19980320 TZHC Tabora

t m THE HIGH COURT OF ~ANZANIA AT TABORA CIVll, CASE NO e 28 \oF 1997 REGISTERED TRUSTEES OF. THE).· .. , . PENTECONSTAL ASSEMBLIES OF) o'{, .. u •• • • • • • • • PLADiTIFF GOD TANZANIA o ) VERSUS·. DANIEL I TAJA • • • · •..,. • • • • • • •·• • • • • • • ,. • • • • ·• • • DEFENDANT R U. L I N..:J! ... !i8:!a z:ch e, _!_.:!.~"· These 1;,wo mat·ters are consolidated; for, as will appear later, they have a common denominator. The two matters.· consolidated are civil case NO• 28/97 between Registered Trustees of the penteconstal Assemblies of God of Tanzania vs. l)Sniel ' ::tr .w-z_:s:z::we::a ·- . . rtaja ....nm-me:-- ~ ~ - - , _...=~~ and .·I civil Application NO• 19/97 originating . from the High court qf Tanzania Tabora Registry civil case.No• 2/89 and going fu~ther to the . ·. ____ court of Appeal in civil Appeal No·. 41/94, which again_, _. in the 'court of Appeal 9 was once entertained aa civil ApPlication lfO,. --~6/96 "!1 Revo prancis Rwechungura, Rev .• satnwel MWenda, R8Vo paul ™ -~~-.·r.'r~~.•-·..u•~·-~ t ,-,~:.;;.s,..--~.:t.."'Yi~·~-~... ---..ir..::-1<~~.-.::•.-s:.<•·va.::•~-·----•.•..,;_•.(lr..~ .,,... Bias,.ReV& Leonard RUtten, ReV$ EPhraim Egatao, Rev. JOaah omoka . ~ ,_.,., ~-,......,.,. --- • ' -re~e-:rt ... -• · - - - 1 \ \. \ I ·was handling civil case NO• 28/97 which had been set· for healring bef'ore me o rn reading the plaint., and, inde~d, the entir~ pleadings, it struck me as if this was a camouflage, of. • a matt·e~ which he:'i gone \o the court of Appeal in civil Appeal caae wo.• 41/94, and which, for purposes of: our records;_ has b~en finalised and is just awaiting exe~ution processes.. .so, much ei s nr·. BOS z.,, t~e learned advo.cate,, ~or the· Registered . Trustees of pen.teconstfl A~sem.bl.iea of Tanzan~·a; was. v.ery .. a~ious to start the hea,ring of the· cas~,. after -li»ing up· some six witnesses~ • I, suo motu, a~~eq. ~jJn·to·.address me' .,...._ _ _ . • '!'.- • ' • . ' . . . . ~½, on whether his case (civil case NO• 28/97) ,was not ~es,,!'-!~~~~ vis a vis civil case NO• 2/f3.9 of the .J3ame Tabora neglstry .- I gave MI"'• BOSZ time· to go and pr-epare himself and address. me on the paint. rndeed, he werit to prepare ~-imself and. came back with an added assistance, Wo Mbwani., who intro,duced himself e.s an advocate· based. in nar es s8 laamo I have· listened to the addresses of these two Co.tlnsel.s· on the poi~1t of res •1udicata •. unt'_ortUI1ately I could note have the benefit of heSJt•ing from the_ q~her side becaalte :r am· informed that nev. Archbishop rtaja i>e.fused to accept summons 1• 1• AB the subject matter right now is res judicate,. . I propose to solely address my mind on that one. And, ,I propose.· to do it this wayl First, I will revist the 1aw Oil· res judioata • :,., •• J i what it is and what the courte have said about it.,. I. will. 'f then go ·to narrate the facts of the two cases conso;tidatea .. : Lastly, I will test these facts to the law and.see.whether the matter is res judicata or not. Basioally, the doctrine of res judicata is provided in S• 9 of the civil procedure code 1966., I q-uote that section, in full: 1t reods :-~ 11 9: NO• court shall. try any suit . or is~u~ in which the matter directly I.• end substantially in j_ssue has been . directly arid substantially in fasue. in, a forroer suit between the same . ' parties or between pa~ties under 3 whom they or any of them claim. litigating under the same title in a court competent to try such subseque11t suit or the suit in which such is~ue hes been eubsequently raised and has been heard and finally decided by such court o 11 There are six explanations to that d'"'ct.'.l:ine.~ and these are; 1. t1The e:xpi>assir,r.i,1m formr'.'.~. suitn shalJ denote a ' suit which has b~en feoided prior to the suit in question ythether or not it was instituted prior thereto.,n 2·. 1tiror the purpose of this section, the competence of e court shall be determined irrespae:t.ive of Any provisions as to a right of appeal from the decision of such court en 3. «The matte- ~bove referred to must in the former suit have been alleged by one party and either denieiH or admitted~ expressly or impliedlJ, by the otheroll 4, UAnY matter which might, and ought to have been made ground of defence or attack in such former suit shall be dO'smed '(r/" have been a matter directly and substant:ially in issue in such suit c,11 5. nAnY relief,; claimed in the plaint., I which is not expressly granted by · the decree, sha.11., for ~he purpt9ses ~f thi~ se6tionrbe deemed to haue been refusedon .... 4 6. nwtiere·persone litigate bona fidG ' in respect of' a public right,·,, o,r o·f a private right claimed in,CoplmOn. for tb.:emael ves end others, all pe~sons ·interested in such Eight shall, for the purpose of this sec.tion.,.. be deemed to claim under the pers,_::m··,so litigating.n Basically, that is what res judicate is - simpl:,t put~ ·, it is a doctrine whi.ok>, :r:- ~-"'g;nis eP the stubbdrrtne·a 0 . ,,,..., •r-~,••-·=---•·~-~ of a· human" beii1f~ to f'.i. ve in t 0 def'ea t" tt plugs l:ioies that an adamant litigant may use in order to abuse court prooees·•· NOW, what have courts and authors said about the doctrine? ~1:.,E;.,~ . ~!t~-~E.,,~]=~cobs. . in their bo'ok ,t~~~geIJ1z.t=P..t.J?l.fli4din[Ui .. , .12th edition, at page 1145 describe nes Judioate• sometimes referred to as II,..,... juqgmenfi recoveredn ......, • .d$..ZX.!-~·,.......- .... - d ....,..... in the fftllowin~ langua~e.: They say.: u A judgment recovered. by th&· plaintiff in an action in an English·. court r.:.erges the or:i.gipal ceuae of action and affords a ~o:od defence to a second action for the same causeon They ~o on to say: 11The rule th At a previous recovery of judgment. ia a bar to a subsequent·· action for the same caus·e applies to action for wrongs as well as for aotions on contracts\, provided such judgment be final and conclusive .u .. .. 5 .... . They further say : 1o JUdgment .recovered against the plaintiff is conclusive between the· parties as to all matters adjudiCGlted upon, end is a defence by way of estc>ppel to a subsequent ·,· action in which the same matters are brought in question~u And~ what have court said? .. sir udo udoma C•J•. (as he then was in Karshe v. ue;a~~- T~SJ;lSP?rt...,Q~ r 1961] E~A. 77 4 at page 771 says, of the doctrine a u This court is not oblivious of the cardinal principle that the doctrine of res judicata is not a technical doc~rine applicable only to records. rt is a fundamental doctrine to all , courts tha_t there must be an end to litigation as a matter o_f public policy•" on Ha:: went .Lto says n This _doctrine has found expression in the la tin maxim intere·st reipublicae ut sit finis litiu.», still way down;_ sir Ude UdQma says s tr rn generq.;!: ·terms, the impression • I f:orm ·from, these -.ca~e!3 s~_ems •- ·' j __ ,,. ~ "· ' to me to be this: that once a decision has been given by a co~t of 'competent Jurisdict_ion between two persons over the -~ame ·subject l'riatter, ·neither of the ,--- .I 6 parties would be a11-,wcd to relitiP,;ate the issue again c,r to den3 that that decis'ion had in f's ct be en given subj e c. t to \;i,.,..~.;:a,. •..:a:,.,$=.•."'o.:•l<'.,1,a,.•,~ 1.n. . . . ..:,-...,,~.........,_-.r_~...r-,;:;:.:t:.• ...... .a•. -., . .I.I 'T«.f,.,•.t::l."11.J.~,-,r~ conditions11. (underscoring mine) oeorgt/gi~. (as he then was) in Kotak -ttd,.;, ::e,. v.....Kooverji . - i;-e::,,-91 * 1W '1t:: . . . ~ and ano·hher ..., ..., * ---c-··1 ·..a.•~.a:.._..,~~--:-;.. E•A. · 295 at page 29·6 saJs, of the doctrine of" re~. judicata ·: u The purpose of" the doc~rine, as I understand it.sis thet there should be an end to litigation. Where a court has i:qvestigated an application and has conjluded that what evdr the merits,o the law provides no remedy, it cannot really be said that the application has. · ,;;<not been determined on its merits. Re filing the application is a way of seeking a different. ruling from a court of equal juri~diction and avoiding a mechanism of an appeal .n oeorges c.J. went on to observe., o:f that particular case: n rn this case, of course, the ruling was promptly ch 8 llenged on an.appeal which proved abortive since the document was not in propel" form~11 r-re swent on: u ArJ.Y other view., it would ap~ear, wCIUld make nar.JSenae ·o:f the doctrine. .rhare would b6' no end to litigation 1 - ... .,. once it is decided that a ..·, parti.cular rule of law is applicable to.a particular· facntnl situati?,n between· parties, the~ as far as· these parties· are concerned in the identical - 7 • factual situation, the fact of the applicability of the rule is.· res judioat~ and can bP challenged only on eppealo·1/-· Jones J, in the case of The Bank of 1ndie Ltd. vs.. M&nibbai M•· P81:!}_Ltd _ .£'1965~c.A• 638 rei terater;; the rule when he 1 quotes Maugham Jo who., ~n areen Ve weatherill £f92f{J All E•R 1~! ReP 428 ,· . at pag~ 432 s~ys: The passaje readsa 11 In the leading case o:f' Henderson v • Henderson there. is to be found . the following ~ta.tement .of law by Wigram V•C•·(3..HO~.:,:~- flt p·~ 114)'.- I believe I stated the rule of the court correctly when! say that -where a given matteF be comes the subject of litigation in and of adjudication.by a oourt of .competent jurisdiction., the court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to op011. the same subject of litigation in respect of mettera which have been brought forwar_<al as part of the ·subject in contest, but which was not brought forward only because they have from negligencet- inadvertence or even accident omitted _part of their case. The plea 9f res judicata applies, except in special ·cases~ not only to points upon which the court was actuhlly required by the parties to form am opinion and pronounce e Judgment but to every p_oint which properly ~l~ed to the subject of litigation, . , and which the parties exerc:i:s ing 8 reasonable diligence might have \ \ brought forward at the time.n \ ~ brother Chip eta J.• in ond of his jud~e~t.s( ·1 am sorr1. I .., I inadvertently I do not have the ci t;a tion) said the following - nrt is centainly correct tc say that the doctrine of res judioata provides that once a court of competent juriddiction t.;o dete:tjline the matters in issue i.n any suit or proceeding between the palrties thereto has finally decided those matters., such decision, unless _____ reversed on appeal or revision, is ooncluaive., so that the parties .' . , thereto or their privies are ~-------- precluded fi!om disputing or ............,,,,-.,..-:~ questioning in any late:!'." litigation, . - ·h..a the correctness of such earlier decisionn ( emphasis. supplied)• ohipeta J• goes on to sa_y in that passage: "The doctrine further act.s as an estoppal to such p.arties to re-li tigf;lte those s~me ma1;ters in any subsequent suit because the doctrine apart from\ binding the parties" as to the mat·t~rs ·, decided, also puts to an end·;t;be particular c8u,~e o.f ::ction on which the former l::.~tigation between the parties wa a f'oundedu stated enough I think ;fl) ~·:: .;:_ ?f the 1 aw ~ wh,at, then, are the facts of t;he-. two consolidated cases? rn this Tabors reg,1.atry of-the High court, a oivll oase was opened in 1989 - civil case NOio 2/890 ' rt was.- between - reverends: These pastors were: 1. F,rancis Rwechungura 2 o John Gwisu 3~ (Jharles Tito 4·~ sam~~1 MW~nda I;'• . • , • • ·' ~ o fB'!l~ q ~ia ~i '516 :E:,~Jl'-Q p;a#el'li 7. Efraim Igatso 8 o Joa sh on,;ika Archbishop, the eight defendants have been re:terDed to in their simple names o pleadings.. however show that they are .... reverends 10· NOW, the case came before my brother KOros:ao, ·J, and ef'tel'" a real long trrial, the plai ntif'f,; the 9rchbishop1 won the case:iii · If one l~oks closely at the plaint in this case, one Will notice that it was not drawn by a lawyer, and my brother Karosse_;· J'• points that out in his judgmento However, quite clear in the plaint· is the fact that the main issue was the removal :r- of' ..... I naniel rtaja .from the archbishopo There were other issues, like that of de.famation, or loss of _:.r.come e~ t.c.· BUt 1 the main issue was the leadershi.p is.sue" The eight reverends had atti:empted to oust the archbishop, and the archbishop went to court·<>· The eight reverends never s,YG :38 tisfied with the judsment of KOrosso,. Jo· so they sought t~) appeal to the court of Appeal against the whole of Korosso l 1 judgment. The appeal got dismisa.ed by the_ court of Appeal en what appears to have \ .. - been inadvertence on part of counsel f'or appellant;· rtFi•i Boaz. The court of' APpeal,.in f'act, ended its judgment. (da·ted 3/t2/96) with the following words: nm the resul_t, for the reasons. that the notic'e -of' appeal. was not filed and secondly because the letter of ~plication f'or a copy of' proceedings was not oopied_t'{'_\ the respondent bo'lb of which are mand'.:lto:·7 7:equirements of rules 83 and 89 of the court's Rules, the appeal before us is incompetent. we are constrained to observe.that this state of' af':f'airs u ... J ::~ppened in this matter where the appellants were availed with the services of an experienced counsel, who no doubt _lwoul~~ have avoided itci we hope this state of affairs wouid be. avoided in future by counsel taking extra. car~~ in thi::- prep.~rrltioti and presentation of appeals to this court so that the appeals do not fail. ' on technicalities at great expense and inconvenience to their clients as well as the courton. so, that was it: The appeal .~""'t struck out i I am informed that the appelJ.:;int~ I•:~rit +:o m8ke another attempt at appealing to the court of' Appeal, after making ngoodn the reohnioality. one would have expected that the matter had ended thereo· one would have expected, again, that the matter, after rea(.t.trJ.~ this higb.e!:I+: trihurrnl in the land; and the intended appeal having ended that unosremoniously., the appellants would bow out accepting defeat, that it, in short,' aooepting. that.they had failed to oust their archbishop. NOW,·todaJ, in civil case NOo 28/97 the Registered Trustees of the pentecostal Assemblies of Gbd of Tanzania· ~ilea case against naniel rtaja (note again that it is the tur~ of the respondent to be :t>e.ferred to simply as l)&bi.el Itaja . and not the . Archbishop jjaniel . 1taja)1~'; And the plaint avers, that, the court should maket ti (_a) A decl 0 rati.on that defendant (IJ8niel . rtaja) is ..,~~not a member of PAGT (penteco·::·~~ ,._· .t,E1semhl i i:>s of GOd of Tanzania); (b) A permanent injunction to restrain the defendant from,, trespassing into church property or harass church members and leaders; (c) AD order directing the defendant to hand over to ·:the plaintiffs all church property which is currently in his handS{ !:!nd to vacate from church premises at ghin;yangal (d) }l1Urther or other ~reliefs as the court deems :f'i t·o (e) costs of the suit"i., In the course of the submissions befdre me; I asked Mr• BOSZ whether it :is not true or apparent that the central issue in the instant case is the removal w-• of the Arqhbiahop, which was the same as the one before KOroaso, J, and which accidentally, or inadvertently was thrown out in the court APPeal, · and he replied that the issues were not the same:.: What they wene doing here wa·s to allege and prove tha~ the Archbishop tendered forged documents before Korosao J'•i and therefore committing serious fraudQ Mro Boaz went on to sey that had the Archbishop not committed ~aud, Korosso J·•· ·would 12 - have decided in their favour. Now,this is exactly what my brother chipeta J• says may not be done. The plaintiffs nor their privies are precluded from disputing or questioning in any later litigation the correctness of such earlier decision,n That is the province of· the oourt of Appeal•.; rn bu.tt~essing the point that the plaintiff could come to this court to dispute the earlier decision of KOrosso -Ji~! f if there was fraud, Mro Boaz referred me to the court of Appeal civil APPlication NO, 18 of 1993 Transport Equipment ' ttd •' v. -:oevram po valambhia MI'• Boaz to informed me that the ---=-.,.,........, .........,.,. ==-• .. co~rt ha_s now allowed opening cases in case there was. froudi,l I asked Mro BOaz another question, a·nd this was 'Whether it is not true that the plaintiffs who now call themselves the Regis_tered ·1WUstees of the pentecostal Assemblies of GOd ' of Tanzania are not the same reverends in the earlier case NO• 2/89 befora KOrosso Ji, and MX'o Boaz said that they were not.. The trustees he said, are only three of the eight. so one cannot say that they are the same, he retorted back. Mr•· .Mbwani, the other learned counsel assisting Mr• Boaz intervened and said that it was actually a mere coincidence·, that the names were the same. I also asked a direct question: I put the question by way of suggestion: r·suggest:.ed that it would appear that the plaintiffs have come in the style of trustees 1 kiek out their archbishop th~ are now all out to _.suggest that fraud was used to obtain judgment in the case before KOrosso J I Mr o Boa·z refused that innuendoo .- 13 - NOW, what can one make out of these faot.s? I--! the dootrine ~f res judicata appiicable here1 .. would s~y the t ~) · , . 3ummarising the l_aw on res jud~cata i. IL before the doctrine of res judicata is applied the following essential elements must be shown to e~istat 1. That the judicial decision~ was pronounced by a court. of competent jurisdiction; 2. That the subject matter and the issues decided are the same or substantially tha same as the issues in the subsequent suit; 3... That the judicial decision was final and 4• That it was in respect of the same parties litigating under same title. NOw,··as for no 1, it is quite true that K0rOSSO J• court was a oourt of ·::competent jurisdiction. The present plaintiffs cannot dispute that fact6 AB for no 2, it is amply clear that the issue here is one of leadership within the church. Korosso J• hes ruled that the Archbishop stays intact: The plaintiffs cannot in civil case NO• 28/97 therefore, be heard again to pray that the oourt should issue a declaration that the defendant is ·-· . riot a member or leader of PAGTo That i~sue was resolved bY torosso J• and the court of Appeal have not disturbed it., 14 can •·. The third oneL b~ answered by saying that KOrosso J .a decision was final ~ there being no dist.urbance of it bi the court of Appeal~ And, thatt these two cases are between the same people 1s true and loud. The same plaintiffs . were the defendants in civil oe.se No; 2/89~ The fact that they now call themselves Trustees does not make any differencei· rn fact 1 it is this changing into another name which everi make.a me feel that the plaintiff'~i ~re ·abusing court process. rt makes the whole case appear vexatious. Before I make concl~sions, perhaps I should say ., i something about this whole litigation in this church of Assemblies of GOd: rt is this: L. .se·e sane tree~ of unethical. advocacy oh part of p_laintiffa. surely1 counsels on part of. the plaintiff could not have advised their clients to perform the type of drama seen in this case. rf a case goes t'- the oourt of Appeal and the appeal aborts because of improper or. late filing of documents, as was the case in KOtak'a casa supra, the advocates for the plaintiff should have advised their· clients to call it a day and respect the decision 9f ' KOrosso Jo by accepting that Daniel rtaja was their Archb~shop:.1 1:n other words, the battle had ended;• TO encourage the plaintiffs to still grapple over ·the ,'.• idea that the Archbishop must go,at an, coat,is to act unprofessionally. And, indeed courts have been known to have ordered counselsto pay costs in oases where the Counsels ·deliberately vre=-.rorq F givos bad advic~ F¢ll ... ·.: About 150 years a_gct:. an I ,ish judge (~rompton- J' said this in. a memorabl'.e passage;.. He said:,· tallti.ng of advocates a· "This court in which we sit is a temple of justice; and the advocates a~ the bar, as well as the judge upon the bench are equally ministers in that temple. The object of all equally should / be the a.ttainment of justice; now justice is only to be reached through the ascertainment of the truth.11 The passage goes on to say: 11 tet us never forget-that the advancement of iustice and the ascertainment of truth are higher, obj acts and noble.r results than arcy which in this place we can propose to oursei ves ~,,. . The. judge then refers to· the suggested not.iol} that an· advocate was a mere mouth piece of the client and continu13s, · ,n such r do conceive-is not the / the office of an advocate. His office is a higher onec TO consider him in that light is to degrade him ..; ... - He, gives to his client the benefit of his learning, his talents and his judgment: but all through he never for.get.s what he owes to l:\_imse1f and to others o H-e will , - 16 ·- not knowingly mis-state the law - he will not wilfully mis-state the facts, though it be to gain the cause of his client. He wall ever bear in mind that if he be an advocate of an individual, and retain.ad and re~erated (oft.en· inadequately) for his valuable ' services, yet he has a prior and' perpetual retainer on behalf of· truth and justice and there is n~ c::trown or other licence which in, any part~ ·or purpose, can disoharge f him from.:" that primary and panimoun t retainer on (This passage was read by sir oharles Newbold t.o the nenning .:jw:.,.7~;.!;J o.f .the university college oar-es:..gelaam on. 30th · :•January 1969 and is reported in Journal of the I)8Illling _I,SW ~ vol 2 NO• 2· -1969 at.pages 94 tt- . 104,.:) . sir (}harles Newbold ended up by he himself telling advooates these words: n These are fine words - they show where your duty a~ an advocate lies.,. They should.be born in mind always when preparing and presenting your case to the courts. ·If you do this you may lose·one or two oases, which by collaborating in the perversion of justice, ·you might have wono But, in the long run, if you d::J not seek the advancement you will not.be successf.;ul and, above all, in the long run you will not be 17 - able.:to live with yourself o And I oan assure you that it _is only the person who cari live with hi111self who is reasonably happy in thi~ life.ti That's Sir Newb1lds _Mr1• Mark BOmani, The chairman of the tegal Task }i'Oroe,· while 1 presenting the Report of tbe Task Force to the Minister of JU.Stice and constitutional Affa_irs on 15th March 199_6 said this.on advocates: He saidg n Advocate~ have to remember. that they are officers of the qourt, first o so their main~ duty is to advance the cause of justiceo Their responsibility to their _client comes second·• ." ' ...... Advocates must advise their clients_ frankly and honestly and not give them advice . :· I that they ~hink thez like to hear.n (emphasis supplied) NOW, if I may come back to the instant matter, it is patently quite clear that the plaintiffs do not seek to embark on the oase they way they go because the defendant committed fraud. rn any case, after readli.ng the judgment of the court. of decidend1 is ' - APPeal in valombhitfs case, the ratio .:,. :.::..,.: .,: not that after I- losing a case in the court of APpeal the unsucoeaful litigant can g.J baok to the High c.ourt and seek re-hearing of a case that might have appeared to have been obtained by fraud. par. one thing fraud matters are basicalli criminal. The plaintiff~ could 1 if they felt strongly, report such a matter to the policei,1 rn any case, even assuming the interpretation of valambhia oase on fraud is as understood .by Mr •. aoaz,.. the - 18. - I judgroent· of KOrosso J• was delivered,... on 21/9/93, some. five years ago. The plaintiff would run into trouble with Li.tnitation period. The period within which a suit for any wrong (tort) should be filed is 3. years. tet me, again, say someihing more about valambhia's case,· the case that Mr• Boaz relies heavily upon by way of emphasis: The five. panel case that he has handed over to - .. me ia not,· on<!e again, preposition that after a case im dismissed in the court of Appeal,the unsuocesful party can go back to the High court to persue an element of fraud that might have been apparent in the case. valambhia~a case talks of inherent powers of the court of Appeal to review its bwn The quotation on page 8 of that typed judgment of the oourt of Appeal which Mr• Boaz read out is,taken f'rom the civg__pra~tice of the superior courts o~ south Africa - 3rd edition: The court of Appeal was making an illustration there;. That cannot be a ratio decidendi·. Mr:. Boaz tells me that there has been serious traud committed by the defendant and that this fraud was discovered in 199·6. I cannot accept such assertions, which, to me, appearo nothing but attempts at justi;f'ication ,&f s.oming back to the High court to challenge the judgment of Koroaao J•' in e hope of getting a differ~nt decision - exactly what oe~rgea C•J. says nwou1.d appear. would maka noiiaense ,:,f the C dootrine;~u I have read the judgment of KOrosso J. There i~ nothipg to sugg~st that. any fraud was perpetuated in that. ease. 1 The plaintiffs ane using high sounding words like fraud to. justify a oome bao·k to li tiga.tion through the baok - 18 - judgment of' KOi"osso J. was deJ.ivered on 21/9/93, some. five years ago. The plaintiff would run in.to trouble with ' timitation period •.: The period within which a suit for any wrong (tort) should be filed· is 3.. years. Let me, again, say something more about yalambhia's case, the case that Mr• Boaz relies heavily upon by way of emphasis: The five. panel case that he has handed over to - me is not; onne again, preposition that after a case it£- dismissed in the court of Appeal• the unsucces:f'ul party can go b 8 ck to the High court to persue ~n element of fraud that might have been apparent in the case. valambhie's case talks of inherent powers of the court of Appeal to review its own decision:. The quotation on page 8 of that typed judgment of t~e oourt of Appeal which Mr• Boaz read out is,taken from the -------- civil of the superior courts of south Africa - 3rd practice .... edition: The court of Appeal was making an illustration there,. That cannot be a ratio decidendi;. Mr'• Boaz tells me that there has been serious fraud committed by the defendant and that this fraud was discovered in 199·6:. I cannot accept such ·assertions, which, to me, appearG nothing but attempts at justification ._gf e.oming back to the High court to challenge the judgment of Korosso J•' in a hope of getting a differant decision - exactly what oeorges C•Je says nwou1.d appear. would maka noiisense r,f the doctrine:.!11 I have read the judgment of KOrosso J• There is nothing to sugg~st that_ any fraud was perpetuated in that: caseo; The plaintiffs ane using high sounding words like fraud to justify a oome baek to litigation through the back - 19 - . \ doori I am so'I!ry to say sf)1~• \ . . . Bl,!.t;· the case cited by Mr• Mhwani, leamed advocate, \,· . ·r tbink,· is on all fours with the present oaae. Ml'•' Mbwani I cited i:t and sought to distinguish it. I am grateful that p~ Mbw~ni has cited this case.: That is exactly what is· \ . . . expected of a good counselt~1 \ . I iave read that judgment, and, as I say is on all fcui-10 with the present ,case. That case of namdef' Malik V1e 1 . •' ..... :,.......J.,. ,... .· . . . - -- tio~e':,_~1!,er;t§allow.·c195§7 E•Ao 99 had the .following facts~' · \ · rot . and .so t~at it ma~J,. appear that there has been· some mis-stating of facts; I reproduce the facts as they appear in the report• .... They reads . . . . '1· :rn an action before a magistrate at TSnga Judgment was given i'bi' the respondent for arrears 6f salary dlsimed by him trom the appellant.· The appellant did not appeal instead he brought a new. suit against the respondent alleging that the judgment in the earlier suit had been obtained by a.fraudulent false statement made by the respondent in the course of his. evidence and asked, inter alia, that tha judgment be set aside. The alleged false statement was that cer..tain f·i1'~ . , had been signed by the respondent which , in fact had not been signed by him# regarding the completion of certain works, and it was contended that this evidence was most materia1 to the court in coming to a decision. The second suit was undefended but.P af'te.r hearing proof, the magistrate came to the conclusion I .... 20 - the . that the court had n6 · jurisdiction as the. matter was. res judicata. on., appeal; the argument was whether•, :: assuming there :·:•'-J ~:1J~:·: had been fraud as alleged, the fraud was of· such·a na'lture as to·make the earlier decree out of the category of res judicat.a .u - -- III{eld: The alleged fraud WBS. included in. something which had already been adjudged: to entertain the new action would be to re open the.issue already decided and to test again the ev.iqence of. the respondent and that of the appellant and his witness there on which the appellant could have done in the eariier suit. Appeal diamissed.n so much then for civil. case NO• 27/97 •. NOW if I ~ay molfe on. to the next file, that of civil Application N6·. 19/97 1 whioh is an application for extension of time to file an appeal to the court of. Appeal, an exercise ::t am made to under,stand which attempt at asking the court.of APpeai to entertain again their decision in the civil Appeal NO• 41/94, I can only say _____________ that this· oourt ( the High court) by' the .decision of the cour~ ofl APPeal ~tself in ·the case of Augustine philbert v. Benjamin .._~- Joseph c,ivil APpeal NO• 18 of 1986 - MWanza Registry - MUstafa thst J•A, has no jurisdiction to entertaint.application. :tn Aiugus '!?_in!3e,. 1 ·eaae my brother Mwalusanya J• had ~nted extensiom of time OP• to appeal to the court of Appcai. The court of ApPeal saidi - ... (!{Ustafe J •A• pronouncing) 1 11 .,. - wi~h respect, we think that Mwalusanya J• was not empowered to grant any extension'of time to appeal' to this co~t. He was, of course, empowered to grant a certificate of lea~e to appeal tb this oourt in terms. of section 4(~ (c} of the Appellate jurisdiction Act. But, in respect of extension of time, the provisions t.,or_ extension are contained in Rule 8 of the court of APPeal Rtilea, and the court referred to therein is court of Appeal. In the circumstances., the extension of time purpotedly given -by MWalus~nya J. is_, ineffective.; so; I would ·advise the applicants te. apply for extension of time ,With the court of Appeal itself. After saying all thai,I am sor~y the rUling has taken long, I strike out High court civil caa~Ne• 28/97 for it is res judicata vis a vis civil ~a se NO.- 2/89·,; I also strike. out the Hi!Yl c:ourt civil. APPlication NO• 19/97 for this · High court has no jurisdi?z~;i. n to entertain ' 2 \J 7 / J• :g~- • MA SAN CHE, ·JUDGE At Ta;,ora_ ~ • ' .J,-F \ .,., ,' 20th M8rdli), 1'998·•' ' .· ;: ' ' · . Mr,/ Boaz t~b applicants~ and plaintiff's. · ~,. . R'e'spondents: AbEi"entt• ' '. II ~. .. .....