GEORGE SHAMBWE v TANZANIA ITALIAN PETROLEUM CO. LTD. 1995 TLR 20 (HC)

 

GEORGE SHAMBWE v TANZANIA ITALIAN PETROLEUM CO. LTD. 1995 TLR 20 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Chua J

CIVIL CASE NO. 74 OF 1992 E

July 21, 1994

Flynote

F Civil Practice and Procedure - Res judicata - Essential ingredients of the plea.

-Headnote

The plaintiff filed a suit against the defendants claiming Shs 6,122,402/= being arrears

of salary and fringe benefits plus Shs 20,000,000/= being general damages. The

defendants raised a preliminary objection to the claim on the basis that the matter

was res judicata because it was directly and substantially in issue in RM Civ. Case

No.114 of 1988. G

Held:

(i) For res judicata to apply not only must it be shown that the matter

directly and substantially in issue in the contemplated suit is the same as that

involved in a former suit between the same parties but also it must be shown that the

matter was finally heard and determined by a competent court; H

(ii) Although it was argued that in the lower court the plaintiff had tried to

obtain the sum of Shs 6,122,402/= in the course of executing the decree of the court

there was no evidence to show that the issue as to how that sum was arrived at was

heard and finally determined before the decree of the Court was drawn up; I

1995 TLR p21

CHUA J

(iii) Res judicata is not applicable in this case. A

Case Infomation

Order accordingly.

No case referred to.

Songalawe for the plaintiff.

[zJDz]Judgment

Chua, J.: B

A preliminary objection has been raised to the claim filed in this court on the basis

that the matter is res judicata. It was contended by counsel for the defendants that the

matter directly and substantially in issue in the present suit was directly and

substantially in issue to RM Civil Case No 114 of 1988. C

From copies of the ex-parte judgment and decree passed in RM Civil Case No 114 of

1988 it is clear that judgment was entered in the following terms 'I grant all the

prayers prayed in the plaint by the plaintiff'. A copy of the decree reads: D

'The applicant plaintiff having filed this suit praying for

(a) A declaration that he is still an employee of the defendant,

(b) The plaintiff should continue to occupy the house at Kanazi Street

Kinondoni. E

(c) Costs

(d) Any other relief.

Having heard the plaintiff ex-parte and now this suit coming for final disposal

before me it is hereby ordered and decreed that I am satisfied that the plaintiff has

proved his case as required by law. In the circumstances I grant all the prayers prayed

in the plaint by the plaintiff'. F

In the present suit the plaintiff is claiming Shs 6,122,402/= being arrears of salary and

fringe benefits plus Shs 20,000,000/= being general damages. The decision of G the

RM's Court in RM Civil Case No 114 of 1988 does not decide this claim.

It was submitted by counsel for the defendant that paras 3, 4 and 5 of the plaint

contravene Order VII rule 2 of the CPC and should therefore be struck off. It has not,

however, been shown how Order VII rule 2 has been contravened for the rule

prescribes: H

Where the plaintiff seeks the recovery of money, the plaint shall state the

precise amount claimed:

Provided that where the plaintiff sues for mesne profits or for an amount

which will be found due to him on taking unsettled I

1995 TLR p22

CHUA J

A accounts between him and the defendant, the plaint shall state approximately

the amount sued for.

In the present case the plaintiff has stated the amounts he is claiming and how he B

arrived at those figures is a matter of evidence. Also by providing further and better

particulars the defendant will be in a position to know exactly what is being claimed

in terms of salaries and various types of fringe benefits.

Finally it was submitted that the suit was barred by limitation. Mr Somgalawe for the

plaintiff countered this argument by asserting that this is a suit based on C judgment

and therefore under s 6(c) of the Law of Limitation Act the right of action accrued on

the date the judgment was delivered which in this case was 23 May 1989. Under the

1st Schedule, item 16 of the Law of Limitation Act the period allowed for such suits is

twelve years. I agree with the observations of Mr Somgalawe regarding limitation.

D I should reiterate that for res judicata to apply not only must it be shown that the

matter directly and substantially in issue in the contemplated suit is the same as that

involved in a former suit between the same parties, but it must also be shown that the

matter was finally heard and determined by a competent court. In this case, though it

was argued that in the lower court the plaintiff had tried to obtain E the sum of Shs

6,122,402/= in the course of executing the decree of the court, there was no evidence

to show that the issue as to how that sum was arrived at F was heard and finally

determined before the decree of the court was drawn up. In my view therefore res

judicata is not applicable in this case and for reasons already spelled out the other

points raised are rejected. The suit should proceed for trial but before the next hearing

date the plaintiff must amend the plaint so that he indicates clearly how much he is

claiming under the different categories of employment rights and fringe benefits. G

1995 TLR p23

A