20140710 TZHC Dar es Salaam

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, Consolidaled 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 urider 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 in 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 [19651 E. A 118 to fortify his contention. · The learned counsel for the defendant also argued that, in· Civil Case No. 203 of 1990 before this same court, the then National Ban..1<. 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 co'sts" 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 farmer 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. ,t, 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 farmer 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 the farmer case the claim was for recovery of the loan to the tune of Tanzanian Shillings (Tshs.) 39. 9 Million while in the current case the plaintiff is challenging the amount ofTshs. 212,120,304.35 as claimed Page 2 of 6 . .... - .. , ...· '. ..Wt,t"_. 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 farmer suit and the mortgaged properties were not subject matter of the former suit. The cause of action between the farmer and present suits are thus different, hence res Judie ata 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 pre~ondition 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 farmer 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 .do~trine of res judicata · according to s. 9 of Cap. 33; 1. That the matter in th;e farmer 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 preconclition that must also be proved according to law before one invokes res judicata is that, the parties in the farmer 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 anothe·r 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; 1. 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 Tsh's. 39, 912, 996. 55 and not Tshs. 212, _120, 304 as shown into the demand notice issued by the defenqant. The plaintiff also Page 4 of 6 ,- seeks for a declaration that the intended seizure by the defendant of the plaintiffs mortgaged properties is unlawful. It also claims Tshs. 75, 000, 000/= as specific damages for mental anguish suffered by the plaintiff following the defendant's acts of harassing it and costs. On the other hand, according to the defendant, the claim in the former suit was for recovery of the loan that had been extended to the current plaintiff by NBC. The defendant unfortunately, did not mention at what tune was the claim for the loan in the former suit. The copy of the ruling it produced and which contained the above quoted order entering the judgement did not also state what were the claims by the plaintiff in that former suit. The defendant did_ not produce the plaint related to the former suit so that this court could have an opportunity of comparing the claims in that former suit and those in the present suit. In my view, a _party who alleges that a suit is res judicata has a duty_ to prove the allegation, which said proof, · includes production of necessary documents. Our civil justice system is footed on the adversarial system which puts the onus of proof to the person who alleges a fact. I thus find that the defendant did not discharge its duty in this matter. On the other hand, the plaintiff in the matter at hand argues that the claim in that former suit was for the recovery of.the loan only at the tune of Tshs. 39. 9 Million, and basically the plaintiff expressly admits this claim in his plaint. For the above reasons, it cannot be said that the claims in the present suit (apart from the admitted sum of money) had been heard and finally decided in the former suit as per the requireme~t of s. 9 of Cap. 33. It cannot also be said that such claims in the present suit had been alleged by one party and either denied or admitted, expressly or impliedly, by the other party in the former suit as required under the Explanation III of s. 9 of Cap. 33. The 'argument by the defendant's learned counsel that the claims in the present suit revolves around the recovery of the loan which was decided in the former suit will not thus suffice to invoke the doctrine of res judicata. Again, his argument that the loan has accumulated to a larger amount than the amount which was at issu·e in the former suit, is indicative of the fact that there are fresh claims in the present suit, which will need proof in court. Page 5 of 6 For the aforesaid grounds, I answer the first sub-issue negatively to the effect that the matter in the farmer ·suit is not directly and substantially in issue in the subsequent/present suit save for the slin1 adwitt.ed by the plaintiff. As the preconditions for invoking res judicata must be proved cumulatively and not alternatively, and sine~ I have determined the first sub-issue negatively I consider myself not legally _ obliged to consider the second issue as that will be a superfluous exercise. The main issue is therefore, also answered negatively to the .. effect ~hat this suit is not res judicata. l therefore, accordingly overrule the PO. It is accordingly ordered. 1'·. JHK.UTAMWA JUDGE 10/07/2014 10/07/2014 CORAM; Hon. Utamwa, J._ For plaintiff; Mr. Rwegoshora Advocate. · For Defendant; Rwegoshora Advocate for Mr. Rweyongeza advocate. BC; Mrs. Kaminda. •·. Court; ruling delivered in the presence of Mr. Rwegoshora, advocate for the·_ plaintiff and holding briefs for Mr. Rweyongeza, advocate for the defendant in : chambers this 10th day of July, 2014. JHK.UTAMWA JUDGE 10/07/2014 Page 6 of 6