Court name
High Court of Tanzania

Zaruki Mbokemize vs Swaibu Omari & Francis Adolph () [1988] TZHC 28 (01 September 1988);

Law report citations
1988 TLR 160 (TZHC)
Media neutral citation
[1988] TZHC 28
Coram
Moshi, J.

Moshi, J.:  The appellant, Zaruki A. Mbekomize, was the unsuccessful party in a claim against both respondents, Swaibu Omari and Francis Adolf, for a shamba worth shs. 20,000/= at Katoro Primary Court. His appeal to Bukoba District Court was dismissed, D and hence this second appeal.
In this appeal, as was before the District Court, Mr. Rweyemamu, learned advocate, represented both respondents, whereas the appellant argued the appeal in person.
It was established in evidence before the Primary Court that the father of the appellant E died in 1973 leaving behind, among other property, two shambas - one for the appellant and the other for the appellant's brother, Mahmud Ahmed. The appellant's aunt, Malifedha d/o Mbekomize, was staying with, and guarding, the appellant, who was then F aged about 10 years, at the shamba left for the appellant.
On 15.12.75 Mahmud sold a portion of his shamba to the first respondent for shs. 2,000/=, and the remaining portion to the second respondent for shs. 4,500/=. Upon becoming aware of the sale, the aunt of the appellant, Malifedha, filed redemption G proceedings in Katoro Primary Court Civil Case No. 12 of 1977 on behalf of the minor children of the deceased and the clan.
On 17.5.78 the Primary Court, in that case, found the shamba in dispute to belong to Mahmud, and allowed Malifedha to redeem it within three months of that date by paying H back to the respondents the purchase price and their costs. No appeal was preferred against that decision. Malifedha, however, failed to redeem the shamba, and it then became and remained the property of the respondents. On 24th March, 1986 the appellant instituted these proceedings before the same Primary Court claiming the same I shamba from the respondents. On the evidence before it, the Primary Court

unanimously found the case to be res judicata, and this finding was upheld by the A District Court on first appeal.
I would, on the evidence, respectfully agree with the concurrent finding by both courts below that the case filed by the appellant against the respondents was res judicata. The B matter had come before the same Primary Court in 1977, and disposed of, after being instituted by the guardian of the appellant, Malifedha, on his behalf. The issue of the ownership of the land in dispute had been finally decided upon in that earlier case. It was found to belong to Mahmud, who had sold it to respondents, and upon failure by C Malifedha to redeem it on behalf of the appellant, the shamba became the property of the respondents. The present case, in my view, cannot be said to have been based on different rights or different principles of law from those involved in the earlier case. And even if it is assumed, without deciding, that the suit was not res judicata, there was no D evidence, apart from the appellant's bare assertion, that the land in dispute belonged to the appellant. He could not have known the issues involved as he was then of tender age. There was no evidence before the trial court that the appellant had inherited the shamba in dispute or had otherwise acquired it. The evidence established that it E belonged to Mahmud who then sold it to the respondents. In his memorandum of appeal the appellant has more or less reiterated what he told both courts below, and which, in my considered opinion, was rightly rejected.
For the foregoing reasons, I find no merit in this second appeal which is, by reason F thereof, hereby dismissed with costs.
Appeal dismissed.

A