JUDGMENT WILSON MWAMBENE VS DATON MWAPIMBE AND 2 OTHERS LADN APPEAL NO 2713 OF 2023

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY

AT MBEYA LAND APPEAL NO. 27713 OF 2023 (Arising from the decision of the District Land Housing Tribunal for Rungwe at Tukuyu in Application No. 17 of 2020) WILSON MWAMBENE……………………..……….…………APPELLANT

VERSUS DATON MWAMPIMBE…………..……………………….1ST RESPONDENT ASUKILE MWAMBENE…………………………………..2ND RESPONDENT FAGIO BROKERS AND AUCTIONEERS CO. LTD…..3RD RESPONDENT

JUDGMENT Date of last Order: 5th June, 2024 Date of Judgment 18th July, 2024 KAWISHE, J.: The appellant, Wilson Mwambene dissatisfied with the decision of the District Land and Housing Tribunal for Rungwe at Tukuyu in Application No. 17 of 2020 preferred this appeal before this court. He prayed to this 1 court to quash the judgment of the trial tribunal and declare him the lawful owner of the disputed land basing on the following two grounds: 1. That the chairman of the District Land and Housing Tribunal erred in law and facts to give the judgment in favour of the 1st respondent without sufficient proof that the case is res judicata.

2. That the chairman erred in law and facts for failure to evaluate the adduced evidence while ignored strong evidence from the appellant’s side as the result reached unfair decision. The appeal was objected by the respondents. The appellant appeared in person unrepresented, the 1st respondent was represented by Mr. Hassan Gyunda, learned counsel while the 2nd respondent was unrepresented. The appeal proceeded ex parte against the 3rd respondent, Fagio Broker and Auctioneers Co. Ltd. On the hearing date, the learned counsel for the 1st respondent informed and prayed to the court that despite having notice of the hearing, the 3rd respondent was not in court. He prayed that the matter to proceed ex-parte against the 3rd respondent. The prayer was supported by the 2nd respondent and the appellant. That being the case and given the fact that the 3rd respondent was in court when it was ordered that the appeal will be heard 5th June, 2024 and there was no information on is his absence, this court ruled out that, the appeal to proceed ex- parte against the 3rd respondent. 2 When the appeal was called for hearing, the appellant, Mr. Wilson submitted that, the chairman of Rungwe District Tribunal erred in law by striking out his application and decide in favour of invader. That, he sent invaders to the appellant’s homestead to affix a name of a person whom he does not know. He added

that the invaders were Mr. Daton Mwampimbe, Asukile Mwambene and Fagio Brokers while, the disputed land is his lawful property. He added that there is no case between him and any person on half acre piece of land. He further submitted that this case was concluded in the High Court at Mbeya in 2008. That before the High Court was Adam Mwakifamba, who was claiming that the appellant took his plot. That, Mr. Adam Mwakifamba died in 2005. The appellant stated that, he wonders another person named Asukile Mambene with Daton Mwampimbe, whon they never sued each other. That, even the farm which they are invading, it has no borders. They just came to invade the appellant. He prayed to the court to investigate the matter. That, it is theft as they are taking his property. In reply, Mr. Gyunda, learned counsel for the 1st respondent starting by making the records proper. He stated that, this appeal emanates from Land Application No. 17 of 2020 in the Rungwe District Land and Housing 3 Tribunal (to be referred to as the Tribunal). The learned counsel continued to submit that, the appellant was the applicant where, the Tribunal considered whether the application was res judicata among other issues. That when the witnesses were testifying before the tribunal, it was found out that, the application was decided by the High Court, twice. The counsel in support of his submission referred this

court to page 3 and 4 of the typed judgement of the Tribunal, the 1st and 2nd respondents testified that the application was already decided. The Tribunal was of the view that, such application has been decided. He also referred and read page 5 paragraph 3 and page 6 paragraph 2 of the Tribunal’s judgment. The learned counsel unfolded that, there are two case which have been decided. That is, first, PC Civil Appeal No. 1 of 2008 High Court at Mbeya, Wilson Mwambene vs. Adam Mwakifwamba, before Hon. Lukelelwa, J. Second, Land Appeal No. 1 of 2013, High Court Land Division at Mbeya, Asukile Mwambene vs. Daton Mwampimbe, before Hon. Chocha, J. The learned counsel, averred that, in the first case, was a dispute on the same disputed land, the High Court decided that, the lawful owner is Adam Mwakifwamba, page 7 of the judgment. The learned counsel added 4 that in the second case, Hon. Chocha, J decided that, the case was res judicata. That it was already decided in the first case by Hon. Lukelelwa, J. The learned counsel, contended that, it is true that, in the case decided by Hon. Lukelelwa, J. was Adam Mwakifwamba, the administrator of the estate of the late Adamu Mwakifwamba was appointed, that is, Daton Mwampimbe, the 1st respondent. In the pleadings before the tribunal shows that referring to the judgment of Hon. Lukelelwa, J. He added that, it is true that in the case decided

by Hon. Lukelelwa, J. was Adam Mwakifwamba, the administrator of the estate of the late Adamu Mwakifwamba was appointed, that is Daton Mwampimbe, the 1st respondent. That, in the pleadings before the Tribunal and the memorandum before this appeal show that, the 1st respondent is the administrator of the estate of the later Adam Mwakifwamba and the memorandum before this appeal also shows that 1st respondent is the administrator of the estate of the later Adam Mwakifwamba. He insisted that, the late Adamu Mwakifwamba appeared in the PC No. 1 where the parties were Wilson Mwambene vs Adamu Mwakifwamba, now deceased and the administrator is Daton Mwampimbe. The learned counsel, asserted 5 that, the appellant is misusing court processes as he knows that the matter is res judicata. The learned counsel further asserted that, in the same appeal where Asukile Mwambene, a brother to the appellant, he sued Daton Mwapimbe as the administrator of the estate of Adamu Mwakifwamba. It was in Land Appeal No. 1 of 2013 where Hon. Chocha, J. found out that, the parties were suing on the same property. The counsel referred to section 9 of the Civil Procedure Code, Cap 33 R.E 2019 which prohibits decided cases from being reopened afresh. Also, cited the case of Diocles Kamuhabwa vs. Theonest Kamuhabwa (Civil Appeal No. 436 of 2022) [2024] TZCA 221 (22 March 2024) page 18, 19, 20 where the CAT

elaborated on res judicata. He argued that, with that reason, when the 1st respondent was executing the court’s decision as it was decided in the judgment of Rungwe District Tribunal, is when the appellant opened another matter. That the appellant opened the application against the 1st respondent the administrator of the estate of the late Adamu Mwakifwamba. Adam was the same party in the PC Civil No. 1 of 2008. That, he also sued the 2nd respondent, his brother, the same had case with Daton Mwampimbe administrator of the estate of the late Adamu Mwakifwamba who was 6 declared the owner in Land Appeal No. 1 of 2013 before, Hon. Chocha, J. That he sued the court broker appointed by the Tribunal to executed the decision made by Hon. Chocha, J. The counsel continued to insist that, the cause of action is the same in the previous case, the same parties and the same disputed land. That this is a res judicata. Thus, it should not be brought in court as the appellant did. Encountering on the size of the disputed land, he stated that the appellant stated that, the disputed land is not half an acre and it has no borders. He stated that it is an evidentiary matter. That, the decision in PC Civil Appeal No. 1 of 2008 before Hon. Lukelelwa J, and Land Appeal No. 1 of 2013 before Hon. Chocha, J. that matter was decided. Also, that issue cannot be raised at this point, it has been decided

and the evidence was already given. He concretized his argument by stating that was the reason why the District Tribunal did not consider the evidence who is the owner, because the High Court in the previous cases declared who is the owner and the size of the disputed land. He prayed that the appeal be dismissed with costs. The 2nd respondent, Asukile had hearing challenge so he was assisted by his brother by repeating loudly what was stated in court so that he 7 could understand and respond accordingly. When he was invited to respond to the grounds of appeal, Mr. Asukile was very brief. He stated that, he does not know and he has not entered the disputed land. That, it was Daton and Fagio Brokers. That, the dispute land is not his, it is the land of Wilson Mwambene. He further stated that, he has been implicated in cases which he does not know. That, in 2003, he was required to pay Daton Mwambene, though he did not know the case. He appealed and he was informed that he was not concerned in theve case. That he does not know this appeal as there is no judgment of case No. 7, the eviction order. Mr. Asukile, stated that, he does not know if they took previous cases. He concluded that, it is Daton Mwampimbe and Fagio Brokers who destroyed the crops. That they did so as it was by the District Tribunal Rungwe. That he does not have any other land. That the case which he was sued by

Daton Mwampimbe, the High Court dismissed it. In rejoinder, the appellant, Wilson stated that, he has the eviction order. That the decision of Daton Mwampimbe and Asukile Mwambene was made by the High Court. That they do not have need to go to his home. He added that, this case is not a res judicata. That, he has been invaded in 8 another area. That, he was evicted from the disputed land. That, in the previous cases, the family members stated that, they had left the case. They did not say if they will bring an administrator. He concluded that, this is land issues, it must have a map, and boundaries. He prayed for his appeal to be accepted. I have carefully followed the rival arguments for and against the grounds of appeal. This court found out that, in disposing this appeal the main question to be answered is whether this appeal is a res judicata. In order to determine this appeal safely, it is very imperative to understand the definition of res judicata. I am humbled to borrow the version by the Court of Appeal in the case of Diocles Kamuhabwa vs. Theonest Kamuhabwa (Civil Appeal No. 436 of 2022) [2024] TZCA 221 (22 March 2024) at page 16, the Court stated that: “an affirmative barring the same parties from litigating a second law suit in the same claim, or any other claim arising from the same transaction or series of transactions and that could have been raised but was not

raised in the suit" In line with the position of the case law, section 9 the Civil Procedure Code, Cap 33 R.E 2019 (the CPC) states: “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 9 same parties or between parties under whom they or any of them claim litigating under the same title in a 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.” Amplifying on the principle of res judicata the Court observed that the objective of the doctrine hinges on the public policy that litigation has to come to an end so that parties can continue with their normal developmental activities. Therefore, it bars multiplicity of suits and ensures finality of litigation, and in a way also protecting an individual from multiplicity of litigations. With regard to the observation of the Court of Appeal, the determination of the appeal at hand shall consider the reasoning of the Court as far as the doctrine of res judicata is concerned and raised in the matter at hand. Mr. Gyunda, learned counsel for the first respondent argued that, the same appeal was heard and determined by Hon. Chocha, J. in Land Appeal No. 1 of 2013, parties were Asukile Mwambene vs. Daton Mwampimbe. To be

clear, Asukile is the 2nd respondent in this appeal while, Daton Mwampimbe is the 1st respondent in this appeal. In the Land Appeal No. 1 of 2013 the disputed was over land measured 6 acres and worth Tanzania Shillings 20 million, located at Syukula Village, Rungwe District, 10 while the respondent contended that the land measured only ¼ an acre. The judgment of the High Court in that appeal, at page 2 states that the tribunal found the matter to be res judicata because it was the subject in Civil Appeal No. 1 of 2008 before the High Court between the respondent’s brother, Adam Mwakifamba, the deceased. In the PC Civil Appeal No. 1 of 2008 the parties were Wilson Mwambene vs. Adam Mwakifwamba. The subject matter was a disputed land located in Syukula Village. It was stated that the disputed land was bought by the appellant’s brother, that is Asukile Mwambene. In this appeal Asukile Mwambene is the 2nd respondent while the Appellant, Wilson Mwambene was the appellant in PC Civil Appeal No. 1 of 2008. That, 2nd respondent in this appeal gave the disputed land to his young brother, the appellant in this appeal. At page 6 of the Tribunal’s judgment, the appellant agreed to have had the same dispute against the late Adam Mwakifwamba who is now represented by Daton Mwampimbe the 1st respondent as per records available he is the administrator of he estate of the late Adam Mwakifwamba

and the 2nd respondent in this appeal. In the Land Appeal No. 1 of 2013 the High Court dismissed the appeal for being res judicata. In the PC Civil Appeal No. 1 of 2008 the 11 parties were Wilson Mwambene vs. Adam Mwakifwamba. In the case at hand, the parties are Wilson Mwambene vs. Daton Mwampimbe who is the administrator of the estate of the late Adam Mwakifwamba as per records available. They disputed land is located in Syukula Village. As submitted by the 1st respondent’s learned counsel and considering the judgment of the High Court in the Land Appeal No. 1 of 2013, the parties are the same and the disputed land is the same. The 2nd respondent distanced himself from this appeal by stating that he is not involved in the case. That in the case he lost against Daton Mwampimbe he was ordered to pay. He did not have much to contribute on the ground of res judicata. As I stated earlier, the appeal was heard ex parte against the 3rd respondent. Having seen that the parties and the subject matter is the same as was held by the High Court, I wish to borrow the wisdom of the Court of Appeal in the case of Diocles Kamuhabwa vs. Theonest Kamuhabwa (supra). The Court found out that, the conditions before a suit can be declared res judicata were satisfied where the parties were the same and the same subject matter. The same applies to this appeal, the same parties and the same disputed

land, located at Syukila Village. Also see the case of 12 the Registered Trustees of Chama Cha Mapinduzi vs. Mohamed Ibrahim Versi and Sons and Another, Civil Appeal No. 16 of 2008. From the provisions of the law and the case laws cited, and the argument from both parties I am of the firm view that, this matter has been heard and determined between the same parties and the same subject matter hence, it is res judicata. That being the reason, the issue raised is answered in the affirmative. From the foregoing reasons, the appeal has no merit. In the upshot, the appeal is dismissed with costs. It is so ordered. Right of appeal explained. Dated and Delivered at MBEYA this 18th day of July, 2024. E.L. KAWISHE

JUDGE 13