19790403 TZHC Mbeya

J V - N THE. HIGH COURT ,.OFVVTANZANIA ATMBEYA V.. , (PC) CIVIL APPEAL NO. 22 OF 1978 (From the decision of the District Court Of Runge at Tükuyu • in Civil Appeal No.55 of 1978.) .... .. V MUMBEGE MBOGOSO ......:....ø...............e.... APPELLANT V versus V ... V MWAITENIA NWAKIBORWA RESPONDENT JUDGMENT .MACKANJA, R.M. EXTO JURISDICTION: V V. In ñy view the case froth which the presnt apea1 stems is barred by "resjudcata",. coiseqtient upon whichthe present appeal is ±hcornpéteñt. I shall no.wsaywhyexactly this appeal is •iflcoñpetent on account of --jth6 original proceedings being barred • by"res judicata'." While he was being examined by the trial court the appellant, then the plaintiff, had this to say V Nilipa'ta kfungua'shaurila kumdaidaiwa,mahari ng'ombe •jike' saba na shs.500/= hapa rnahakamani lakini nikaambiwa • ,: kuwa..siwe.zi kurudishfwamahari kwa sababu thke wangu Elisia Kibolwa ni mzee......," Liberally paraphrased in Eiglish'thisexpert would go to the ,•effect that the appllant.unsuccessfull' suedthe'aametespondent for refund of seven cows and shs.500/= being rèfünd 'for'idewealth hehad: paid when he: got married to 'Elisia Kiboiwa, the re.pondent's daughter. As if the appellant's testimony on this factwas not enough,-, the respondent also complained that .. ......Mdai , a1imfukuza mke wakeakadai kurudishiwa. mahari yake lakini mahakama iliamua kuwa mdai asirudishiwe mhari yoyote kwa sababu Elisia Kibolwa,bintiyangu, amekuw4i mzee sana' na amezaa watoto watano na The appellant losL the ' 1 im before the same Primary Court of Kandete In Civil Case Nc.52 of 1976, , It is of interest to note that nowhere is it indicated that the -appéllantever'appealed against that decision. As it is, the issue contested in both the two cases, the parties and the court are the same. No,, 2 - No newis.sue in. ±h cson introdu:.. To clarify this point I may here pause and refer to the classic judgment of Sir William de Grey in the case of the DUCHESS OF KIN.GSTONE 2 Smith's L.C. 13th, E.d.644 7 645 asquotedin..the. QF CIVIL PROCEDURE by D. F. MULLA (10th Edn) r.37. We find the leading principles of res judicata in that judgment. The court had this to say:- "From the variety of cases relative to judgments being giyen in evideein civil suits, these two deductios seem to follow as generally true: FIRST that judgment of a court of concurrent jurisdiction, directly upon o thepoint, is as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, diret1y in question in another court, SECONDLY, that the judgment of a court of exclusive jurisdiction, directly on the point, is, in like manner, conclusive ippn the same ma-tteri between the same parties, coming incidentally in another court, for a different purpose. neither the judgment of a court, of' concurrent or exclusive.. juidiction is evidence of any matter which came collaterally i question, though within their .jurisdtio.n nqr of any matter incidentally cognizable, nor of ary matter to be Lnfer'red by argurrent from the T judgment. .. . . . .. From this exposition of the law five conditions which have to be established before the doctrine of res judicata applies can easily be extracted. For ease of reference they are as shown hereunder, that is to say - The matter directly and substantially .in isue:.i.t1ie subsequent suit or issue must be the same matter which was directly and subantially'in issue, actually or,constructively inthe former suit0. he former süittnut have been a suit between the same parties or their:representatives in interest0 . . . The said parties must have litigated under the same title. The cdurt which decided the ,former suitmust have been competent to try the subsequent suit. The matter directly andubsLantial1y in issue in the subsequent suit must have been heard and\ finally decided by the court, in the firt suit 0 . ... ..3/ The - 3 - The - ruxeft'he-matter.-nowjs to decide whether the case appelad against is covered by all the five principles eriUmciatd above0 ewud without further eervatioñ, aswer th that question inffirmative 0 And I now say why: the matter in the former suit and the subsequent suit was the same - ca-±m for refund of 7 coes and shs.500/= paid as bridewealth, scondly, in suits the parties are the same -son-in-law against father-in-law; the litigants are; as they had in the frmèr suit,, litigating under. the same title; fourthiy, the trial court which decidd both suits is one and the same having the same éxclusivè - jurisdiction; and finally, the claim in the former suit was disallowed after a full trial. Under these circumstances the only course which was open to 'theappellant Was to appeal against the fofmer suit in which he lOst. 1n failing to do sO he forfeited his right to any claim which might otherwise have been allowed on appeal. I would have held otherwise if the appellant's appeal against theformer case Would have bèen'thade impossible to hear and determine by reason of the stolen recÔrd 0 If the records got missing before the appeal was heard the case of JOSEPH MASUMBUKO (1972) the appellant. In that ease this court, citing the case of HAIDERALI LA1OO ZAVER V.R. (1952) 19 E.A,COA O 244 held that ".,.... wherethe redord was lost before the'hering of the appeal before the High Court of Kenya 'a Judge ordered' 'a retrial and this was upheld by the Czurt of Appeal andpart of the judgment reads: 'The courts must in this matter try to hold the scales of justice evenly between the parties and., whilst an unsatisfactory solution can be expected for such an unsatisfactory state of affairs asthis appeal discloses, we think that the course followed by the learned Judges in the first appeal was on the balance the fairest and most just, and is the only solution wiich offers an opportunity for a judicial determination on the merits of the cas€ 1 fl. This court went on to say that it was indeed not possible to judicially assess the merit of those appeals without the notes of evidence and exhibits 0 The case I have cited related to a criminal prosecution. I consider, by analogy, however, that the principles governing civil matters under similar situations are the same. In which case the decision in the case of MASUMBUKO fully covers the 4