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Fanuel Mtenga Vs Amini Makaye (Misc Land Application 4 of 2019) 2020 TZHC 1348 (16 June 2020)

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Fanuel Mtenga Vs Amini Makaye (Misc Land Application 4 of 2019) 2020 TZHC 1348 (16 June 2020)

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mwakobeomari
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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

(IRINGA DISTRICT REGISTRY)

AT IRINGA

MISC. LAND APPEAL NO.4 OF 2019

(Arising from District Land and Housing Tribunal in Land Appeal case
No. 129 of 2017, Land case 37 of 2016 from Ihimbo Ward Tribunal)

FANUEL MTENGELA ............................... APPELLANT

VERSUS

AMINI MAKAYE ........................................ RESPONDENT

28/4 & 16/6/2020

JUDGMENT

MATOGOLOJ.

The appellant namely Fanuel Mtengela has appealed to this court


challenging the decision of the District Land and Housing Tribunal of Iringa
in Land Appeal No. 129 of 2017 which allowed the appeal and quashed the
decisions and orders issued by Ihimbo Ward Tribunal.

He filed a total of eight grounds of appeal as follow:

1. That, the Hon. Chairman erred in iaw and facts by making


contradictory decision.

2. That, the Hon. Chairman erred in iaw and facts by composing a


judgment without evaluate the evidence adduced on both parties.

1 |P ag e
3. That, the Hon. Chairman erred in iaw and facts by not considering
the weight o f evidence which was been adduced by the appellant
during trial hence reaching wrong decision.

4. That, the Hon. Chairman erred in law and facts by order(sic) the
appellant to pay cost o f appeal and those below while the errors
made by the ward tribunal.

5. That, the Hon. chairman erred in law and facts by ordering the
appellant to take steps to restore the suit filed in 2016 at wartf
while the Coram set before the court in order to ascertain was
uncertain and there was no anyjudgment written thereof.

6. That, the Hon. Chairman erred in law and fact for not decide a
case on the balance o f probability.

7. That. The Hon. Chairman erred in law and fact for considering^he
weak evidence adduced by the respondent and his witness hence
reached to wrong-decision.

8. That, the Hon. Chairman erred in law and fact when did not
consider that the respondent did not make objection against the
2nd case issued by the ward tribunal including the said property in
dispute.

The brief background of the matter is that the appellant in 2016 sued
the respondent at the ward tribunal of Ihimbo claiming that the respondent
trespassed in his land. The Ward Tribunal decided in favor of the appellant,

2 |Page
the respondent appealed to the District Land and Housing Tribunal which
decided in favor of the respondent. The appellant was aggrieved with the
decision of the District Land and Housing Tribunal hence this appeal.

During the hearing of this appeal the parties appeared in person


(unrepresented), and the appeal was argued orally.

The appellant submitted that from 1986 he was given a piece of land
(Kinyungu) by his mother one Christina Kikoti and he has been using it up
to 2016.

The respondent invaded part of it which he reserved as source of


water (river). He sued him at the Ward Tribunal, the case was adjourned
for purpose of visiting the locus in quo but time for the ward tribunal
members tenure expired.

The appellant went on submitting that the case was adjourned to


2017 when the Ward Tribunal was formed, they visited the locus in quo
and the respondent had no any feature to describe his claim.

The appellant submitted further that he has been using the land for
more than 30 years.

In reply the respondent submitted that the appellant has been


explaining different to the real situation. In 2016 he went to cultivate his
area which adjoined to the appellant piece of land.

The respondent submitted that the demarcation is known as it was


set in the presence of the appellant's uncle and his mother who hadland
3 |P a ge
adjoined to the land of his grandmother. The case which appellant said
was struck out it is not true, but the appellant himself withdrawn the case
following failure to raise money for visiting locus in quo. And he was told to
continue using the land in dispute. The respondent went on submitting that
after a new Ward Tribunal was formed in which one of the members was
his young brother, he refiled the case hoping that his young brother would
assist him. The case ended in favour of the appellant. He appealed to the
District Land and Housing Tribunal which decided in favour of the
respondent.

In rejoinder the appellant submitted that he wondered as to which


criteria the District Land and Housing Tribunal used to decide against him,
as it did not visit the locus in quo. He further submitted that the Ward
Tribunal decided in his favour as they visited the locus in quo and saw the
boundaries and the area he invaded.

Having carefully heard from the parties and having carefully perused
the court records the issue for determination is whether it was correct for
the District Land and Housing Tribunal to decide that the matter was res
judicata.

The court record reveals that the appellant sued the respondent in
Ukwega Ward Tribunal in Land application No. 37 of 2016, the case was
withdrawn as the appellant failed to raise money for visiting the locus in
quo.

4 |P ag e
The records show that the respondent sued the appellant for trespass
on the same Land in Land dispute No.55 of 2016 at Ukwega Ward Tribunal
and the case ended in favour of the appellant though I have perused the
records the judgment is not found.

The Chairman of the District Land and housing Tribunal for Iringa
allowed the appeal and he quashed the proceedings and resulting decision
and orders issued by the Ward Tribunal, and the appellant was directed to
comply with the Ward Tribunal decision of 07/07/2016. It was the decision
of the District Land and Housing Tribunal that the suit was res judicata.

The term res-judicata is defined in the Oxford Dictionary of Law, 5th


Edition as:-

"The principle that when a matter has been finally


adjudicated upon by a court o f competent
jurisdiction, it cannot be reopened or challenged by
the original parties or their successors in interest"

The principle has also been explained in various court decisions. In


the case of Karshe versus Uganda Transport Co. (1967) E.A. 774, at
page 111, Sir Udo Udoma, C J decided that;

"....once a decision has been given by a court o f


competentjurisdiction between two persons over the
same subject matter, neither o f the parties would be
allowed to relitigate the issue again or to deny that

5 |P age
that decision had in fact been given, subject to
certain conditions"

Furthermore in the case of Zanzibar Telecom Co. Ltd versus


Haidary Y. Rashid t/a Narasisa Enterprises (unreported), Commercial
Appeal No.2 of 2009, Bukuku, J. stated that;

... Primarily it applies as between past litigation


when a matter, whether on a question o f fact or a
question o f law, decided between two parties in one
suit or proceedings, and decision is final, either
because no appeal was taken to a higher court or
because the appeal was dismissed or no appeal lies
neither party will be allowed in a future suit or
proceedings between the same parties to canvass
the matter again "

This also is provided under Section 9 of the Civil Procedure Code


(Cap. 33 R.E 200) which provides:-

"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 o f them claim litigating under the
same title in court competent to try such subsequent
suit or the suit in which such issue has been

6 |Page
subsequently raised and has been heard and finally
by such court.

In the present case the records reveal that application No. 37 of 2016
was withdrawn by the appellant before being determined for failure of the
appellant to raise money in order for the ward Tribunal to visit the locus in
quo.

A case is said to be res judicata when parties and issues are involved
in two cases and decided are one and the same, and if the suit was finally
decided.

Upon perusing the court records it is revealed that there was case
No. 37 of 2016 at Ihimbo Ward Tribunal, Amin Makaye was the plaintiff
and Fanuel Mtengele was the defendant and the subject matter was the
land (2 acres), whereby this case was withdrawn by the plaintiff. There
was another case No.55 of 2016 whereby the plaintiff was Amin Makaye
and the defendant was Fanuel Mtengela and the subject matter was the
land (2 acres), this case was decided and the appellant (in the present
case) won.

In my careful perusal of the court records concerning the two cases,


I find that the parties are the same and the subject matter is the same. But
among the two cases, land case No. 37 of 2016 was not heard and finally
determined on merit as the same was withdrawn by the plaintiff himself for
his failure to raise money for the purpose of visiting the locus in quo and
the last order of the Tribunal was as follows;
7 |Page
"Fanuel Mtengele kufuta shauri dhidi ya Aman
Makaye shauri No.uk/2016 iiifunguiiwa hapa
barazani tarehe 26/07/2016 na kusikiiizwa hadi
kufikia hatua ya baraza iiende iikaone eneo ia
mgogoro lakini mshitaki amete/ekeza shauri h iii na
baraza lilim hitaji atoe gharama ya baraza kwenda
shamba yeye kama mshtaki hakutaka kutoa.

Fanuei Mtengele kwa hiari yake aiifuta shauri hili


hivyo Ndugu Amin Makaye unakuwa huru kuendeiea
na shughuli kwenye eneo lako"

Basing on the above paragraph, land case No.37 of 2016 was not
decided on merit as to who is the lawfully owner of the disputed land.

Basing on the doctrine of res judicata as stipulated under section 9


of the Civil Procedure Code (supra) and as explained in the cases cited
above, it is my considered opinion that the Hon. Chairperson of the District
Land and Housing Tribunal misdirected himself to hold that the matter was
res judicata while the same does not meet the criteria of the doctrine of res
judicata. The Hon chairperson was supposed to decide the appeal on merit
rather than allowing the appeal for the reason that the suit was res
judicata.For the reason advanced above it is my opinion that this appeal
has merit the same is allowed. It is hereby ordered that the matter be
returned to the District land and Housing Tribunal of Iringa and the appeal

8 |Page
be tried afresh but before another Chairperson and another set of
assessors.

It is so ordered.

\
Date: 16/06/2020
Coram: Hon. F. N. Matogolo - Judge
L/A: B. Mwenda
Appellant:
%
Respondent^) Present
C/C: Grace

COURT:
Judgment delivered.

F.N. MATOGOLO

JUDGE

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