IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
(CORAM: MUNUO, J.A., KILEO, J.A. And LUANDA
CIVIL APPEAL NO 66 OF 2008
AHMED
MBARAKA………………………………………..APPELLANT
VERSUS
MWANANCHI
ENGINEERING AND
CONTRACTING
CO. LIMITED………………….…….RESPONDENT
(Appeal
from the decision of the High Court of Tanzania
at Dar es Salaam
(Kalegeya,
J.)
dated
the 30th day of April, 2008
in
Civil Case No. 131 of 2005
----------
JUDGMENT OF THE COURT
2 & 24 December,
2008
MUNUO, J.A.:
In Civil Case No. 131 of 2005 in the
High Court of Tanzania at Dar es
Salaam
(a)
a
declaration that a stone crusher with serial No. 94-101-1829800 lawfully
belongs to the plaintiff, the lawful purchaser thereof from one Godwin Gabone.
(b)
Sh.
540,000,000/= damages for loss suffered by the plaintiff (now appellant) during
the period the respondent possessed the said stone crusher.
(c)
Sh.
2,000,000/= damages per day for loss of business from the date of filing the
suit until the stone crusher is restored to the plaintiff.
(d)
Interest
on the decretal amount at the Court’s rate from the date of judgment till
payment in full;
(e)
Costs
of the suit; and
(f)
Any
other relief deemed fit by the Court.
The
respondent denied the claim. Before the
hearing of the suit commenced, a preliminary objection pleaded at paragraph 1
of the written statement of defence was dealt with by way of written submissions. The preliminary objection states, inter-alia:
“………the suit is
unmaintainable, as the same is res judicata, having been determined in
Commercial Case No. 10 of 2005……. a copy of the decision marked A”.
As
reflected at Page 47 of the record of appeal, para 1.0, Commercial Case No. 10
of 2005 was actually Misc. Civil Case No. 158/200. The error was inadvertent.
The
learned trial judge, Kalegeya, J. as he then was, considered the written
submission of counsel for the parties and upheld the preliminary
objection. Thence the learned judge
struck out the suit on the ground that it is res judicata Miscellaneous Civil
Case No. 158 of 2000 in the High Court of Tanzania at Dar es Salaam
Dr. Lamwai, learned advocate,
represented the appellant, Mr. Ahmed Mbaraka.
The respondent, Mwananchi Engineering and Contracting Co. Ltd was
represented by Mr. Amour, learned advocate.
The case started with the execution of
the decree in Civil Case No. 2 of 1997 in Kigoma District Court. The said decree was transferred to the Court
of Resident Magistrate of Kivukoni at Kinondoni for execution. In the process of execution, a stone crusher
belonging to MECCO, the respondent, was attached to satisfy the said decree.
Meanwhile, one Mohamed Kilua sued
Victoria Barbara for the repossession of a stone crusher auctioned on a Sunday
to satisfy the decree in Kigoma District Court Civil Case No. 2 of 1997. The appellant who had bought the stone
crusher in dispute from Victoria Barbara also filed objection proceedings in RM
Miscellaneous Civil Cause No. 77 of 1999 to challenge the attachment of the
stone crusher, serial number 101-407-0203-1 on the ground that it belongs to
him and not to the seller, Victoria Barbara.
The appellant lost the objection proceedings. The learned Senior Resident Magistrate
dismissed the objection proceedings thus:
I need not say much but
proceed to overrule and dismiss the application in its entirety and execution
to proceed as earlier commenced, however I order that each party shall bear
their own cost of this matter. The
applicant/objector is advised to lodge his matter if still insistent to
pursue the same before the appropriate forum as herein earlier indicated.
I order so.
20/1/2005
Sgd. F.S.K. Mutungi
Senior Resident Magistrate.
The appellant insisted on pursuing the
repossession of the stone crusher he had bought from Victoria Barbara, the
latter having purchased the same in a public auction to satisfy the decree in
Kigoma District Court Civil Case No. 2 of 1997 which was being executed by the
Court of Resident Magistrate Kivukoni at Kinondoni. Hence the appellant instituted Civil Case No.
131 of 2005 in the High Court of Tanzania at Dar es Salaam
In Civil Case No. 131 of 2005 in the
HighCourt of Tanzania at Dar es Salaam, at paragraph 4, the defendant pleaded
that the present respondent had, in Miscellaneous Civil Cause No. 158 of 2000
in the High Court of Tanzania been declared the lawful owner of the stone
crusher in dispute per the Ruling of Ihema, J. annexture B to the written
statement of defence. In paragraph one
of the written statement of defence, the respondent, MECCO, pleaded that Civil
Case No. 131 of 2005 is res judicata Miscellaneous Civil Application No. 158 of
2000 in the High Court of Tanzania at Dar
es Salaam
In this appeal, Dr. Lamwai, learned
advocate for the appellant lodged 2 grounds of appeal namely that:
1. The learned judge erred in law and in fact
in holding that the plaintiff’s suit was res judicata.
2.
The
learned judge erred in law and in fact in holding that the subject matter of
the suits was the same while in fact it was apparent from the pleadings that
the crushers were different.
Counsel
for the appellant submitted that his client, Ahmed Mbarak, was not a party to
Miscellaneous Civil Application No. 158 of 2000 in the High Court of
Tanzania. Moreover, Dr. Lamwai
observed, the said Misc. Civil Application No. 158 of 2000 was not properly
before the High Court because it was challenging the attachment and sale of a
stone crusher identified as Asset No. MECCO 1001-407-0203-1 which had been
attached in execution of a decree in the Court of Resident Magistrate at
Kinondoni to satisfy the decree in Kigoma District Court Civil Case No. 2 of
1997.
As the said execution related to a suit
in the Court of Resident Magistrate, the attachment and sale or objection
proceedings should have been in the executing court and not in the High Court
which is to say, the High Court lacked jurisdiction to entertain Miscellaneous
Civil Application No. 158 of 2000. Furthermore,
Dr. Lamwai observed, the appellant was not a party to Miscellaneous Civil
Application No. 158 of 2000 so the learned judge should have held that Civil
Case No. 131 of 2005 was not res judicata Miscellaneous Civil Application No.
158 of 2000.
Mr. Amour, learned advocate for the
respondent, resisted the appeal. He
conceded that the appellant was not a party to Miscellaneous Civil Application
No. 158 of 2000 but he contended that the appellant had bought the stone
crusher in dispute from Victoria Barbara so under the privity principle, the
appellant was an implied party. In that
regard the decision of the learned judge was correct, counsel for the
respondent urged.
The issue before us is whether Civil
Case No. 131 of 2005 is res judicata Miscellaneous Civil Application No. 158 of
2000.
Suffice it to mention here, that in
Miscellaneous Civil Application No. 158/2000 in the High Court of Dar es Salaam,
the applicant, MECCO, moved the court under Order XX1 Rules 67, 71, 88(1) and
Section 95 of the Civil Procedure Code, 1966 [now Cap 33 R.E. 2002] seeking the
following orders:
(i)
a
declaration that the sale of the applicant’s stone crusher Asset No. MECCO
1001-407-0203-1 was null and void on the ground of fraud,
(ii)
a
restoration of the material stone crusher to the applicant.
(iii)
any
other relief deemed fit by the Court.
(iv)
costs
of the application.
This issue is not complicated. It appears to us that, Miscellaneous Civil
Application No. 158 of 2000 should have been filed not in the High Court but in
the Court of Resident Magistrate which was executing the decree in Civil Case
No. 2 of 1997 in Kigoma District. Under
the circumstances, the High Court lacked jurisdiction to determine the
matter. For that reason, we quash and
set aside the proceedings, ruling and orders in Miscellaneous Civil Application
No. 158 of 2000. In that situation,
Civil Case No. 131 of 2005 is not res judicata Miscellaneous Civil Application
No. 158 of 2000.
In the result, we remit the record to
the trial court for determination on merit.
We accordingly allow the appeal with costs.
DATED at DAR ES SALAAM this 19th
day of December, 2008.
E. N.
MUNUO
JUSTICE OF APPEAL
E. A. KILEO
JUSTICE OF APPEAL
B. LUANDA
JUSTICE OF APPEAL
I certify that this is a true copy of
the original.
(P. B.
KHADAY)
DEPUTY REGISTRAR
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