Ahmed Mbaraka v. Mwananchi Engineering and Contracting Co Limited, Civ no 66 of 2008

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:  MUNUO, J.A., KILEO, J.A. And LUANDA, J.A.)

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 30^th 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, the present appellant sued for:

(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.  Not satisfied with the decision of the High Court, the plaintiff lodged this appeal.

        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 seeking the recovery of the attached and auctioned stone crusher he had purchased from Victoria Barbara who allegedly bought the same from one Godwin Gabone.

        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.  Kalegeya, J. as he then was, upheld the preliminary objection.  Dissatisfied, the appellant instituted this appeal seeking a reversal of the decision of Kalegeya, J. and an order that the matter be remitted to the trial court for determination on merit.

        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 19^th 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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