Aron Mwambope vs Burton Kasyupa ((PC) Civil Appeal No. 1 of 1996) [1999] TZHC 452 (16 September 1999)

,,,•f·-- l ..--- "-, ej--;/lA- . ,,:, IN THE HIGH COURr OF TANZANIA\ . ' .: . AT,}1BEYA (J>C°) CIVIL Jμ>PEAL Ndo ,1 · OF 1996 (From the ·dE=icisicin of the District Cour_t of. Kyela .at Kyela 1.n Civil ApFe:f No.4'0 of 1995 Before: C •. B. · Mbezi· ... Senior Dj.stricf Magistrate) '. ~--: . · r.i·, .-/' ARONMWAMBOPE ·· APPELLANT Versus, / BURI'ON J:{ASYUPA 1 ' • • • ·········-······· RESPONDEN.'.l·• •. JUDGMENT- ,: .- • I t,. : !' •.. : • ) • • •.• , • .• : ,\ ... - •.• , ,,,·:-,'.-1-·'i'his was a suit for recovery of clru1 land . The appeloot,. ·A'-t-on Mwambope, . ' . . .• . .• . ,.\ ... _4-. :- ,. ,.. ... . . clj,.med the· land from the respondent, lffton:Kasyupa, befpr_Ikolo primary -" .. - . and_tvon:~ The decision aggrieved the respondent who preferred,.an appeal to the . : . .. ·. ~ : .. ! . t" q.isict court of Ky;i.a. The\iitrict court."allowed the appeal, and the decision tgrievedthe appellant, hence this appeal preferred and argued before me by his ': !. . . -,.· .. learned advocate, Mr. Ni.,. d res':i.sted by._the ,respondent hmse;Lf.• ·· •. ': .. : - .., .. ,,The parties are blood relatives of same clan'- The ce. tor:,the appellant was that 'he· .inherited the land from his decased· father. He. did not 'say when. . . His elder brother, Fulano Mwambope (PW2), and John Mwambope (PW3) supported the appell;ant. The hairman of the district land tribunal, Severini Mwakyondesi (PW4) ' .-: said the land belonged to the clan of the appellant., Iri ·any event, therefore, the land was clan land •. ', . ., · ~ ~ .. , .. ,, ... Tn~ appellant· fell sick and }:'nt to Dae;-Salaam for treatment at Muhirnbil~·:• .. . . . Medical Celltre. He did not, again, recall .hZlto·\· · What he remmbered Was that he-- - ·{· . ·. •· ;· '·· ,,e:· -. ,. '··'' c·!: ·' .· . .,.,·. - . return.ed to Kyela in December 1994·· after staying ilr' baes-Sal,i:i-am for three years •. r ... . ·.,:" He had. left· the s·hamba under:the car of his ~lder'·brother Fulano (PW2) 0 According to PW2 he allowed the resJ?ondent to cultivate the shamba for an agreed period of two years at a consideration of Shs.6,500/= while the appellant was away. He /. received the money and after the expiry of the two years he asked the respondent ••••ooo••••• /2

( to stop cultivation and leave the shamba_. The ..respondent resisted claiming that he had bought the shamba from PW2. When the appellant returned in 1994 he found the respondent in occupation of the sha.mba cultivating it. PW2 explained what had transpired to him. But as I shall .demonstrate it· to.ok the appellant and PW2 many years before taking any st~ _.oa- t1w- -claim o:f the respondent. In 1991 Fulano (PW4) filed a suit against the resdnt before Ikolo primary . :· ' . . . ~ . . . . .court claiming the land. It was Ikolo primary ourt Civil .Case No. 171 of 1991 • . . •, It was common grouoo hat the J..an.d voo i:o that case was the same land invob.e.d in this case. PW2 lost the suit. The primary court unallimously. found for the respondent ll.olding that the land \J his 'pi,_o_perty he had lawfully purchased from PW2 -· PW2 _preferred Kyela <;listrict court _Civil Appeal No. 8/92 against that . . . ·' . decision. _The district court in its appellate judgment (Ext B) d.elive_red on 16.6.92 uphef·the -d&cisl.l)lt C>t he prima.Ij' eourt and dismiSQ.Qd the appeal. No further ppeal was preferred. On 26.195, which was almost three years later, the appellant ·preferred this suit. In this cas'e the respc;mdent •_s version of the l'llatter was this •.. The sh,amba · had two parts. This fact was uncontroverted. In 1984 PW2 sold one part to him . 1 .' • for shs.3,000/=• In 1987 PW'2 sol.d the other part to him for shs.3,500/=• It made a total of shs.6,500/= for both parts. Their cell leader, Lai.ton (DW2), and the. respondent •s wife, Rebeka (DW3), were present at both transactions as well as th appellant (PW1). The primary court found PW2 greedy for money and the .source of .the prob~~m. The coμrt was satisfied that there was a sale of the land between PW2 and the respondent but held the sale invalid in that it was neither witnessed nor consented to by· elf members. The district court, however, found the sale to have been valid . ". '·. and expreissed the view that there was as between the appel~ant and PW2 conspiracy or a fraudulent trick to swindle the respondent of the land he had lawfully purchased. oo•••o•eeoo,e /3

./ I wuld dismiss this appeal es,3eiltially on- two grounds. .Firstly, Mr. Naali . I submitted that the sale of the land in· ispute, which as clan land• was invalid on account of that it lacked consent' of 'cf'\rimb.ers. The' trial' court was of the same view It however occurs to me tr.t clan memers acquiesced to the sale and this provided their p;r:erequisite consl",'t. This would acqount for the fact that the respondent ocupied.and used the 1. nd for several years without any qualms . ' from any clan member. Beides, some 4 •n members were present. The respondent . - -, -Fulano (PW2) .b-~lgd .. to' ~~e lan. ':oesp:i..t'e• the sale,'.therefore{the land ; t. :-"•,, '., . was still within the clan. It,ppears that the· appellant' as well wa.c:i present at • • •• : -. • : 1,' - ... • •• ;/' • ·: _·;·: • - .• - • • :; the sale as claimed by the respondent. If he allegedly· returned· from Dat'-es-Salaam- , ~ 1?9. and the sal was in 1994 and 1997 h_e was presnt:· This wo\il.'d account for .. the fact that neither PW2 nor hims,elf took any' teps, against the respondent for ...:. < :· ,_ several years. In the circtances i. agree with. the rpondent that the •appellant 1 s purported safari to, and stay in, Dar--Salaam' was· a concoction· ; He toui.d not , ' :'. ' ... . _J?i'Oduce any medical chit for the· .alleged' tee. yes treatm.ent .at tt hugE!•,and fous medical institution .. · I agr~'e ith the,; district court tha:t · th :ppellant and PW2 had swindle wi-itten on their· faces They were cine ahd.JSain~ in act:i.on and pucyose. They had both sold the iand to the respondent d were. emp:ioyg a

• ' '• :r;audulerit trick to get.it back~ condly, this suit was res judicata. The appellant ·was bound by 'the decision of the ditrict court ofKyela (Ext B) 'in its Civil Appeal No., 8/92, .-:-·- from which no further·appeal w~ pefe;;a_, t:\lat the lana' in dispute is the property of the respondento Mr. Naali submitted that the appellant was not a party in those prob'eedings but 'it "mattered for. nothing in :the circumstances of th two cases. The essential conditions for the application of the docr:i_.ne of res judicata are: (i) the matter directly and substantially in issue in the subsequent suit or issue must be the same matter which ·was directly and substantially in issue either actually or constructively in the former suit; ~ I ,:~, , (ii) the former suit must have been a suit between the same ... parties" or between. parties under whom they or any of them claim; ... ~hi_:_;·.:{; . ::· ... ~- ...... , 0. /4

• 4 - (iii) t-he parties must have litigated under the same title. in the former suit; (iv) the Court which decided the former suit must hayr b·,m ten.t to trY t.hA 'l.lb.<::Qq_u<>nt .--:u.:i. -:.- '· suit in which such issue · is subsequently raised; ai. ~ ·c V ) tJa_.rriatter directly and substantially. in issue in the · subsequent suit must have been heard and f,inallj . . decided by the Court in the first suit., 111111111111111 - I , In. this _suit, I am sa.tisfied that .l the five conditions were satisfied • .. r The supject matter ill both suits w_a.s the same.• In the circumstances of the two cases.J;he partie w,ere .also the same on account of that the appellant and PW2 were inseparable and that PW2 i_n the first suit had instituted it on behalf of or for the (, ~ appellant. T°i1e court in both cases was of competent jurisdiction;. and a decision, which hl:18 not been ;eversed or altered., had been arrived at iI?,. the first case., . .. . ' . ' I would acid that the witnesses were the same ~ both ces. .The ... doctrine of res judicata. fu; based on two princiles~ Firstly, there should be an end to litigation and,· secon·dly ,. no man should .be v~:iced twice over the same cause., . This subsequent suit, thereforet, was res judicata~ In the event, I find this appeal devoid of merit and hereby dfumiss it. I declare that the respondent is the rightful ower of the: shaniba in ·dis'pte and ,,.-, :·, grant the .costs to him. AT MBEYA. 29 October 1999. For Appellant: Mr. Naali, advocate. For Respondent: Absent. ,. ·-;,_.., . BoPo MOSHI JUDG.

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..I, 5 ii,,. CQURX: I give them last chance to appear for Judgement on 16/7 /99. If they don't absence~ Date: 16/7 /99 Service to issue to them both afresh. up turnLJudgement will be delivered in their ._ MWIPOPO JUDGE 9/7/99 ' Coram: Hon~ EL.K rriwipopo, J. Appellant: Absent Respondent: Absent B/C. Kosam. COURT.: I cant adjourn this Judgement any longer. I deliver it in their absence. District Registrar to inform them accordingly 41 AT MBEYA 16TH SEPTEMBER, 1999 ELKM/JJM .L.K. MWIPOPO JUDGE