19900208 TZHC Dar es Salaam

IN THE HIGH COURT f•F TANZANIA AT DAR ES SALA.A.iv! CIVIL CASE N0.120 OF 1988 FRANK L. 111AREALLB ••• , , • , •• , • , • • • • • • PLAII-JTIFF VERSB~ lVi./S ]),,T, DOBIE AN;-: COM.?AHY(T) LT]) ~ O • • ♦ ♦ ♦ ♦ ♦ ♦ ♦ , ') o, ♦ ♦ • ♦ ♦ • ·. ♦'· ♦ O ♦ • fl ♦ • • ♦ 0 0 J;Eh,Eln_:,A 1.L~\iT .J.. 'I RUL I KG .2.AiiATI, ~r. Kesaria, learn~d counsel for the &efendant, has rais6d a preliminary objection t~ the effect that the subiect matter in thi~ case is res j~dicata because it has already been dealt with in ci-,-il case no.99 of 1988 file ii in the District Court ·of Dar es Balaam by D.T. Lobie. He subrnittei that by ..,-irt\l.e Qf section9 of the ~ivil Procedure Code this auit in the High Court sho~ld be dismissed, hlr, KeJaria also cited Order 7 rule 11 concerning rejecti~n of a plaint where & suit appears to be barrei by any law. In reply, Mr, BwahnILn, learne:1 C()nnsel for the plaL1tiff :rn.ic).. that he filet the g~it in the High c~urt before knowing that thero was a similar case filed in the District Court; an11 that anything fil~:i in ~,h,· High Court s'ti.persedes any suit in the lower c,~r..rts. H6 ~:>rayod for ~)he proceeding~ in the Diitrict cnurt to be ~taJed penting thA finali~atio~ of this case. He c6nclnded that the order in the ~isiriot S~art wa~ for the case in the .District c,,·ct.rt t.2 start de nt">vo. In roply to t•hat, I,a-. Kesaria submitted that sections 8 anti. 9 dFL not talk of s-r:pAri~'rit;r of courts, but that these sections lay down the prinoiplo ofL:nit having been decided in a court 0r pending in a ccart. The ci,il case no.99 of 1988 filea in the District Conrt ~f Dar es Salaam shows that it was finalized on 16/11/1989 with an order ,.,. that the application for stay cf execution be {ismissed, Wha~ that• means is that the ex parte judgement passed against the plaintiff who was the defendant in that case stand8,. In Civil case no.99 nf 1988 D.T. Dobie and Co. Ltd. was suing F.L. hlarealle claimin~ shs.19,390/ft .", ,.. being balance of account for charges of work done and matari~ls pr~Ti1Q1 or supplien in repairing defendant 1 s motor vehicle and shs,103,400/~ being storage charges in keeping and taking ~are of the defendant's vehicle from Augustr to May, 1988. There was no written state □ ent of defence filed an{ the case pr~ceeded ex parte: In the present case namely High Co~rt Civil Case No.120 of 1988, Frank Mareaile is the plaintiff anZ D.T. nobie and co~ Ltd, is the defendant. The claim is for specific performance of the a 6 reeuen/ I repairs and refund of nhs.3,325,600/= being loot re·rnnue for arisin~ out nf loss of use of the car .,,f the plaintiff nel'<eSS' 1/ / r .p ·'·• suit· ie ~l~o directly and r~tK~aLti4lly in issue in the District C0~rt c~sG (se~tion 8 of the CPCJ ~r ~h~~her the suit here has bn ias~e iri ~hi h the ua~tar directlyjand substantially in 1s3ua has been :ire tly an{ stibstantially in issue in District C:urt 0 1• i.]. 0 ase N~ .99 of i988 (s,9 01 CPC). From the submi2sicns ~£ both counsels they appea~ "·o be in .::J agr~ement that the m~tt1r in issue in this case was also in iss~e in :;he ~istrict Co~rt Case 7 nam~ly the contract for repair of J.he ~ehi·Jle of Fra~k ~arealle. What the ~lai~tiff here (~arealle) has pu~ fown in his plaint is what he cculd have p.-~t down in the :·ist:ri·-,·c :'-o:,_r.~; 0ase by way 0f a co-.·,..nterclai::n~ But the aIDo'J.nt- in -';he r•':~r.-!:;:~cl_aj_w ···-::'.lJ·' 1,.,.,-•.,-, ~----- 1 c-1_ the jP.Tisdictirn of the ])j_strict C·:u:rL Fr·-:r that reas•,n, the d.efeJ1:lanL in the Tistrict Court case c.o:JJ. n. t have had a cr.unterclaim in his written statement of defenceo That being the case 1 it was. in crder for the plaintiff in this casa no 120 of 1988 t0 file the present sui~. The question of res jndicata ~oes r-·t therefore arise h~rea I dismiss hlr. Kesaria 1 s preliminary objecti~n an~ order the suit '·o procee4 to hearinge } elivered to ivlr, 11/Ia.:r.andr: for Y.:asG.riao 1 lvlr, Bwahama absantc A,. BAilATl JUDGE ____ ........ .,, ~ Mr. ~arartd~i~ Mr. Kesaria has iLtructe~ me that h2 in~ends to appeal against this court's T~ling. CoJ.rt ~ - Intention to appeal n•> c8rl. DAR ES SALA.1l111 8TH FEBRUARY~ 19-~Q CJ,RTIFIGATE ~ ~rae copy of the original. ' . < ~ , . .£.:,.~~ . SEHIOR 1.,..bEPUTY REGIS'l4lAR ·-·•-...-.-------·-· ..-·----·---