kilimanjaro paints ltd vs consolidated holding corporation 2014 tzhc 2062 10 july 2014

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM (DAR ES SALAAM DISTRICT REGISTRY) CIVIL CASE No. 109 OF 2012 KILIMANJARO PAINTS (T) LTD....................................PLAINTIFF Versus; CONSOLIDATED HOLDING CORPORATION............DEFENDANT RULING 10/04/2013 & 10/07/2014 Utamwa, J. This is a ruling on a preliminary objection (PO) raised by the defendant, Consolidated Holding Corporation against the suit filed by the plaintiff, Kilimanjaro Paints (T) Ltd. The PO is based on a single point of law that in view of the decision in this court in Civil Case No. 203 of 1990, this suit is res judicata and this court has no jurisdiction to entertain it. The same was argued by way of written submissions. Through his learned counsel, R. K. Rweyongeza and Co, the defendant supported the PO by arguing that, the doctrine of res judicata is found under s. 9 of the Civil Procedure Code, 1966, Cap. 33, R. E. 2002 which provides that, 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 of them claim litigating under the same title in a court competent to try such subsequent suit or the suit i/i which such issue has been subsequently raised and has been heard and finally decided by such court. He added that, the doctrine is based on two principles, that a man cannot be sued twice for the same cause and Page 1 of 6 that it is for the public good that litigations must have an end. He cited P. Ramanatha Aiyer’s “the Law Lexicon, the Encyclopedic Legal and Commercial Dictionary” Wadhwa Nagpur, 2002 at page 1667 and the case of G. R. Mandaria v. Rattan Singh [1965] E. A 118 to fortify his contention. " >?_ The learned counsel for the defendant also argued that, in Civil Case No. 203 of 1990 befoje this same court, the then National Bank of Commerce (NBC) sued the present plaintiff for recovery of the bank loan advanced to it. This court entered judgement for the NBC as the present plaintiff failed to file the written statement of defence (WSD) and unsuccessfully applied for extension of time to file the same. He quoted the relevant part of the court ruling dated 13/2/1992 (Bahati J) which stated thus; “...I agree with Mr. Kalolo that the Court should act under order 8 rule 14 and in the circumstances of this case, I enter judgement for the plaintiff as prayed with costs” The learned counsel further contended that, NBC ceased to exist by virtue of Act No. 23 of 1997 (Cap. 404 R. E. 2002) following the restructuring of Public Corporations exercise. The Public Sector Reform Commission (PSRC) took over the affairs of NBC, but latter the present defendant took over the affairs of PSRC. The present defendant is thus litigating under the title of NBC and PSRC. The counsel argued also that, the claim in both the former and the current suits revolve around the load advanced to the present plaintiff, hence the doctrine of res judicata applies in the matter at hand. The learned counsel for the plaintiff, Rwegoshora and Co. advocates, submitted in reply that, for res judicata to apply, the matter substantially in issue in the former suit must have been the same as the matter substantially in issue in the new suit. He argued further that this is not the case in the two suits under discussion. According to him, in th^ former case the claim was for recovery of the loan to the tune o f Tanzanian Shillings (Tshs.) 39. 9 Million while in the current case the plaintiff is challenging the amount of Tshs. 212, 120, 304. 35 as claimed Page 2 of 6 by the defendants in their demand notice together with the seizure of the plaintiffs mortgaged properties. The amount in the present suit is thus higher than the amount in the former suit and the mortgaged properties were not subject matter of the former suit. The cause of action between the former and present suits are thus different, hence res judicata will not apply in this matter, he cited George Shambwe v. Tanzania Italian Petroleum Co. Ltd [1995] TLR. 20 to cement his contention. The plaintiffs counsel also argued that, the defendant has failed to prove that the former case was finally and conclusively determined, which is another precondition for the application of the doctrine of res judicata. He added that, in the matter at hand the defendant produced a document titled “ruling” and not “judgement.” The term “ruling” refers to a decision of the court in interlocutory matters. The term “judgement” according to s. 3 of Cap. 33 means the statement given by a judge or a magistrate of the grounds for a decree or order. He thus submitted that, by the quotation of this court (supra) the court did not mean to decide the case finally, but it was only deciding on the application for extension of time to file WSD. The law would require the plaintiff in the former suit to prove the case exparte after the defendant had failed to file WSD, but it is not established that he made the exparte proof, the judgement was thus wrongly entered by the court as per the case of Kulwa Daudi 'v. Rebeca Stephen [1985] TLR. 116. The decision produced by the defendant cannot thus invoke the doctrine of re judicata. In his rejoinder submissions the counsel for the defendant reiterated his submissions in chief and added that, the distinction in the sum of money involved in the former suit and in the present suit does not differentiate the causes of action because, the increased amount in the present case is a result of the loan accumulation. He also argued that in the former case the court expressly entered judgement and thus finally determined the suit, that is why the plaintiff applied to the Court of Appeal to stay execution of the decree (Court of Appeal order dated 26/3/1992 attached to vindicate the contention) pending filing the appeal against the entered judgement. . ' Page 3 of 6 The main issue before me is whether or not the suit at hand is res judicata. In the first place I agree with the arguments by the parties that the following two conditions are among the preconditions that must be proved cumulatively before one invokes the doctrine of res judicata according to s. 9 of Cap. 33; 1. That the matter in the former suit must be directly and substantially in issue in the subsequent suit. 2. That the former suit was finally and conclusively determined by a court of competent jurisdiction. Another important precondition that must also be proved according to law before one invokes res judicata is that, the parties in the former suit must be the same in the subsequent suit, or they must be litigating under the same title. The position stated herein above has been religiously underscored by courts of this land in various decisions including the decision by a panel of three Judges of this court in Tanzania Telecomms Co. Ltd and another v. Boniface Mjenjwa and 13 others, High Court Misc. Civil Appeal No. 2 of 2010, at Dar es salaam (unreported). The contention between the parties in the matter at hand is footed on the above first mentioned two preconditions for invoking res judicata. While the defendant argues that the two preconditions were met, the plaintiff is of the view that they were not. The following two sub-issues thus arise*at this stage; i. Whether or not the matter in the former suit is directly and substantially in issue in the subsequent/present suit. ii. If the answer in the first sub-issue is in the affirmative, then whether or not the former suit was finally and conclusively determined by a court of competent jurisdiction. In considering the first sub-issue, I must first consider the claims in both suits. In the suit at hand, the plaintiffs claim against the defendant is for a declaration that the amount owed to the plaintiff (following the bank loan) is only Tshs. 39, 912, 996. 55 and not Tshs. 212, 120, 304 as shown into the demand notice issued by the defendant. The plaintiff also Page 4 of 6