John Pius Tsoxho vs Herman Paulo Awe (Civil Appeal No. 525 of 2021) [2024] TZCA 1199 (5 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: NDIKA. J.A.. KITUSI. J.A.. And MASHAKA. J.A.^ CIVIL APPEAL NO. 525 OF 2021 JOHN PIUS TSOXHO ...................................................................... APPELLANT VERSUS HERMAN PAULO A W E .............................................................. RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania (District Registry of Arusha) at Arusha) (Mzuna, J.) dated the 11th day of December, 2020 in Land Appeal No. 3 of 2019 JUDGMENT OF THE COURT 25th November, & 5th December, 2024 MASHAKA. J.A.: Before us, the appellant John Pius Tsoxho, is dissatisfied with the decision of the High Court of Tanzania at Arusha in Land Appeal No. 3 of 2019 dated 11th December, 2020 which upheld the decision of the District Land and Housing Tribunal (the DLHT) at Karatu in Land Application No. 45 of 2018 that it is res judicata as the same matter was adjudicated to its finality in Land Application No. 68 of 1999. A short factual background of the case which led to this appeal is that the appellant had filed Land Case No. 68 of 1999 before the Customary Land Tribunal of Karatu District (the Customary Tribunal) against the respondent over the ownership of a piece of land (the suit land). The decision of the

Customary Tribunal was in favour of the respondent. Unsuccessfully, the appellant preferred his appeal to the Land Appeals Tribunal vide Appeal No. 24 of 2002 and also to the High Court via Civil Appeal No. 25 of 2004. The saga of the Land Case No. 68 of 1999 did not end there. Come 2016, the respondent, Herman Paulo Awe commenced the execution process vide Execution No. 63 of 2016 before the DLHT seeking to execute the decree of Land Application No. 68 of 1999 by evicting and restricting the appellant from entering the suit land. During the hearing of the execution proceedings, the appellant claimed that the alleged suit land was not sufficiently described because the size and boundaries were not stipulated. The DLHT was not persuaded with the arguments made by the appellant. It thus held if the appellant was dissatisfied by the Civil Appeal No. 25 of 2004 by Sambo, J (as he then was), he ought to have appealed before the Court of Appeal. It further held that since there was no appeal, then there was no other way than to execute the unchallenged decree and ordered the appellant to comply with the court orders within fourteen days, otherwise legal measures would be taken against him. The order in Execution No. 63 of 2016 led to the institution of the Land Application No. 45 of 2018 where in his pleadings the appellant at paragraph 6 (a) (i) stated: -

"(i) That th e a p p lica n t an d the respon d en t h ad a d isp u te o ve r a boundary o f th e ir re sp e ctive farm s, th e d isp u te w as litig a te d in th e C ustom ary Lan d T rib u n al o f K aratu D is tric t Lan d A p p lica tio n No. 68 o f 1999, C ustom ary Lan d A p p eals T rib u n al a t D a r e s Salaam Lan d A p p e a l No. 2 4 o f2002 a n d fin a lly in th e H igh C o u rt o f Tanzania C iv il A p p e a l No. 2 5 o f2004 w here b y th e d isp u te w as d ecid ed in fa v o r o f th e respond ent and as a result the respondent applied fo r execution o f the decree in the tribunal vide Application fo r Execution No. 63 o f 2016."[O ur em phasis] This paragraph 6 (a) (i) of the application compelled the respondent to raise two points of preliminary objection. One, that the Honorable Court lacks jurisdiction to entertain the application, and two, the application is incompetent before the Tribunal for being res judicata. The parties were given an opportunity to address the points of objection. After submissions, the trial Tribunal decided only the second point of objection that indeed the suit was res judicata and thus struck out the application. Aggrieved, the appellant appealed to the High Court vide Land Appeal No. 03 of 2019.

In that appeal, the High Court upheld the decision of the trial Tribunal by revisiting the principles of res judicata enshrined under section 9 of the Civil Procedure Code, Cap 33 R.E. 2019 (the CPC). It also relied on the case of Peniel Lotta v. Gabriel Tanaki & Others [2004] TLR 312 which outlined the five guidelines to be considered in determining the principle of res judicata. They are one, the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; two, the former suit must have been between the same litigating parties; three, the parties must have litigated under the same title in the former suit; four, the court which decided the former suit must have been competent to try the subsequent suit; and five, the matter in issue must have been heard and finally decided in the former suit. The High Court held that the above conditions existed in the former suit and had determined the matter to its finality. Referring to the case of Umoja Garage v. NBC Holding Corporation [2013] TLR 339, it held that by the time the previous suit was filed, the facts giving rise to the cause of action in the subsequent suit were known to the appellant, which means that the principle of res judicata applies. Based on the stated principle and the true facts of the litigated disputes, the High Court dismissed the appeal that it was res judicata.

Still dissatisfied, the appellant obtained leave to appeal to the Court of Appeal hence lodged this appeal based on three grounds of appeal: -

1. That, the appellate judge erred in law and in fact by holding that Land Application No. 45 o f 2018 is res judicata to Land Application No. 68 o f 1999 w ithout taking into consideration argum ents and authorities p u t forw ard by the appellant in h is subm ission and entire rejoinder subm ission file d on 12/10/2020.
2. That, appellate Judge erred in law and in fa ct by holding that Land Application No. 45 o f 2018 is res judicata to Land Application No. 68 o f 1999 w ithout ascertaining the size o f the land litig ated in both cases, its boundaries and date o r nature o f cause o f action if are the same.
3. That the appellate Judge erred in law and in fact by upholding decision o f the tria l tribunal which determ ined Land Application No. 45 o f 2018 a t prelim inary stage w ithout considering interests o f both parties, need fo r fin a l determ ination o f dispute and rig h t o f the appellant to be heard on m erit. Having perused diligently the written submissions by both parties and heard their oral submissions, the contentious issue for our determination is whether Land Application No. 45 of 2018 is res judicata to Land Application No. 68 of 1999. The argument by the appellant is that the cause of action

in Land Application No. 45 of 2018 differs from the one in Land Application No. 68 of 1999. It was his contention that in the latter application the issue for determination was the boundaries of the suit land and not ownership of the suit land. Likewise, he argued that the size of the suit land in Land Application No. 68 of 1999 was different from the one stated in Land Application No. 45 of 2018 which concerned 2 3/4 acres. He contended that the trial tribunal and first appellate court did not consider the size and boundaries hence, the cause of action was different. The respondent supported the findings of the first appellate court gathered at page 131 of the record of appeal and argued that the dispute over the suit land in Land Application No. 68 of 1999 was not on boundaries but on the ownership of the suit land. Upon our scrutiny of the arguments for and against, it is clear that the appellant's intention is to establish a fact that the cause of action in Land Application No. 45 of 2018 is not substantially the same as in Land Application No. 68 of 1999. Therefore, it does not fit within the principle of res judicata. Section 9 of the CPC has been expounded by the Court in a number of our decisions. In the case of The Registered Trustee of Chama cha

Mapinduzi v. Mohamed Ibrahim Versi and Sons and AM Mohamed Mohamed Versi, Civil Appeal 16 of 2008 (unreported), the Court observed: "It is w ell settled law and leading authorities are a t one, that in order fo r the plea o f res judicata to successfully operate, the follow ing conditions m ust be proved; namely, (i) the form er su it m ust have been between the same litig atin g parties o r between parties under whom they or any o f them claim ; (ii) the subject m atter directly and substantially in issue in the subsequent su it m ust be the same m atter which was directly and subsequently in issue in the form er su it either actually or constructively; (iii)th e party in the subsequent su it m ust have litig ated under the same title in the form er suit; (iv)the m atter m ust have been heard and fin a lly decided; ( v) That the form er su it m ust have been decided by a court o f com petentju risd ictio n ." In light of the excerpt, the grudge by the appellant is predicated on the second guideline that the cause of action in the Land Application No. 45 of 2018 is not substantially the same as in Land Application No. 68 of 1999.

A similar issue was discussed in the case of Badugu Ginning Co. Ltd v. CRDB Bank Pic & Others (Civil Appeal No. 65 of 2019) [2021] TZCA 158 (3 May 2021) in which we revisited the book by Mulla 'Code of Civil Procedure1 , 13th Edition, Vol. 1 (hereinafter referred as Mulla), where the phrase "matter directly and substantially in issue" is articulated at pages 55 to 56 that: "The law is accordingly w ell settled that to in vo ke th e b a r o f re s ju d ica ta , it is n o t n ecessary th a t th e cause o f a ctio n in th e tw o s u its sh o u ld be id e n tica l. I t is o n ly re q u ire d th a t th e m atte rs d ire c tly an d su b sta n tia lly in issu e sh o u ld be th e sam e in both su its.... E very m a tte r in re sp e ct o f w hich re lie f is cla im e d in a s u it is n e ce ssa rily a m a tte r "d ire ctly an d su b sta n tia lly ” in issu e . " [Our emphasis] In Land Application No. 68 of 1999, the basis of the complaint was ownership of the suit land as gleaned at page 94 of the record of appeal. As a result therefore, the Tribunal held that the respondent had been on the suit land since 1986 and had developed the same through the years and declared him the owner of the suit land. Revisiting the decision of the Customary Tribunal, it shows vividly that the dispute between the appellant and the respondent was on ownership of the suit land where the appellant

had alleged that the respondent had taken possession of his father's land. The respondent had been in possession of the suit land since 1986. Disputes concerning the boundaries arose after the death of Mzee Tara Amashay who had given the suit land to the respondent. As gathered at page 94 of the record, the evidence of John Gobore (PW2), Massong Baram (PW3) and Enoch Paulo (PW4) was on the dispute on boundaries between the appellant and respondent. On the part of the respondent he called three witnesses, namely Joackim Stephen (DW1), Laurent Moi (DW2) and Aloisi Minango (DW3) who were at that time the Chairman and members of the Village Land Committee respectively. They visited the suit land in dispute in 1992 concerning boundaries and placed a boundary of "katani, m inyaa na ku/ikuwa na m ti wa asi/i uitwao mdad'. As earlier alluded, this decision was upheld by the Appellate Land Tribunal vide Appeal No. 24 of 2002 and the appellant was displeased. He unsuccessfully appealed to the High Court of Tanzania at Arusha in Civil Appeal No. 25 of 2004 which upheld the decision in Appeal No. 24 of 2002 in the presence of both parties on 17/08/2009. It is our observation that the appellant did not appeal against the decision and ultimately the respondent instituted Execution No. 63 of 2016. The appellant raised objection to the said execution, it was overruled and the ruling entered in favour of the respondent on 20/01/2017.

Come 17/07/2018, the appellant instituted Land Application No. 45 of 2018 in which the cause of action is established under paragraph 6 (i) of the application: "That the applicant and the respondent had a dispute over a boundary o f the respective farm s, the dispute was litig ated in the Custom ary Land Tribunal o f Karatu D istrict Land Application No. 68 o f 1999, Custom ary Land Appeals Tribunal a t D ar es Salaam Land Appeal No. 24 o f 2002 and fin a lly in the High Court o f Tanzania C ivilAppelNo. 25 o f2004 whereby the dispute was decided in favour o f the respondent and as a result the respondent applied fo r execution o f the decree in the Tribunal vide Application fo r execution No. 63 o f 2016". The law is settled that a party is bound by own pleadings. In Maria Amandus Kavishe v. Norah Waziri Mzeru & Another (Civil Appeal No. 365 of 2019) [2023] TZCA 31 (20 February 2023 TANZLII) we held that parties are bound by their own pleadings and they cannot be allowed to raise a different matter without amendments being properly made and no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded. As construed by the appellant at paragraph 6 (ii) of his pleadings, that what the Court Broker handed to the respondent during execution was not the same as was awarded in Customary Land Application No. 68 of 1999, notwithstanding that the issue

remained on same litigated suit land. We ask ourselves, why the appellant was not clear in his pleadings on exactly what was different from Customary Land Application No. 68 of 1999. As per his pleadings at paragraphs 3 and 6 (i) he asserted that they had a dispute over a boundary of their respective farms which was litigated in Customary Land Application No. 68 of 1999, Customary Land Appeals Tribunal No. 24 of 2002 and High Court Civil Appeal No. 25 of 2004. In Badugu Ginning Co. Ltd v. CRDB Bank Pic & Others (supra), we observed that it is not compulsory for the cause of action in the two suits should be identical. It is only required that the matters are directly and substantially in issue and should be the same in both suits. Also, in respect of which relief is claimed in a suit is a matter "directly and substantially" in issue. In this appeal, much as the appellant has stated so in paragraph 6 (a) (i) of his pleadings and his claims for relief includes the eviction of the respondent from the suit land and he be declared the lawful owner of the said land. We note that the pleadings in Land Application No. 45 of 2018 did not disclose what was done by the respondent to mislead the court broker and how the same affected the appellant. In absence of such clarity of pleadings and failure in disclosing the kind of misinformation by the court broker which affected the rights of the appellant, a conclusion would be that the appellant's grievance is still over the same suit land which was determined li

in Land Application No. 68 of 1999 between the same parties, under the same names and on the same issue concerning ownership of suit land and its boundary. It is clear that when determining ownership of land, one of the main issues is to establish the dispute area/land according to the set boundaries which were placed and recognised by the local government leadership of the said village or area. Additionally, at page 26 of the record of appeal the appellant annexed a letter by the Chairman of Mangafi Hamlet dated 21/4/2017, addressed to the Chairman of the DLHT of Karatu District complaining that the respondent misguided the court broker over the land he deserved. The letter does not deny the fact that the land given to the respondent was the very same land that was involved in the Land Application No. 68 of 1999. What it adds is that the execution encroached and took some part of land belonging to one Paulo Pius and not the appellant (see page 27 of the record of appeal). Going by the said letter, the aggrieved person who ought to have raised a complaint against the respondent on the misled execution is Paulo Pius and not the appellant through objection proceedings or filing a new suit. In the circumstances, the cause of action in Land Application No. 45 of 2018 is substantially the same with Land Application No. 68 of 1999 and it cannot change the fact that Land Appeal No. 45 of 2018 is res judicata to Land Appeal No. 68 ofl999 as correctly held by the High Court. In the

circumstances, we do not find cogent reasons to vary the decision of the High Court in Land Appeal No. 03 of 2019. Consequently, the appeal is dismissed in its entirety with costs. DATED at ARUSHA this 5th day of December, 2024 G. A. M. NDIKA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL Judgment delivered this 5th day of December, 2024 in presence of appellant and respondent in persons - unrepresented is hereby certified as a true copy of the original.