19881020 TZHC Dar es Salaam

nr THE IDGII COURT OF TANZl\.J.TIA ~~- AT DAR ES Sll.Lli.AH \'¼_~~~J~~~ CIVIL Cll.SE NO,. 129 OF 1937 ..hb~ L& S. SA.GOT!. o o o ••a o o • .o • o o o a o o o o QI o • • O o 1, & a o • • Ii o ,o • • o • •DO O O o o PLi\.If~IFF versus ARISTIDES K.t,ff!JGISHl'~ t/a. /.'i.,. E. Interprises. and !Ione Ga.rage •.,. o • ~ o., • o., •• •• o o., o • ••• "DEFEND!lNT RULING BAlli1.TI 2 J. Mr. Kijugo learned counsel for ·Gl1e defendant has raised an object- ion to the hearing of.this case. Ile has· stated that there is civil case no. 46 of 1907 filed in the Resident Magistrate's Court at Kisutu which concerns tho sane parties and the SaL1c subject matter, 8.lld that civil case no.. 46 of 1987 has been deterr.dnccl ex par to in favour o:f the def onclant. il.ftcr the deteroination of civil case no. 46 of 1987 tho plainti:ff applioo. to the. High Court for the. case to be revised. Tho Iligh Court hold that revision uas prcraaturo and advised the plaintiff to file n.n application in the Resident M£1€istrate 1 s Court to rer:icdy thq si tu.a.tion. 00 - Mr., Kijugo was sub:ri. ttil'lg that tho natter which is -lih~ subject natter in thip case in tho High Court is res judicata in terns of section 9 of tho Civil Procodurc Codoo In reply, Mro Maira learned Counsel for tho plaintiff subnittcd that the question of res judicata did not a.rise and that his contention was that the Resident Magistrate 1 s Court b.c.'1..d no jurisdiction to try t11e suit and further that in civil revision no.2 of 1900 tho IIigh Court specifically directed that the natter be referred to tho District Court. Ile also sub- mitted that since tho direction of tho ITigh Court :'.las not boon acted upon 7 tho r.1.attor in the Resident Ma-Gistrato I s Court has not been finally dctcr-:- raincd. Ile· wont--~~, to. state that the pldntiff filed this suit not lmow:i.11.g that there was ai."1otb.0r suit over the sano subject natter and between tho • . J sane parties in tho Resident Magistrate's Court. !.£tor such discovery, steps wore being- taken to consolidate the two suits which arc in different _.,... counts. He sub;Ji tted. that any decree in the District Court would. not take effect because of tho interlocutory order in this case. Ile sub:.1i ttod finally t;:at since tb.c application to sot aside tho ~ parte juc.lgr.1cmt in tho lower court has 1Jecn filed, it would not be in tho interest of justice to strike off this suit. The best thin~ would be to stey- tho hearing of this suit until the application in the lower court has been cletcr:-:1inedo . Ile ci tetl s9ction G of the Civil Proccdm."c Code in support of his contcntiono In a short reply to that r-Iro Kijtl80 argued that ar{;U.":lcnts of con- solidation of suits had alron.cly boon nac1e before Ma.pigano, Jo in tho revision case and a ruling was nail.a. IIc also sulnittcc.l th[\.t the issue of -2 lack of juriscliction of tho lower Court cannot be taclC.od 1Jy filing another suit, but by appeal. Thirdly, Mr,. Kijugo contcnclod that since ;tho application to•'set aside tho ex parto ju.cler.1ont had not been heard, tho jud.gr.10nt of tho lower court was valiclo He pra.yocl that the suit be struck off as it is res judicata. Fron tho proceedings in tho Rosiclont Macistra.tc's Court civil case no. 46 of 1987, it is plain that M/S A. Enterprise~ !Ione ·aarngo filed a suit a.gmns-'G L. s. Saguti in respect of plot noo 101 Tcnoke Service Trades. This suit (46 of 1987) above nentioncd was filed on 29/6/87, But IIigh Court Civil Caso no.129 of 1987 was filed on 9/7/87. Furthornoro an ox pa.rte juc1.gr.1ent was entered in favour of M/s A. Enterprise and IIono Garngc in :Jl.,M,. civil case no 46 of 1987p and L.S. Saguti filcd.lligh Court Civil Revision no. 2 of 1988., The I:Iigh Court docli110d to nalco any revision and directed that tho applicant Lo So Saguti should nnko an application to set . aside the ex parte judgoent if he so wishes. The IIigh Court also noted that thcro was nothing to show th[',t the applicant L., s. Snguti h~l ._knot-rledgo of the existcmco of the proceedings in tho lower court when ho filed civil cnso no 129 of 1987 in tho lli.gh Court e. ncl that there wo.s no denial that there was sane undcrstrul.ding between tho advoc2.tes of both parties to consolidate tho two suits, &i.d that that urulcrsta.ndi11g was a valid excuse for tho applicant LoS• Saguti not ::in.king n.ny applic~.tion to stay tho proceedings in the lower court., I The point for consicloration mid deterr..1ination is l,hothor section 9 or soc tion .8 of· tho Civil Procedure Code applicso Soc ti on 9 · tolks of res judicata. It states: "No court shc1,ll try ~ suit or issue in which tho natter directly • :•,·:":.-and.' •.subi!l~ially in issuo in a. f ornor suit botwoen tho snne pc:i..r- tios or hotwooi1 parties under whon they or any of then clc.io li t:i.- gating Ul1der tho sane -title in a court cor.1petont to try ·such sub-· sequent suit or the suit in which such issue has been subsequently raised o.nd has boon hca.rd a.ncl finc.lly doteminod l)y such court." Then there is ~planation 1 which states: The expression 11fomcr suit 0 shall denote .a suit which has been docidod prior to the suit in question whether or not it uas instituted prior thereto. Section 8 of tho C.P.C. states: No Co·w.~t sho.11 prooood with tlio trial of ruiy suit in which tho natter ii1 issue is also directly nncl substantic.lly in issue in -- a prcv.i..ously instituted suit between tho sm:io parties, or between po.rtios wider whon they or a,ny of: then ola.in li~ga.tiug under tho sa..-:10 ti tlc whore such suit is pending in tho sane or any otllor court in Tanganyilro having jurisdiction to grant the relief clair.1edo \ 0000000/3 . ' - 3 - The question to be asked hero is whether RM civil en.so no 46 of 1987 is a ponding suit or a clecidod suit. I h·n.vo no difficulty in answering this question to tho effect that it _is a pemling suit., I say that it _is pending beco..usc al though an ox parte judguent and decrc0 wore issuod 1 there is o.n 2..pplic11tion for it to bo sot asidoo For that reason tho suit is still paneling in tho lowor court~ It follows~ thoroforo~•that the section applice.blo here is section 8 and not section 9o Tho course to be followed by this court is to stay tho suit in High Court Civil Caso no,.129 of 1907 rather than to disniss it or rojoct it .. , Mr., I½_jugo n,lso alluded to tho question that in order to avoid tho abuse of court process the rule of res juclicatn. hns to 1Je appliodo I ngroe tb.at tho rule of renjudicatc. should be applied in appropriate cases .. ·In this case as found by Ma.pigano 9 J., in High Court Civil Revision no.2 of 190G, L.,S. Snguti hrul no knowlodgo of tho Qj:istcnce of RM 1 s civil en.so noo46 of 19070 Ile cannot therefore be said to have o.lmsod tho process of cou:rt in filing Iligh Court Civil Caso no. 129 of 1907 • I _will say no noro o.bou t tbi s case . ·r ' now because wha-tihavo decided disposes of prolioinary objection.. Fror:i what I have said n.bovo, it follows that this case cannot proceed to hearing in viow of section ·O of tho Civil Procedure Cocle., Tho prococdings in thi,s case n.rc stayed pending tho dctcrnination of RM ciVil caso no 46 of 1'987. I nclce no order as to costs• bcc2.use costs will follow th0 event. ~~~ _··_·-~-~~-~:~, .Tt.JDGE 20/10/88 Ruling delivered in presence of parties. " I A•,....DAfIJI.TI JUDGE 20/10/80