Mwenyekiti wa Kata C.C.M. Igawilo vs Saidi Kaswaga (PC Civil Appeal No. 41 of 1999) [1999] TZHC 244 (8 December 1999)

L... E-=•. IJ THE HIGH COURT OFTANZNIA AT ttBEYA PC CIVIL APPEAL NO. 41 OF 1999 (Fron the decision of the District Court of Foeya District at 1beya in Civil Appeal No. 4 of 1999 — Original Uyole Primary Court • Civil. Case No. 14 of 1998 BEFORE: P. A. LYITO — RESIDENT AGISTM)

. 1WENYEKITI WAKATA C.C.M. IGAWILO APPELLANT VERSUS SJtII1I ICASWAA . . • • . . . • . . . • a • . . • RESPONDENT

JUDGEI"ENT In this appeal the advocate for the responent the learned Mr. 1ushokorwa (Adv.) has raised preliminary points which bcve been argued together with the main appeal that the 'suit was void f or the res judicata doctrine applied to it.. He citecl.the previous cases which decided thair dispute.prior to the present case as being a Ward Tribunal Case No. 31/93 which ended up as Uyole Primary Court Civil Appeal No. 3/1993 as well as Uyole Primary Court Civil Case No. 9/96. The same previous decisions were produced by the respondent as trial the defendant at the of this case (Pc) Uyole Civil Case No. 14/1998 as exhibits A — When a doctrine of res judicata is raised the court. must take great pain to satisfy itself that the doctrine applies ar doesn't for if it applies it precludes the continuation of thp new case with grave consequences to the plaintiff who is therefrom estopped from prosecuting his complaint forever. a..!

.- 2.- The possibility of having this doctrine applied in this cae was known and datided upon by the trial primary court of Uyole in the present'case. All the parties too were aware of the possible application of this doctrine in this case i.e. appellant as plaintiff through but the trial and through his witnesses. When the complaint was read over to the respondent as defendant on 13/10/98 he denied liability on- rësons that the case had started along. time since 1993 and that the appellant did not appeal in 1995 and. again in 1996 the suit against him was dismissed onthe same ground of res judicata In his teztinionyPW.1.Yesaya Nwambungu explained that the )unicipal Director told him that he would counter-check with the Ward Tribunal and court assessors if there was a previous judgement on this plot and the l2tter of the Iunicipal Director dated 16/10/97 with ref flC11q.20/14/VOL.II/2 wa•s produced by the respondent as Exhibit L) in which the

that Eunicipal Solicitor (IVr. K.Y. Luanda)told the appe11antis iniiestigation had proved that there was a crurt decision giving right of ownership of the plot to the respondents by the UyolePrirnary Court Civil Case-No. 9/96 decided on 27/3/96 thatthe doctrine of res judicata applied. PW,4 about Jailos FWakingili testified the previous cases as hav.g not existed at alL PW. 5 Geoige Kalabwa admitted to have opened up a Civil Case against the respondent previoualywhich was dismissed without being heard, (This is Civil Case No. 9/96 Uyole Primary Court) PW.6 Rabani I'iwakingili on cross examination by the 1st gent1enithi assessor testified that there was a- previous case with tI-ie.respondent. -: .1.13

—3-- The respondent in his defence relied heavily on the doctrine of res judicata 0 He testified to have been sued in. 1993 to have the cattle pen remoVed at the, ward tribunal where he lost and was fined but won on appeal at the Primary Court of Uyole. L i ......... - 11'? He was sued again in 1996.as per his testimony by George but the 2nd case was found to be res judicata. He produced the previous court decisions in his favour. _3 4 1 of his defence on oath rested on the resjudicata principle as having protected him from this suit which specificaUy sued him as being in unlawful ownership of the plot in question and for having unlawfully built by force some houses on it and for having been invited to keep his ,cattle pen for tenorary use only, So far the issue of the applicability of the doctrine of res judicata in this case has been dealt with by both two lower courts as follows: The Primary Court of Uyole held as follows - I quote from the judgement of the Primary Court by the learned Tr. Kipomela (PCN) and the two gentlemen assessors Jailos and Robati:- Madai h ayo yalipo so mewa rndaiwa hakukub aliart na1isema Kiwanja hicho ni chake, alipewa na CC1 M,daka 1991 na kwamba kesi hiyo ilisikilizwa 1waka 1993 na yeye alipata ushindi Nwaka 1996 kesi ilifutwa tena baada ya kuona yeye mciaiwa alipata ushindi. Nahakama hii baada ya kuona hukumu anayodai mdaiwa alipata ushindi ilionekana madai hayo yalikuwa Nradi wa Ivaji dhidi ya Ndaiwa iii ahainishe zizi la ng'ombe siyo kiwanja chote. 'Na sasa

mdaiwa anadaiwa na Iwenyekiti wa 0CM wa Kata ill mdaiwa kuacha kiwanja chote. LI.ivyo haiwezi-- ikawa res jud5..cáta inashauri yaliyokwisha hukumiwa. Ndipo ushahidi üpande Wa madai r F -- ulianza kupokelewa mahakamaii kwa kuanzia na mdai' The quoted Swahili portion of the judgement of the trial court means in Englih inanutshell that the offence of the defendant set up in the pladings that he was already adjudged the owner of that plot in two cases of 1993 and 1996 therefore he can not be re—sued on the same issue was found to be inapplicable because after going through the relevant two judgements the trial court was satisfied that the previous suits involved the defendant and the Water Project in which.cases the dfendant was sued in order, te for himtvacate his cattle pen wheras here he was being sued for the ownership of the entire plot.. So the doctrine of resjudicata didn't apply to him and he could not benefit from it. The trial was allowed to cOntinue starting with the plaintiff. At the level of the District Court as first appellate.' court.the issue of the res judicatd was also dealt with in these words; I quote from the judgment of the District Court of 1eya delivered by the learned Mr. Lyimo (RN.):- "After going through the lower court's record, I have discovered that this dispute was settled in Civil Appeal 11o. 13/1993 of Uyole Primary Court whereby the Ward Tribunal lad ordered the appellant to vacate the suit premises. But, the Primary Coirt allowed the appeal and declared the appellant the rightful / 0 0415

-5- owner of the said plot. Thi ws on 13/4/93 There was no appeal. Since the appellant has not been disturbed there was no issue raised in the apjeal that the said plot waá the proprty of CCI." This way, the first appellate court overruled the trial 6ourt's finding that the doctrine of res judicata did not apply and made the opposite finding that the doctrine of res judicata applied to this case. I have gone through the entire earlIer ciecisionsof the lower court:except for the judgement of the Igawilo Ward Tribunal which was not produced as exhibit in this triala But:there is no doubt that such acase did exist and it ................................. involved the respondent as the acüsed an anapparently criminal case although the appeal thereof to the Primary Court was registered as (Daawa) Civil AQpa1 \Io. 311993, between .3aidKaswaga as appellant and Ptrai warajiIgawilo as the respondent. From the juagernent of the same Uyole Primary Court Civil Appeal No. 3/1993 the factUal background of the case is given it clearly showsthat the respondent Saidi Kaswaga was charged cr.iminaly under $cction. 184 of the Penal Code for fouling water with the complainant who was I1radi wa Iaji Igawilo (Water Project IgEiilo). The relevant S. 184 of the Penal Code provides as follows:- corrupts 11 184. Any person who voluntarily or fouls the water of any public spring or reservi' so as to render it less fit for the purpose for which it is ordinarily used, is guilty of a misdemeanor." The alleged fouling acts of the respondent were that he kept 9 .16

6 - a cattle pen near a public water pipe connector (BBT) and that his cattle used to tramle upon the same water way and break/damage the water way.. constructions. The Ward Tribunal of Igawilo found him guilty and find him Shs2,000/= as well as ordered him to remove the cattle pen or, change the posItioning of the doors of the pen so that the cattle could get into and out of the pen fror another direction far away from the public water course. On appeal to the Primary Court he was ecquitted from the conviQtion and allowed to keep his cattle pen as it was becaue the primary court held that the water course had: been built strongly with hard covers which were not affected by the cattle rno'rement on the water course so as to foul it or polute it. That Ward Tribunal Case and its appeal to the prima±'y court.'is what the District Court has held that it operated as a res judicata in this. case. That was a wrong decision because the parties were different.for in ;he Ward Tribunai Case the c ,.-., r.nplainant was the Igawilo Water Project versus the respondent Said Kaswaga whereas here e. paties are the Chairman of CCY Igawilo Ward Vs. Saidi Kaswda, The Ward Tribunal Case was a criminal one whereas this is a civil case. Ioreover, the Ward Tribunal Case :elateda andthe of subject matter of water fouling use ,the cattle pen and the of L keepinLthe cattle in it and sorrounding the pen and water course whereas here the subject matter j about i

• wner- ship of the plot itself. The appellants o±'al arguments made by th. Crmn of CCM Igawilo that there has never been any :ac r2cided between the two present adversary parties -is quite correct. IndeedNo suit wasever dealt between them so as to amount to /7

the application of the doctrine of res judicata. The othr réferrd case is Civil Case No. 9/1996 between these two parties,6 This was sued by George Kalembwe as plaintiff on behalf of CCN Igawilo Vsi the xespondent Saidi Kaswaga When so sued the respondent coim4ained to the DR? (District Resideiit 1agistate) that the suit was res udicata and the directedtka Primary Court Iagistrate In-Charge Thianjelwa y his letter TA/DM/IBY/5/VOLVIII/2l of 19/3/96 in respect of Civil Case No 9/96 the .P.C.. that he IvwanjelwaLshould coordinate with the Uyole Primary Cou%.to. ee if the previous cases emanated from the same cause Of action between the same parties. As a result of this coordination beeen Fwanjelwa Primary Court and Uyole Primary Ccurt the P.C.I. Uyole made a ruling on 27/3/96 a follows in respect of Cill Case No. 9/1996 George Kaleinb.e. Chairman CCII Igawilo Vs. Saidi Kaswaga:-. Kufuatana na bara ya Hakimu Ifawidhi ni 0 kwamba shauri hili lilishasikilizwa katika Tahakarna ya I1wanzo Uyole yenye rnairaaka sawq na hii. Hivyo, haliwezi kuendelea kusikilizwa bali aliyeshindwa kama hakuricihika ni jukumu lake kuomba rufaa mahakama ya juu." The quoted order of the Primary Court Uyole is to the effept that (in English) the case had already been adjudicated upon by a primary court of Uyole which has conorreitjurs- diction with the Iwanjelwa Primary Court and therefore the - case cn not be admitted again. It is upon the dissatisfied party to appeal to a higher court, and not to open a fresh suit. undertook Again the I'unicipal Director when / to survey the plot

• for purposes of issuing a certificate of Right of 0 ,,8

-8- he Occupancy over the same plot on 16/10/1997Lrebuked the Secretary of CCM Igawilo for disobeying lthwful orders of the court i.e. Ward Tribunal Case and Civil Appeal No 3/93 and Civil Case No. 9/1996 whichthe said granted ownership of the plot to the respondent. All thee decisions were gravely erronous and purported tb onfer ownership of the.plot to the respondent whereas there is no such court decision which decided so ever. The preliminary point of the learned I•r. I"iushokorwa (A4.) that the doctrine of res judiöata applied is base1ess No such doctrine exists here, The other argument that the case started from the ward tribunal and cannot come tothis'durt on appeal under. Section 20 (3) of . the Wrc1 Tribunal Act 1985 vhich terminates at the District Court a its final Court f Appeal again is misconceivd for the present case did not start from the Ward Tribunal butfoñthoprirnary court. Also the Case which started from the Ward: Tribunal was a criminal case and between different parties from the present appellant CCM Igawilo. The main grounds of appeal are that there was enough ,idence by 6 prosecution witnesés ho showed the plot in dispute as belonging to CCN for public liability of building a dispensary/clinic etc. but that the same evidence was kept aside without justification. The learned 14 , 0 Nushokorwa, Adv has contended that the respondent stayed in that land for over 19 years without disturbance and has built permanent structures which entitle hi-rn under the doctrine adverse possession to own the plot in question. In this own defence and on several occasions the 9 19

• 9 - respondent doesn't dispute the original owner of the plot as being CON Igawilo, As DW.l the respondent testified o n oath as follows: I quote him 'from the primary court procee- dings of his testimony:- NI rnwaka 1981 ndiyo nilipewa na CCIS4 eneo hilo ninalodaiwa ñilijenga nyumba. Nimekaa hapo rnpaka 1993 ndipo nillshtakiwa na Nenyokit± wa CON kwenye Baraza la Kata nikiambiwa niondoc zizi la Ng'ombe. 19 In English theuoted'portj..on means that the respondent testified as DW.1 to the effect that it was in 1981 when CCN gave him that plot and.he stayed on it until 1993 when they sued him in the Ward Tribunal for him to remove,,the cattle pen. From the testimony of all plaintiffts witnesses who
• were six the area in dispute is a big one measuring not less than one ac±e.' The satne area has been shown in the sketch plan of the Primary Court when1isited the scene. From this map the size of the area has a circurnferencia1'ea of 293 paces or 293 yards/metres, if we estimate a pace step - as being equal 'to 1 metre or 1 yarL An acre ° has a circuTftferenc- area OX ~ 8O yards/paces/metres. 1 his area is more than one acre in size. In it there are shown the cattle pen and the three' buildings of the respondent built on it leaving still a big empty area in between especially towards the front of the houses facing the Footpath shown in the map. The respondent has maintained that he was given the area by CCN himself who has sued him. He testified that the one who gave him was the then Chairman of the CCN in the.

I

• 10 -. aea one George in these words: I quote from his testimony when cross examined by the con1ainant Yesaya Iwambungu the present Chairman of CCM of that Ward: Ni1ipewana CCYj niwaka 1991 na Ndugu George na aliyenishtaki ni George. Sijawahi kuvarnia kiwanja hicho. Njlishtakiwa kuhusu Ng'ombe kuchafua kwenye zizi.,, 0 Cross examined by the 1st gentleman assessor Jailos the respondent testified further that:- Aliyenishtaki ni George akiwa Iwenyekiti wa CCM na nilirnahinda kesi ilikuwa painoja na kuhamisha zizi pamoja na niimi,' The quoted two portions are the respondentts: testi•mon when cross examined by the con1ainant and theist gentleman assessor Jailos to the effect. tha: it was Georg.e while he was the Chairman of CCM who gave him that plotand later on sued him in.. court but he won the case both in respect of removing the cattle pen and .yacating the entire p1ot and thatthe:(CC'i) sued him even in 1993 for fouling the water. It was not true that it was CCY who sued him in 1993 for fouling water. It was true that George as Chairman sued him in 1993 in Civil Case No, 9/93 which was terminated by the primary court on ground that it was bound by res-judicata. Of course,I have already held that there was no res judicata applicable here. The said George testified as PW.5 and disputed to have ever given him that plot. During his reign as Chairman of CCN of.. Igawilo there was only a cattle pen and the area was dispensary or clinic for building a L .. and that in 1991 the respondent '1 -,

.4 4

• 11 - agreed to remove the cattle pen. It is after 1991 when full 112 the respondent went intoforce 1 building the houses cattle pen. To start with the issue of the cattle pen from the testimonies of PW.2 Njendt Kwandani who was the CCI Chairman for a long time since 1971. He testified that they left that area for public utility of building a clinic and another for building a church. He testified that they invited him or lent him (tulimwazima)' to built a eattle pen. It was this witness who orally lent the area for catt1e pen. PW.3 Elirnu s/o Mwalyego is the village Secretary who got the letter of the respondent exhibit' A in which, the respondent promised to remove., his cattle pen in 1991. This letter has been disputed by the learned Mr. Pushokorw (Adv.) as having not been written by the respondent and that it was admitted after the respondent had testified. The denial of this letter now is after thought for when it was admitted while PW.1 was testifying he did not disputed it. PW.4 Jailos Fwakingili was the village chairman in

• ' 1991 when the respondent wrote the letter proraissing to pernove the cattle pen. The evidence of the plaintiff strongly established that the respondent was just invited to build a cattle pen from around 1974 onwards An invittee doesn't acquire was use it ownership of the area,. He allowed toLtemPoraly Cattle pen is not a permanent fixture to the land which can formparc of the land. Even in the sketch plan;drawn by the primary court the cattle pen is shown differently fence from the houses,, A cattle pen is a temorarYstructure which can be removed at any time the vendor wants him to • , . /12

• 12 - vacate. yl99l CCM told him to vacate and he agreed to do so. But, instead of getting out he started to built permanent houses. In the testithoiy. Of PWl and PL they all had no problem with the respondent keeping the cattle pen there. But, when he started to built houses and to survey it for purporses of having a certificate of Right of Occupancy they took steps to sue him and to •. remove the surveyers beacons and went to report to the police, Municipal Director, D.C. etc 0 etc. They took steps to thwart any adverse doctrine from applying. Up to 1993 ther.e was still no house built tiere excepfor the cattle pen. The decision of the primary, court in 'civil appeal No. 3/1993 in which he gave the rsporident the wrong impression that he had been given ownership of the land by the said court. The respondents use of a portionOf the land for a cattle pen from 1974 onwards until 1993 when he was criminally charged did not entitle hini' to have the doOtrine of adverse possession apply to hihi in his favoui" because the vendor was keen that no use of the land by the invittee was done beyond their permission. He used the pen for keeping the cattle for butcher business0 It was a pen for the temporary use of keeping cattle for slaughtering them for his butchery as per clarification made by the appellant when arguing this appeal. The appellant has explained on appeal here that there are still ip to now 20,000 burnt bricks made at the plot for building the dispensary. Although the story of there being bricks made from the soil of the same plot for building a clinic doesn't feature in the plaintiff's evidence in the trial court it is a plausible explanation stemming from the public 90./13

. 13 - use öf" th? area for building the clinic. The doctrine of ädvers possession would have applied to the 3 permanent houses built. Butthe•t1ve years had not yet elapsed when the doctrine would be applicable to the appellant. The houses have been built starting in 1993 or at earliest in 1991 before which period there was only the cattle pen. By 1996 the appellant already sued the res- pondent for their vacant 'possession of the plot.. They were wrongly stopped by the primary court from doing so.irIn 1998' they repeated again to sue as per this case. In 1997 they protested with Iuniqipa1 authorities, D.C. etc. about it and pulled off the surveys beacons on the plot. They. exrted their ownership. rights over the plot from 1991 onwards that it is impossible to assume that the respondent or any other reasonable team would have 'doubted 'as to who was the owner of the plot or ,ciai,mant'bf the j1ots. The Njunicipal Director, the primary court'of"Uyole, in its judgement of the learned Mr. Kipomela (PCN) in 1998. and 4 : the primary court jud.gement of 27/9/94 bcf öre the learned r4r, Nwanibapa (SPC?) cormented about, CCI"i under multi party system having no monopbly on plots which formally used to belong to itas single party and, as. a state:porty. These comments were unfortunata and unwarranted because even .nc].er the multiparty system any political , party own property other and land. In this plot there. was no Z claimant of the plot besides the appellant and recently,the respondeilt. But, even the r?spondent testified to have acquired' the party from the CCI"i party. Tii is no issue o. itipry claims over the plot in dispute.. ' By the. time the respondent was building the houses .4

-14- by hooks nd crocks and even by the surveying of the plot he was under the unlawful belief that the. primary court of Uyole ha& conferred ownership of the plot on him from their original owners CCM and forn the court decision which was not the case. On a b1ahce of probability no property on the land in disputehad been transferred to him from ccc0 Both the appellant as per evidence of PWI1 told him not to built the houses therein this words:- Basi tulienda •kwa D.C. mimi na Mwenyëkiti nae rnclaiwa allitwa na kuelezwa asijenge nyumba hiyo pale. Baada ya kuamua DC, huyo aliweka watu wamejenga nyumba usiku na mchana kwa kuturnia rnabavu Thequoted portion means in Eiiglish that the Respondent and the witness and the Chairman went to the D.C. (District Commissioner) nd the respondent as told not to build the house there. But, he thendid the opposite by putting people to build thehouse by clay 'andnight and by force. From the above testinonies the respondent had nobody else to back up his claims whereas a1 the 6 prose cution witnesses showed that the respondent was a mere invittee. The decision of the two gentlemen assessors JailoandRobati was the correct one. The dssenting verdict of the primary court 'rnagi%trate the learned Mr, Kipomela (PCM) and the appellate Resident Magistrate were all erronous. The decisiOn of the District Court is quashed. The major1ty decision of the primCry court is reinstated. The lawful owner of that plot is CaN Igawilo Ward for the public utility of building a clinic or any other lawful use by *115

. 15 the vendor. The Respondent shall remove the cattle pen from the plot. As for the three houses on the plot CCN did thing from everY / possible to prvent them being built there. At one stage even the I"unicipal Director found reason on the protests of the appellant and issued a stop order upon the. -'respondent from further developing that land as .per his letter of 6/3/96 with reference IC/U.2/11/189 and he was wärrid not to build any more which he didn't abide at his own risk. The Respondent is not entitled to be paid any compensation or his devloprnents upon the land of the appellant. He is free to negotiate with them if the appellant can take them for their value for public use of CCM or the clinic. If not negotiable he is free to remove them for his own use elsewhere. He is given 16 months to remove them as he deems. fit i.e. by plucking out the roofings and bricks etc. for another use elsewhere. Otherwise, the appellant will be tree to demolish them in order to have vacant possession of that plot. This appeal is allowed with costs both here and in the lower courts, t ' E. JUDGE 8/12/1999 8/12/99 Ywipopo l J. Appellant:— Yesaya Mwamburigu - Present in person. Respondent: Saidi. Kaswaga - Present in person For Respondent: Mr. ushokorwa. (Adv.) Absent with leave of the court,

• 16 - B/C. Mrs. Kasubiri. COURT: Judgement delivered in the presence of both p'ties Right of i4ppeai exp1ained r E. L. K& I' 1 IWIPOPO i JGE ATNBEY \8TH DEC BER, I 19t99 / I 2 LK/JJ