Peniel Lotta Vs Gabriel Tanaki

IN THE HIGH COURT OF TANZANIA
(LAND DIVISION)
AT DAR ES SALAAM
LAND APPEAL NO. 21 OF 2017
PETER PAUL SEMWIJAH.............................APPELLANT
VERSUS
INTERGRATED PROPERTY CONSULTANCY

COMPANY LIMITED............................... 1st RESPONDENT
GRACE KAMBARA................................. 2nd RESPONDENT
ZEBBIO AUGUSTINO............................ 3rd RESPONDENT
TEACHERS DEVELOPMENT CO. LTD....... 4th RESPONDENT
Date o f last order: 10/7/2018

Date o f Ruling: 26/7/2018
JUDGMENT
MGONYA, J.
The Appellant herein instituted Land Application No. 117

of 2016 at Morogoro District Land and Housing Tribunal whereby
the trial Chairman dismissed the entire Application with costs in
favour of all Respondents; for the reason that the Application is
Res Judicata and also that the same lacked pecuniary jurisdiction
before Honorable Tribunal.
Aggrieved by the said decision, the Appellant herein appealed to
this court on the following grounds;
1. Appeal to be allowed with costs;
2. This Honourable Court to order this matter to be
tried denovo; and
3. Any other order (s) which this Honourable Court
deem fit andjust to grant
During the hearing of this Appeal, the Appellant was

represented by Advocate Azizi Mahenge who was holding brief for
Advocate Chuwa who also had instructions to proceed with appeal
hearing; whereas Respondents were represented by Mr. Giray the
learned Counsel. The appeal was disposed urgued by way of oral
submissions.
Despite of appreciating the length and respected submissions

by the leaned Counsels to this Appeal, it is not my intension to
reproduce their submission, but instead, I will briefly state the
parties concern to the instant appeal.
As stated in the 1st ground of appeal in the Appellant's

Memorandum of Appeal, it is the Appellant's assertion that the trial
Chairman wrongly dismissed the Land Application No. 117 of
2016 for the reason of it being Res judicata. His reason being
that the matter was not heard and determined to its finality. It is
further alleged that, since that was the case, then the matter never
met the legal requirement to be termed as Res judicata as per
Section 9 of the Civil Procedure Code, Cap. 33 [R. E. 2002]
herein to be referred as CPC.
In the second ground, the Appellant's concern is on the

Chairman fault to rely on the Sale Agreement between the 3rd and
4th Respondents which was annexed to the Respondents' Written
Statement of Defense of which was not stamped, registered and
that the same is not the Government official Valuation Report as
required by law; to ascertain the pecuniary jurisdiction of the
subject matter in the Appellant's Application in Land Application
No. 117 of 2016.
From the above submission, the Appellant prayed the Court

to allow the Appeal and order the matter be tried Denovo and make
any other necessary orders as the court may deem fit and just to
grant.
On the contrary, Mr. Giray the learned Counsel for

Respondents was of the view that the matter in the Application was
indeed the Res judicata as it is the fact that all Respondents to
Land Application No. 117 of 2016 were also the Respondents
to the Land Application No. 199 of 2015 which was instituted
by the Appellant earlier in the same Tribunal; which was also
dismissed for lack of competent jurisdiction by the same
Chairperson who dismissed the Land Application No. 117 of
2016; for the above stated reasons.
On the second ground which was directed to the fact that the
trial Chairman was wrong on basing on the 3rd and 4th
Respondents' Sale Agreement, the learned Counsel for the
Respondents averred that the Hon. trial Chairman was correct in
determining the pecuniary jurisdiction by using the Sale Agreement
which was dully attached to the joint Respondents' Written
Submission of Defense since the value of Tshs. 203,000,000/=
was the correct value of the land in dispute as a Sale price
regardless the stated value was not determined by the Government
Valuer. It is from the said amount, the District Land and Housing
Tribunal lacks the pecuniary jurisdiction as well stated and ruled by
the trial Chairman in his decision in Land Application No. 117 of
2016.
The Respondents' Advocate thus supported the trial

Chairman's decision requesting this court to dismiss the instant
Appeal with costs.
4
Having carefully gone through the grounds of appeal as well
as the submission from both parties, I have observed that the main
issue to be determined is whether the District Land and Housing
Tribunal erred in law by dismissing Land Application No. 117 of
2016 for the reason of the same being Resjudicata and that the
Application lacked pecuniary jurisdiction to be entertained and
determined by the District Land and Housing Tribunal.
Before proceeding with determining the instant grounds of

Appeal, I am mindful and indeed let me acknowledge the fact that
initially there was an advanced Land Application No. 199 of
2015 instituted by the Appellant herein bearing the same parties
and the same subject matter as well notified by the Respondents'
Advocate in his submission. According to records, the said
Application in which the same was dismissed for want of pecuniary
jurisdiction before the Applicant instituted the second Application
thereafter; that is Land Application No. 117 of 2016; whose
decision is subject of this instant Appeal.
Now, upon perusal of the trial court records in Land

Application No. 117 of 2016 and that of Land Application No.
199 of 2015 before the District Land and Housing Tribunal of
Morogoro, to appreciate the argument for and against the whole
issue of Res- Judicata, I feel duty bound to reproduce the
provision of Section 9 of the Civil Procedure Code Cap. 33
which the principle o f"ResJudicataf' is encapsulate. It 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 a court
competent to try such subsequent suit or the suit in which
such issue has been subsequently raised and has been heard
and finally decided by such court". [Emphasis is mine]
I am alive that the object and public policy behind the doctrine
of Res- judicata is to ensure finality in litigation. My reference is
made to the decision of the Court of Appeal of Tanzania in the case
of UMOJA GARAGE VS. NATIONAL BANK OF COMMERCE
HOLDING CORPORATION, Civil Appeal No. 3 of 2001
(Unreported). Of course, it is also meant to protect an individual
from a multiplicity of Litigation.
In celebrating the essential ingredients of the doctrine of Res-

judicata, I find it necessary to revisit albeit the requirements or
sine quo non conditions for Res Judicata to operate couched by
the Court of Appeal of Tanzania in the case of PENIEL LOTTA VS
GABRIEL TANAKI AND OTHERS (2003) 2 EA where the
following matters must exist:-
1st, the matter directly and substantially in issue in the

subsequently suit must have been directly and substantially
is issue in the former suit;
2nd,the formersuit must have been between the same parties

or privies claiming under them;
3rd the parties must have litigated under the same title in the
former suit;
4th, the court which decided the former suit must have been
competent to try that suit; and finally or
5th, the matter in issue must have been heard and

finally decided in the former suit
The above conditions have been also reflected and stated by

number of prominent Authors, to mention but the few:
1. Mulla on the "Code of Court Procedure", Vol. I, pp

101, 123-24, 136,155,166;
2. P. K. Majumdar "Commentary on the Law of the

Code of Civil Procedure 1908", 5th Ed., pp 146,
169;
3. A. N. Saha's. "The Code of Civil Procedure" Vol. I,
5th Ed., p 143;
4. "Ganguly's Civil Court Practice and Procedure",

13th Ed. pp 165-169, 171; and
5. Sheodan Singh vs. Daayaa Kunwar [1966] 4 SCR

(300).
Now the capital issue for determination in this ground is

whether or not the Land Application No. 117 of 2016 brought
by Appellant was/is Res- judicata.
In this context, the first condition that I take up for

consideration is the identity of the parties. Since one of the element
for Res-judicata speaks loud that the former suit must have
between the same parties or privies claiming under them. Looking
on the present case and the former suit, I have found that the first
test has been met since the parties are the same.
Next element that arises to be tested on the operation of Res-

judicata is that the parties must have litigated under the same
title the dormer suit. Looking on the contest of the Land
Application No. 199 of 2015 and the contents of Land
Application No. 117 of 2016 both before the Morogoro District
Land and Housing Tribunal, I am satisfied that the parties in the
8
present suit are litigated under the same title in the former
Application. That this second test has also been met.
Another prerequisite condition is that the matter directly and

substantially in issue in the subsequently suit must have been
directly and substantially is issue in the former suit.
Looking in the records of Land Application No. 117 of

2016 and that of Land Application No. 199 of 2015, indeed
the cause of action in respect of both Applications is the same
which is for the Respondents' trespass to the landed property
alleged to be the Appellant's land. So the present condition too is
qualified.
Finally is the test that the matter in issue must have been
heard and finally decided in the former suit According to the
records, I join hand with the Appellant's counsel that the Land
Application No. 199 of 2015 was not heard and determined to
its finality. This is a very well-known fact to both parties and to the
Tribunal which dismissed the Land Application No. 117 of 2016
under the auspices of points of preliminary objection.
It is not enough to show that the subject matter and issues

in the suit are the same as in the previous suit, and that a court
competent jurisdiction pronounced a decision. It must further be
shown that the decision finally decided the matters in dispute. As
was stated by Lord Porter in the Indian case of BHAGWASTI V
RAM KALI (AIR) 1939 PC 133;
"In order to successfully establish a plea of res

judicata or estoppel by record it is necessary to show
that in a previous case a court having jurisdiction to
try the question came to a decision necessarily and
substantially involving the determination of the
matter in the later case."
The decision, therefore, must be on the merits, and it must

be clear that the parties were heard or were given an opportunity
to be heard before the decision on the merits was pronounced. If,
therefore, a suit is dismissed on a preliminary point, which does
not finally decide the rights and liabilities of the parties, then the
Plaintiff cannot be said to have been heard on the merits, and so a
subsequent suit is not res judicata.
As these tests have to tread concurrently, the failure of one

test, disqualifies the Application to be termed Res-Judicata. From
the same, then it is my firm view that the learned Chairperson
misconceived the concept of the Res Judicata which led him to
the wrong decision. In the event, the first ground of Appeal has
merit and succeeds accordingly.
10
On the second ground, that the Chairman fault to rely on the
Sale Agreement between the 3rd and 4th Respondents which was
annexed to the Respondents' Written Statement of Defense of
which was not stamped, registered and that the same is not the
Government official Valuation Report as required by law to
ascertain the pecuniary jurisdiction of the subject matter in the
Appellant's Application in Land Application No. 117 of 2016; I
have the following observations.
First, in determining this ground, I see it wise to reproduce

Regulation 3(1) and (2) (d) of the Land Disputes Courts
(The District Land and Housing Tribunal) Regulations,
2003 which provides:
"3 (1) Any proceeding to the Tribunal shall commence by an

application filled by an Applicant or his representative
or payment o f the appropriate fees prescribed in the First
Schedule o f these Regulations.
(2) An Application to the Tribunal shall be made in the form

prescribed in the Second Schedule to these Regulations and
shall contain:
(d) Estimated value o f the subject matter of the

dispute.
ii
The purpose of the above provision is for the Tribunal to
ascertain if it has a pecuniary jurisdiction over the matter before it.
That being the case, then the duty of stating the estimated value
of the subject matter of the dispute is that of the Applicant
and not Respondent. In the case where the Respondent differs the
value of the disputed property as in the instant Appeal, the burden
of proof shifts to the Respondent by him/her attaching the Credible
Valuation Report dully accredited and approved by the Chief
Government Valuer to his/her respected Written Statement of
Defense; to be followed later in the Final Pre Trial Conference
stage by framing the issue of whether the Tribunal has a pecuniary
jurisdiction to entertain the suit within other framed issues; to be
followed by proof of variance of the value during hearing where
the said Valuation Report can also be tendered as evidence in
support of the variance to prove the fact of jurisdiction. That is the
procedure. Short of that, no any kind of evidence whatsoever can
be taken by the Court/Tribunal to state or rather determine the
true value of the property in dispute apart from the value stated
by the Applicant in his Application as I have stated earlier. This is
to prove the fact that Parties are bound by their own pleadings.
Having stated the above situation, I further state that the

issues of the jurisdiction at the stage of instituting the matter
before the Court or Tribunal does not need at all the scrutiny of
12
evidence especially on circumstances where there is a point of
Preliminary objection. For the Trial Chairman going to the extent
of scrutinizing the annexures to the Respondents' Written
Statement of Defense to prove the value of the disputed land/
property, the said act was a serious misconception since the one
who needed to state the value of the suit was the Applicant as well
provided under Regulation 3 (2) (d) of the Land Disputes
Courts (The District Land and Housing Tribunal)
Regulations, 2003.
From the above explanation, it is my firm view that the trial

Chairman in deciding the preliminary objections raised in Land
Application No. 117 of 2016, had totally misconceived the rules
of scrutinizing the evidence searching for the value of the suit by
using the annexed Sale Agreement which goes contrary to the rules
of Preliminary Objection as observed in the Case of MUKISA
BISCUIT MANUFACTURING CO LTD VS. WEST END
DISTRIBUTORS LTD (1969)1 EA 696; where it was held that:
"So far as I am aware, a preliminary objection consists o f a

point o f law which has been pleaded or which arises by dear
,
implication out o f the pleadings, and which if argued as a
preliminary objection may dispose o f the suit. Examples are
an objection to the jurisdiction o f the court, or a plea o f
13
limitationf or a submission that the parties are bound by the
contract giving to the suit to refer the dispute to arbitration"
Further, in the case of LEGAL AND HUMAN RIGHTS CENTRE

AND ANOTHER VS. HON MIZENGO PINDA AND ANOTHER,
Misc. Cause No. 24 of 2013 High Court o f Tanzania
(Unreported) Hon. Tundu JK, stated thus:
'T/re position o f taw is that the purpose of Preliminary

Objection is to enable the Court to decide on the point
of law based on ascertained facts that give rise to a
pure pointy of law, which can be disposed of without
the need for any further evidence."
Finally, as the trial Chairman erred by using the value which

was not pleaded by the Applicant. It is from this explanation, the
second ground of Appeal too has merit.
Due to the above observation and explanation, I proceed to

invoke my revisionary powers and step into the shoes of the Trial
Tribunal and proceed to make the following orders:
First, I proceed to set aside the entire proceedings and Ruling

of Land Application No. 117 of 2016;
14
Second, order that the Application (Land Application No.
117 of 2016) be returned to the Morogoro District Land and
Housing Tribunal as it is the competent Tribunal to try the matter
for determination of the same on merits before the different
Chairman.
In the end result, the Appeal is hereby allowed with

orders above.
Each party to bear its own costs.
It is so ordered.
Right of Appeal Explained.
L. E. MGONYA
JUDGE
26/7/2018
COURT: Judgment delivered in the presence of Appellant in

person and in absence of the Respondents/Respondent's
Counsel; and Ms. Emmy B/C in my chamber today 26th
day of July, 2018.
L. E. MGONYA
JUDGE
26/7/2018
15

Peniel Lotta Vs Gabriel Tanaki

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IN THE HIGH COURT OF TANZANIA

LAND APPEAL NO. 21 OF 2017

PETER PAUL SEMWIJAH.............................APPELLANT

INTERGRATED PROPERTY CONSULTANCY

Date o f last order: 10/7/2018

The Appellant herein instituted Land Application No. 117

During the hearing of this Appeal, the Appellant was

Despite of appreciating the length and respected submissions

As stated in the 1st ground of appeal in the Appellant's

In the second ground, the Appellant's concern is on the

From the above submission, the Appellant prayed the Court

On the contrary, Mr. Giray the learned Counsel for

The Respondents' Advocate thus supported the trial

Before proceeding with determining the instant grounds of

Now, upon perusal of the trial court records in Land

In celebrating the essential ingredients of the doctrine of Res-

1st, the matter directly and substantially in issue in the

2nd,the formersuit must have been between the same parties

5th, the matter in issue must have been heard and

The above conditions have been also reflected and stated by

1. Mulla on the "Code of Court Procedure", Vol. I, pp

2. P. K. Majumdar "Commentary on the Law of the

4. "Ganguly's Civil Court Practice and Procedure",

5. Sheodan Singh vs. Daayaa Kunwar [1966] 4 SCR

Now the capital issue for determination in this ground is

In this context, the first condition that I take up for

Next element that arises to be tested on the operation of Res-

Another prerequisite condition is that the matter directly and

Looking in the records of Land Application No. 117 of

It is not enough to show that the subject matter and issues

"In order to successfully establish a plea of res

The decision, therefore, must be on the merits, and it must

As these tests have to tread concurrently, the failure of one

First, in determining this ground, I see it wise to reproduce

"3 (1) Any proceeding to the Tribunal shall commence by an

(2) An Application to the Tribunal shall be made in the form

(d) Estimated value o f the subject matter of the

Having stated the above situation, I further state that the

From the above explanation, it is my firm view that the trial

"So far as I am aware, a preliminary objection consists o f a

Further, in the case of LEGAL AND HUMAN RIGHTS CENTRE

'T/re position o f taw is that the purpose of Preliminary

Finally, as the trial Chairman erred by using the value which

Due to the above observation and explanation, I proceed to

First, I proceed to set aside the entire proceedings and Ruling

In the end result, the Appeal is hereby allowed with

Each party to bear its own costs.

Right of Appeal Explained.

COURT: Judgment delivered in the presence of Appellant in

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