Id be^voman. Thus, a Tribunal composed with more than t^e membe IS in^contraventlon to the provisions of Section 14(1) of Cap. 2lS On the second ground, the Appellants argued that the matter before the Ward Tribunal was res-judlcata to the decision of the village council. He referred this Court to the provisions of Section 62(1) of the Village Land Act [Cap 114 R.E 2019] which provides that If a person Is aggrieved by the decision of the village council, he should refer the matter to the Ward Tribunal. In the case at hand, the Defendant's vendor has accepted the conclusion in Land Application No. 30 of 2008 as he had not referred the decision of the village Land Council to the Ward Tribunal as required by Section 62(1) of the Village Land Act. He instead filed a fresh suit which is now res-judicata to Land Application No. 30 of 2008. The Appellant argued on the third ground of Appeal&bat, the trial tribunal ordered him to refund the 2"'' Respondent the iwchase ^e of the suit plot and costs of construction of her single ro®P^mat^®to b.^ Tshs. 4,400,000/= without valuation report. In her reply submission the Respon ithat l^)roper Section that provides for composition of the Wa '^i™ 14(1), it is Section 11 of Cap. 216. Accordin^^Rer, )provides for quorum of the Ward Tribunal during medgion of disput^ adjudication of Land disputes, Composition of the Tfeuna^'' idicat nd disputes is provided under Section 11 whicrhscegui IribunaJili be composed of not less than 4 members noWmore tl ence the first ground of Appeal is meritless because«thft..tribun of 5 members. On th&econd^^g^^^ppeal the Respondent argued that the case before the W^kTribuna^kpplication No. 33 of 2017, is not res-judicata to the decision Land Council because parties in the two Application are different. In Land Application No. 30 of 2008 parties were Issa Shomari vs. Binti Nassoro while in Land Application No. 33 of 2007 parties were Rehema Nassor Mturo vs. Ubaya Saiehe Mnyimadi and Benjamini Sengerema Chayai. Thus, res-judicata cannot arise in a situation where the cases involves different parties. As to the third ground of Appeal the Respondent argued that it was proper for the trial tribunal to order Tshs. 1,600,000/= to be refunded to the Respondent because it was specific damages which the Respondent proved before the Tribunal. And 2,800,000/= was awarded as general damages which the Respondent did not need to prove the same. She argued that, general damages are awarded at Courts discretion. To cement^r argument she cited the case of YARA TANZANIA LTD VS. CHARLES AL^CE MSEMWA and 2 others commercial case no. 5 of 2015. She prafgtta have^^peal dismissed with costs. In his rejoinder, the Appellant reiter§tedLhis st^issiwin chief and argued that the amount alleged to be sp^fic l|migK^ia|^is^600,000/= was not proved and 2,800,000/= qenerfll dani^esl^nfoundSThe case cited is also distinguished as circumstances in the cas^it^^e completely different from the case at hand. I have consideffidaSubTWssioli^roadeJIf the parties and the court record. According to f^sub'^lssionllys i^Sfdisputed that the trial tribunal sat with five memMtii.!^^^&l3i§R^^Courts Act does not provide for quorum of the WiFd TribQIillijv^^djuffating land matters. It only provides for quorum of the^ard Triburakdun^ mediation of land disputes. In such dflbrostaiees, the Ward Tribunal may apply the provisions of the Ward Tribunals Act, [Cap 206 RE 2002] while adjudicating land matters as provided by Section 10(2) of the Land Disputes Courts Act. Section 10(2) of the Land Disputes Courts Acts reads:- "The provisions of the Ward Tribunais Act shall apply as appropriately modified by this Act and in the event of confiict. between this Act, and the Ward Tribunais Act in reiation to Ward Tribunais, the provisions ofthis Actshaiiappiy."{Em^\\as\s added) Although the Land Disputes Act has not modified section 4(3) of the Ward Tribunals Act, I am of the view that this provisiofte^es not bar the Ward Tribunal from applying the provisions of tl^J/Vard Ttbunals Act in case of a lacuna in the Land Disputes Courts Act. Section 4(3) of the Ward Tribunals Act provii^^r qlbrunlia^^ttmq to be a half of the total number of members.^fethe caleiat ha^, the composition of the Ward Tribunal is not i embers. In such circumstances, I do not fin arity serTSCs on the ground that, there is no evidence as to he com Siti M andege Ward Tribunal and that, the tribunal no wi etary. It should be noted also that, section IQ 1© th sputes Act does not compel the Ward Tribunals to ly provis Tribunals Act in case of any lacunajngthe,.pro ns o id Disputes Courts Acts. And, Section 45 of Land Bspute^^ prSfflbits reversal or alteration of the decisions of the Wild Tribunal^Dd District Land and Housing Tribunals on account of any error, omTssjpn or l|ggularity in the proceeding before and after hearing. The Section reads!^ "No decision or order of a ward Tribunal or District Land and Housing Tribunai sbaii be reversed or altered on appeal or revision on account ofany error, omission or irreguiarity in the proceedings before or during the bearing...uniess such error. omission or irreguiarity or improper admission or rejection of evidence has in fact occasioned faiiure ofjustice." The Appellant in this Appeal has not established that having five members in adjudicating the dispute has occasioned failure of justice to him or any of the parties to the dispute. He merely highlighted it as an irregularity. For that reason this Court decides to concentrate on substanti^^justice because the procedural irregularities raised by the appeilan^id no^^asion faiiure or justice to the parties. On the second ground of appeal, I agree wi the nse fb e respondent that the matter is not res judicata. 0 es rise four conditions must be established. First, ther ust o i finally heard and determined by a competen an ing before a competent court. Second, the subject Its m be directly or substantially the same. Third, th Its St en me parties or parties litigating on the same mjflii and*^ iiin in the former suit must be final. The condition ided eaion 8 of the Civil Procedure Code,[Cap 33 R.E 2am.Thl teads 10 courr^^ir^^^ed with the trial ofany suit In which the liter In Isstie IsWso directly and substantially In Issue In a p^jgusly In^^ted suit between the same parties, or between par^^^^^Ahom they or any of them claim Is litigating under^^^^e title where such suit Is pending In the same suit or any other court In Tanzania having jurisdiction to grant the reliefclaimed." Court record shows that the appellant had been a party to Case No. 30/2008 in which he sued one Binti Nassoro for trespassing into his land located at Mkokozi hamlet, Mkuranga, Pwani Region. In Case No. 33 of 2017 Rehema Nassoro Mturo sued the appellant and the first respondent for recovery of a piece of land located at Mkokozi hamlet, Mkuranga, PwanI Region. Rehema alleged to have purchased the suit plot from Ubaya Salehe Mnyimadi for Tshs 1,600,000/-. The first respondent, BENJAMIN! SENGEREI^^HAYAI emerged claiming to be the owner of the same land. Henc^fehema ^Isoro haxi to sue all of them. This establish that although t^lana in .aispute.in tRgftwo cases might be the same, the cause of action analfe pam^^tStwo cases are completely different. Therefore, Cas^^^yi/.^^^f|y Mwandege Ward Tribunal Is not res judicata to C^^No. ajj/j^^^^was mediated by the Mkokozi Village Land Coun^^^reo^^^^^^ouncil is not a court, as its jurisdiction is limited to megpting^g^fs^gpvwed by section 7 of the Land Disputes Courts Act. The third grq®^f^pea1^^rd^Wd§tain much this court as the appellate tribunal after l^iaq.i^f^pur ofee first respondent, it ordered the appellant to ref®ir tR^rst rlsi|onder^lshs 1,600,000/- which was the purchase price of th^uit landl^ie^jfchase price is contained in the sale agreement betweer^fag seconM respondent and the appellant which was tendered as evidence beffeatne trial tribunal. The appellant had never disputed the contents of the said sale agreement, thus the respondent proved to have suffered Tshs 1,600,000/- as special damages. Tshs 2,800,000/- was awarded as general damages which is awarded at the discretion of the tribunal and the second respondent was not required to prove them. The tribunal visited the disputed land and saw the improvements made there in. In such circumstances, I don't find a reason of interfering with the amount awarded to the respondent as general damages. For those reasons I find the appeai to be unmeritous and hereby dismiss the same with costs. :> •2^ o £ Z. ANG t-" 2: JUDGE 11/11/20