Vicky Edward Mollel vs Nasi Muruo (Civil Appeal No. 61 of 2023) [2025] TZCA 1307 (22 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: LILA. J.A., FIKIRINI, J.A., And RUMANYIKA. J.A.^ CIVIL APPEAL NO. 61 OF 2023 VICKY EDWARD MOLLEL {As Administratrix o f the Estate O f the /ate EDWARD LENJASHI)........................... .................. APPELLANT VERSUS NASI MURUO.................................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Arusha) (Massenoi. 3 .^ dated 24th day of November, 2016 in Civil Appeal No. 09 of 2016 JUDGMENT OF THE COURT 15th Oct & 22n d Dec, 2025 FIKIRINI. J.A.: The appellant, Vicky Edward Mollel, an Administratrix of the estate of the late Edward Lenjashi, her late husband is dissatisfied with the decision of the High Court of Tanzania at Arusha in Civil Appeal No. 9 of 2016, which upheld the findings of the Resident Magistrate's Court of Arusha (the RM's Court) in Civil Case No. 19 of 2001.

The dispute in this matter dates back to 1977, when the late Edward Lenjashi unsuccessfully filed Land Dispute No. 91 of 1977 against the respondent, Nasi Muruo, before the defunct Arusha Regional Customary Land Tribunal (the Customary Tribunal), alleging unlawful encroachment on his land. Dissatisfied with the outcome, the appellant appealed to the Land Appeal Tribunal in Dar es Salaam via Appeal No. 101 of 2000, which upheld the decision of the Customary Tribunal. Still pursuing his claim, the appellant instituted Civil Case No. 19 of 2001 before the RM's Court. Upon receiving the plaint, the respondent filed a written statement of defence dated 26th January 2011, found on page 198 of the record of appeal, raising preliminary objections (POs), including that the matter was res judicata. In its ruling dated 22n d July 2011, found on page 461 of the record of appeal, the trial court overruled the POs, holding that the question of whether the suit was identical to the one previously determined by the Customary Tribunal was a factual issue requiring proof. Consequently, the issue was framed and recorded for determination on 7th September, 2012, as indicated on page 468 of the record.

After hearing both parties and relying on section 9 of the Civil Procedure Code, Cap. 33 (the CPC), the RM's Court held that the judgments of the Customary Tribunal dated 22n d May, 1979, found on page 204 of the record and the Land Appeal Tribunal dated 7th October, 2000, on page 208, barred the suit. Nonetheless, the trial magistrate declared the respondent the lawful owner of the disputed land and awarded the appellant compensation amounting to TZS 30,429,228/=. Dissatisfied, the appellant appealed to the High Court of Tanzania at Arusha, challenging the RM's Court decision. However, the High Court upheld the finding that the matter was res judicata . Undeterred, the appellant has approached the Court. In the present appeal, the appellant seeks to overturn the lower courts' findings. Although four grounds of appeal were initially raised, they were consolidated, per the appellant's counsel's submission, into a single issue paraphrased as such: whether the learned High Court Judge erred in concluding that Civil Case No. 19 o f 2001 was res judicata to Land Dispute No. 91 o f1977and Appeal No. 101 o f2000.

Appearing for their respective parties, the appellant and the respondent were Messrs. John Faustin Materu, Hamis Mkindi, and Lengai Nelson Merinyo, all learned advocates. The appellant was also present in Court, in person. Before the appeal could be heard, the respondent's counsel raised a legal point of objection, arguing that the appeal was improperly before the Court, even prior to the Court's order dated 30th November, 2022. The notice of appeal filed on 8th December, 2016, preceded by a letter to the Registrar dated 29th November, 2016, at page 506, was not acted upon for nearly 5 months. Later, the appellant requested a certificate of delay, which the Registrar declined, concluding that the appellant had slept on his rights. Despite this, the appellant lodged his memorandum and record of appeal without a certificate of delay. The appeal was subsequently withdrawn as shown on page 520 of the record, with leave to refile within sixty (60) days. The respondent's counsel maintained that the Court's order dated 30th November, 2022, did not override the dictates of Rule 90 (1) of the

Tanzania Court of Appeal Rules, 2009 (the Rules). He cited Emmanuel Nyambi v. Ramadhani Salim, (Civil Appeal No. 84 of 2014) [2015] TZCA 276, where the Court emphasized that leave granted out of time must comply with procedural rules. He argued that the appellant sought to refile the appeal through the "back door," having withdrawn a time-barred appeal. Since limitation issues can be raised at any stage, the respondent moved the Court before the hearing commenced. He cited Tanzania Revenue Authority v. Tango Transport Co. Ltd (Civil Appeal No. 84 of 2009) [2016] TZCA 84 (27 October 2016; TANZLII), noting that the appellant had nearly four years and five months of unaccounted delay. The respondent's counsel further argued that the withdrawal nullified the notice of appeal filed on 8th December, 2016. A fresh notice of appeal, memorandum, and record should have preceded any refilling. In the present appeal, no fresh notice was filed, and the appellant continued to rely on the invalidated notice. Even assuming reliance on the original notice was proper, no certificate of delay was provided. He therefore prayed for the appeal to be struck out, with no order as to

costs, noting that the respondent is supported by the Legal and Human Rights Centre. When asked whether the Court's order dated 30th November, 2022, could be challenged in the absence of a review application, counsel responded that the order stood and could not be altered. In reply, the appellant's counsel argued that the withdrawal was made under Rule 102(1) of the Rules, which permits withdrawal of appeals, and Rule 4(1) and (2)(b), which empowers the Court to issue orders to meet the ends of justice. The Court rightly permitted withdrawal with leave to refile within sixty (60) days. He emphasized that the Court order did not require a fresh notice of appeal and remains valid unless revised or nullified. He urged the Court to dismiss the PO, asserting that he was in full compliance with the Court's directive. Having considered the submissions, we find no merit in the PO. The Court order dated 30th November, 2022, clearly required the appeal to be refiled within sixty (60) days. It did not stipulate the filing of a fresh notice of appeal or any other procedural requirements. Revisiting

the order would, in our view, amount to a review, which is beyond the scope of this panel. Accordingly, the PO is hereby overruled and dismissed. The hearing of the appeal proceeded as scheduled. The appellant filed written submission on 7th March, 2023, and prayed to adopt it, and argue the 1s t, 2n d and 3r d grounds together. His task was thus to persuade us to share his position on " whether the learned High Court judge erred in holding that Civil Case No. 19 of 2001 before the Resident Magistrate's Court o f Arusha was res judicata to Land Dispute No. 91 o f 1977 before the Arusha Regional Customary Land Tribunal and Land Appeal No. 101 o f2000 before the Land Appeal Tribunal in Dar es Salaam." The learned counsel submitted that the lower courts erred in holding that the suit was res judicata because the subject matter of the two disputes was not identical. He argued that the record of appeal, particularly at pages 71-73, reveals that the boundaries of the land in dispute in Civil Case No. 19 of 2001 were not described in Land Dispute No. 91 of 1977. 7

Counsel contended that there was no sketch map or clear boundary description in the earlier proceedings and, therefore, the subject matter could not be said to be the same. He cited the case of Stephen Masato Wasira v. Joseph Warioba and Another [1999] T.L.R 334 and Registered Trustees of CCM v. Mohamed Ibrahim and Sons, to emphasize that for res judicata to apply, the subject matter and parties must be identical. He further submitted that the alleged sketch map was drawn after judgment and could not be relied upon, as the Tribunal had already become functus officio. He thus prayed that the appeal be allowed and the matter be remitted for the determination of the remaining grounds. On the other hand, learned counsel for the respondent maintained that the appeal is devoid of merit. He submitted that the record at page 389 clearly contains a sketch map of the disputed land prepared during the Tribunal's visit to the locus in quo. The exact boundaries were reiterated by DW1 and DW4, who participated in the said visit. He argued that the plaint in Civil Case No. 19 of 2001 substantially reflected the same description of the land as in Land Dispute No. 91 of

1977, except for a minor difference on the southern boundary, which does not affect the identity of the subject matter. To him, the learned High Court Judge was correct in holding that the two disputes involved the same land, parties, and cause of action, thereby satisfying the conditions under section 9 of the CPC. He relied on Umoja Garage v. NBC Holding Corporation [2003] T.L.R. 339 and Saul Henry Amon and Another v. Hamis Bushir Pazi and Others, Civil Application No. 264 of 2016 [2024] TZCA 275, stressing the public policy that litigation must come to an end. He thus prayed that the appeal be dismissed with costs. In a brief rejoinder, Mr. Materu reiterated that the sketch map was not part of the evidence at the time of judgment and, therefore, could not be relied upon to establish similarity of the subject matter. He insisted that the respondent, who raised the plea of res judicata, bore the burden of proof, which she failed to discharge. A careful consideration of the record of appeal, the submissions of [earned counsel, and the decisions of the two courts below would evidently assist us in the determination of this appeal.

The main issue for determination is whether Civil Case No. 19 of 2001 before the RM's Court was res judicata to Land Dispute No. 91 of 1977 and Land Appeal No. 101 of 2000. It is a settled principle of law, as codified under section 11 (formerly section 9) of the Civil Procedure Code, R.E. 2023, that courts are barred from trying any suit or issue in which the matter directly and substantially in issue has already been directly and substantially in issue in a former suit between the same parties, or parties claiming under them, litigating under the same title, before a court competent to try the subsequent suit, and which has been heard and finally decided. See: Peniel Lotta v. Gabriel Tanaki and 2 Others (Civil Appeal No. 61 of 2001) [2001] TZCA 16 (14 September 2001; TANZLII). In the present appeal, it is undisputed that the parties in all proceedings, before both the Tribunals and the courts, are the same; the appellant and the respondent. The cause of action also concerns ownership of the same parcel of land, albeit described with minor variations. On page 389 of the record, a sketch map prepared during the Customary Tribunal's visit to the locus in quo delineates the boundaries of the disputed land. Although the appellant contested the timing of the 10

sketch map's creation, the same description substantially appears in the plaint on page 126 of the record. The disputed land is described as measuring 241 paces by 156 paces, with the following boundaries as stated in paragraph 3 of the plaint: to the north, the property of the late Sindiko Sanare; to the south, the property of the late Momoi; to the east, Sinon Primary School; and to the west, the property of the late Lemesenga. Furthermore, the appellant's own testimony on page 469 aligns with the boundaries shown in Exhibit D1 from the earlier dispute. Even if the sketch map is disregarded, the testimonies of DW1 and DW4 sufficiently establish the boundaries of the disputed land. Notably, DW4 confirmed on page 436 that the land in question is the same parcel visited by Tribunal members, who measured it and ultimately ruled in favour of the respondent. In the worst-case scenario, if the appellant cannot adequately describe his own alleged property, then, on the balance of probabilities, the respondent benefits. It is an established principle in our jurisdiction that parties are bound by their own pleadings. In Paulina Samson Ndawavya v. Theresia Thomasi Madaha (Civil Appeal No. 45 of li

2017. [2019] TZCA 453 (11 December 2019; TANZLII), the Court of Appeal reiterated this at page 13: "The other remark which we find ourselves compelled to make relates to pleadings. In doing so we cannot do better than reiterate what we said in James Funke Gwagilo v. Attorney General [2004] T.L.R 161 whereby we underscored the function o f pleadings being to put notice o f the case which the opponent has to make lest he is taken by surprise... parties are bound by their own pleadings and... no party should be allowed to depart from his pleadings... evidence on record must support the pleaded facts... disparities between facts pleaded and evidence results in discarding the evidence". [Emphasis added] Upon a comprehensive review of the evidence on record, we find no substance in the appellant's assertion that the subject matter differs. The notion that the parties have been engaged in litigation over an indeterminate parcel of land is untenable. We decline to be drawn into such a trap. In agreement with the High Court's determination, we 12

affirm that the delineated boundaries and location clearly establish that the dispute pertains to the same parcel of land previously adjudicated upon by both the Customary Tribunal and the Land Appeal Tribunal. Moreover, the Customary Tribunal, established under section 8 of the Customary Leasehold (Enforcement) Act, 1968, was a competent body with jurisdiction over such matters. Its decision was upheld by the Land Appeal Tribunal in 2000. Accordingly, the judgment was final and conclusive between the same parties on the same subject matter. Although not absolute, it is a firm position, that appellate courts should rarely interfere with concurrent factual findings of lower courts unless exceptional circumstances exist, which in the present appeal, nothing exists requiring that attention. It is therefore our considered view that all the essential ingredients of res judicata were satisfied. Consequently, Civil Case No. 19 of 2001 was barred under section 11 of the CPC. In Umoja Garage (supra), the Court held: "Since by the time the previous suit was heard, the facts giving rise to the cause o f action in the subsequent suit were known to the appellant, the 13

matter raised in the subsequent case are deemed to have been a matter, directiy and substantially in issue in the previous case, and the principle o f res judicata applies". The claim that one boundary was unnamed does not alter the identity of the subject matter. The other three boundaries were clearly identified, and given that land is immovable and boundaries do not easily change, we conclude that the disputed property is substantially the same. Litigation, as we have often reiterated, must come to an end. The appellant's persistent attempt to reopen a matter conclusively settled more than four decades ago runs contrary to the principle of finality in litigation. For the foregoing reasons, we find the appeal devoid of merit. The High Court was correct in upholding the Resident Magistrate's Court's finding that Civil Case No. 19 of 2001 was res judicata to Land Dispute No. 91 of 1977 and Land Appeal No. 101 of 2000. 14

The appeal is dismissed in its entirety, with costs, and execution to proceed as ordered by the Land Appeal Tribunal in Land Appeal No. 101 of 2000 on 7th October, 2000. DATED at DODOMA this 19th day of December, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Judgment delivered through virtual court this 22n d day of December, 2025 in the presence of Mr. Mitego Methusela, learned counsel for the appellant and Mr. Hamis Mkindi, learned counsel for the respondent and Ms. Harida Hamisi, Court Clerk; is hereby certified as a true copy of the original.