wambura evarist 6 others vs fishpack t ltd under liquidation another 2005 tzhccomd 54 1 december 2005

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 70 OF 2005 l.WAMBURA EVARIST 2 .MARY MATEGERO 3 .J. NYANZA t/a NATANIEL SERVICES 4 .MWEMA NYITUGA ....... ^....PLAINTIFFS 5 . JOHN MAWAZO & ZULU NYAHENGE 6 .REGINA MASENYI 7 .MICHAEL NYEKUMBARA VERSUS 1.FISHPACK (T) LTD (Under Liquidation) (...DEFENDANTS 2.SADOCK DOTTO MAGAI Counsel: Mr. J. S. Rweikiza for Plaintiffs Mr. Galeba for 2nd Defendant ; RULING Dr. Bwana, J: 1. On 12 August 2(f)05 the Plaintiffs jointly filed a plaint against the Defendants dairying inter alia, for a sum of shs.84,249,394/- plus interest, damagds and costs of this suit. 2. In his Written Statement of Defence, the second Defendant has raised a prelimiriary objection couched in the following words:- 2.1. The Plaintiffs lhaving been aggrieved by the judgment of this court dated 13 December 2004 in Commercial Case No. 13 of 2004, lodged h Notice of Appeal to the Court of Appeal against the whole of the said decision on 27 December 2004. This suit is therefore misconceived and incompetent. 1 2.2. This suit is Res Judicata Commercial Court No. 13 of 2004. 2.3. The Plaintiffs have no locus standi to make allegations made at paragraphs 7, 9, 10, 11, 12, 13, 14 and 15 of the plaint. 3. Both Counsel presented their arguments by way of Written Submissions. In support of his submission and in respect of the three points of preliminary objection, Mr. Galeba is of the following views. 3.1. Concerning the appeal before the Court of Appeal, it is argued that this matter is subjudice. The proceedings in the Court of Appeal are said to have commenced on 24 December 2004. They involve the same parties to the present suit. They are the same parties involved in Com. Case No. 13 of 2004. Mr. Galeba relies on the provisions of section 8 of the CPC to prove his case that this court, therefore, has no jurisdiction to entertain the same issue. 3.2. As regards Res judicata, it is Mr. Galeba’s submission that since the matter in the present case was directly and substantially in issue in the previous suit, and further that it is between the same parties before a court with a competent jurisdiction, then this case cannot proceed, under the Res judicata Rule. 3.3. Mr. Galeba also submitted that the plaintiffs have no locus standi to raise matters pleaded in the paragraphs shown. He therefore prays that the said paragraphs be expunged from the plaint. Should that be granted then this court will have to 2 determine whether the remaining paragraphs do disclose a cause of action against the second defendant. 4. I must note at this stage that Mr. Nyangarika, Counsel for the first defendant, filed no submissions in respect of the issue at hand. 5. Mr. Rweikiza controverts the views submitted by Mr. Galeba. He argues that there is no appeal pending in the Court of Appeal in respect of Com. Case No. 13 of 2004. Further, it is submitted that the Res judicata rule does not apply herein as the names of the parties in the present case are different from those in Com. Case 13 of 2004. He also argues that the present plaintiffs have locus standi in respect of matters raised in paragraphs 7 to 9 and 11 to 15 of the plaint. 6. I have examined all the issues at considerable length. As to the issue of an appeal pending before the Court of Appeal, if, indeed that were the position, then this case cannot be allowed to proceed. It has to be struck out. But the Plaintiff has submitted that there is no such appeal pending. He has gone to the extent of citing relevant provisions of the Court of Appeal Rules which support his argument. It is however, my considered view that such provisions of the Rules may be cited. What is important to establish is that truly such an appeal does not exist - either it was abandoned, it is time -barred or the like. I am not clearly informed on the situation. The documents relied upon by Mr. Galeba, do not establish with certainty that the said appeal is still pending in that Court. If I were to strike out this case on that ground only to find out later that there is no appeal pending, it will cause unnecessary inconvenience to the parties. Therefore that ground on re sub judice fails, for lack of satisfactory proof. In the course of trial, 3 should it be established that indeed the present plaintiffs are proceeding with the appeal, then this suit will have to be struck out. 7. Likewise the issue of Res judicata. I do note that both parties have addressed correctly as to what constitutes Res judicata. As such, I do not intend to discuss the matter into details. What is evident, when comparing the two cases, is that the names of the parties are different. The claims may seem to be the same - in the sense that they concern large sums of money from sale of fish. The said amounts claimed are however, different. They could be covering different periods. Therefore Res Judicata does not apply in the instant situation. 8. As regards the controverted paragraphs of the plaint, it is my view that the matter can well be canvassed in the course of a trial, by giving evidence - should the case reach that stage. Not at this stage. 9. In conclusion, the preliminary objections as raised, fail. They are dismissed. No order as to costs. Dr. S. J. Bwana judge/ 1/12/2(K)5 925 words 4