19850704 TZHC Dar es Salaam

f-JB .,filr£-Lt,, -- -./' AJJ.Lk ~ ~ - 4 C ,-- 'TTT If t;. I)/--. IN TH[:; HIGH COURT OF TANZJ1NIA 01t-l2.-t,~- S:-1\L-Alt,- ~ . ~AH ES S.AIJW.1 \~~OEJ.J.i.AJ.IJEOUS CIVIL A.1'PEAL NO, 4. OF 1985 IU1\_ J!iATliU10NUL CAUSE lTO. 53 OF l984 ABDALLAH S.AID, • • •• , • • • , ••• , •• • ••• AP.PELLANT versuci 1.M0HA1,W;D Mil!ilTAI •••••i••••••••••RESPONDENTS . --------:- ·. ' 2 • OMAR! ImEN.'1 . . JUDG:l:MENT 1he appellant, Abdallah Saidi, 'fil&4 a petition in the Court of the Resident ibgiatrat• nt Kisutu praying that. the· re·spondents, ...;:_ . ""~ '' Mohamed Mbena und Omari Ubeno. should reoognistJ him as the husband ot their daughter anc'l thnt they should r~lease the daughter a.no and her ohild to jo1n th$ petitioner. 11.~~t of all I®\ veey doubtt'ul that the appellant/petitioner oould GUI! the. responaentB in n mntrimonial ceuae a.a be did. l3e as it nm.y the ~st:rate who heard the pati tion di.Slll1ssed it on the ground that it was res :ud:toata. ihe appellant Ms filed an a~}eal - this oourt ,.againet the deci~1on :the mgistrat.. In bis memorandum of appeal the e.ppellent is not ohallo:no<1.ng the maglatrate' s de d.sion ar- suah but 1a basicilly i~opeat;i.ng hi$ originul 01:etinl. He is :in essence: aekil'l8 this oourt to cotWider tha men ts of the aam. 1be appellant ho.d ea:rUer· on. :mad tha nspondonte in Oivil C2sc :Wo. l45 ot l9SJ 1n the J?r:trna.ey Court of T~meke at

1emeke. He was d1esatistied with the d~oin~on of t h e ~ Court and appealed to ,he, :ntetrtet Cmu-t of Temelre at J<i.~ont Front in Oivil Appeal No.2 of 1984. Tlle ap~ell~nt'o ol~i.m to~ the ~eturn of hie 1wite' !ailed and the ~le.im for tJle ret\.\ncl ot. She. 2,500/• woh he· bo.d poicl to the n,:sp011dtmt' s brothc,r we,e rejeotod. ru..~t _t'l'om ~ Matr,i.mom.ru R,,oe~0ill1a.tton Boarc'.t ond thr®~out 'U\l to thll D1otrtet Court it v,as :timly eotabUahed tMt the a~pelle.nt and the et1.id daughter known by the namf) of A.shura Jl:int1 \10.zi:r.1 we:ri, not hu13band and wife• They wer<; living eB aonaumbitlEta. 1lb.e o:::ipella.nt oon:tim.ed j. t tn his pet.:i. tion, j_n lhtrtlnonis:L. oau.ee Uo.53 of 1984 whe:noi, thia appeal io ortgimting. h appallatlt huo not been coWJistc:nt in M6 QJ.aim. et bein.g a husband. ~ l•~d magio~~, wl:lo heard Civil .Appafll. No.2/e4 l,l,)Ao remarked ;bat the OiP8lli..Ult a._ the h,<:,nri.P,g of the appeal r;lzj.;ai.ed thut ,. ·wns •••••••• /2 ! r ·I - 2 - married to the daughter of the respondentis brother but changed his version and said the respondent's brother 1 s daughter was his: ,, fiancee. The District Court the :rnfore found that the Primary Court· rightly rejected the appellant's claim. The appellant was not satisfied with the judgement of the district Court. He did however, not appeal in- stead he chose to file a fresh petition in the

court of the Resident magistrate, in Matrimonial cause Jfo.53 of 1984. The appellant wqs duly advised that the matter is res judicata. But he insisted to pursue the matter and sugcested thnt a different magistrate from'the should one who sounded the advice L. hear the matter. The request was granted. Another magistrate took up the case and dismissed it on grounds that it was res judicata. Hence this appeal. This appeal is bound to fail. The issue of the return of the daughter and refund of the money was directly and substantially in issue in Primary Court Civil Case No. 145/84. The parties were the same and they were li tignting under the same title. The issues were raised, .... heard and finally decided by~ competent court. If the appellant was ~\, ~ :> /,- ·' not satisfied with the decision of the District Court in its appellate~-;,_, jurisdiction he could have decided to appenl a.go.inst the judgeme~1t to " the High Court. He could not, ns he did, at will file afresh suit before another court, this time before a court of resident lllD,gistrate. The matter, as properly found by the learne~ resident magistrote, is res judicata and especially so in this case where tbere·hae been no change in circumst2,,nces ns it w::i.s held in Tow Amir Snlimin v. Firoz Saleh Mohamed 1978 L.R.T._~L-1:h '.ibe appeal thus fo.ils and ! ncicordingly dismiss it with costs. \{j_'l'ltl~ Hro J • MKAT'l:E AG. JUDGE 21/6/1985 Read on 4th July, 1985. Coro.m: Mkatte, .Ag. J • For Appellant: Present in person For Respondent: Both present in person. 1(,l(f~/ 1 ,_{((1 ;~. ::,// .. H. J. MK.ATTE AG. JUDGE DAR ES SALAAM. ,'!.th July, 1985 •.