TANGANYIKA MOTORS LTD v TRANS-CONTINENTAL FORWARDERS AND ANOTHER 1997 TLR 158 (HC) D

TANGANYIKA MOTORS LTD v TRANS-CONTINENTAL FORWARDERS AND ANOTHER 1997 TLR 158 (HC) D

Court High Court of Tanzania - Dar es Salaam

Judge Msumi J E

CIVIL CASE 262 OF 1994

29 May 1997

Flynote

Civil Practice and Procedure - Res judicata - Whether applicable to a case decided exparte

F

-Headnote

The defendants raised a number of preliminary issues in their written statement of

defence on the competence of the suit filed by the plaintiff, including one which

contended that the issue was res judicata as the plaintiff had previously claimed

similar relief against the first defendant which had been dismissed for plaintiff's G

failure to adduce evidence in its support. The defendant claimed that the doctrine of

res judicata did not apply as the previous matter had been decided ex-parte.

Held:

(i) It did not matter that the earlier suit had been decided ex-parte: the

relief sought was exactly the same as that pleaded by the plaintiff in the present case.

The plea had to be upheld. H

Case Information

Order accordingly

No cases referred to.

Majithia for the plaintiff.

Kinguji and Mwidunda for the defendants. I

1997 TLR p159

[zJDz]Judgment

Msumi J: A

What are for determination in this ruling are the preliminary issues raised by the

defendants in their Written Statement of Defence on the competence of the suit filed

by the plaintiff. First defendant raised three issues but in the course of his submission,

his counsel apparently conceded that two of these issues, which are B that the suit is

time barred and that the suit immovable property has not been sufficiently described

in the plaint as required under the provisions of Ord 7 Rule 3 of the Civil Procedure

Code, were not sustainable. The remaining issue which has also been raised by the

other defendants is that the suit is res judicata. It is argued C that prior to this case,

plaintiff had filed a suit in this court as Civil Case No 126 of 1986 in which he claimed

against the first defendant reliefs similar to those claimed in the present case. The said

case was dismissed for plaintiff's failure to adduce evidence in its support. It was an

ex-parte decision. D

In reply the learned counsel for the plaintiff contends that the doctrine of res judicata

does not apply to a case decided ex-parte because it cannot be said that consequent to

such ex-parte judgment the suit has been finally determined. Expectedly the learned

counsel could not cite any authority in support of his argument. On the contrary the

law is not in harmony with the learned counsel's argument. Just to mention one

authority, Mulla on Code of Civil Procedure, vol I 4th ed at 87 says: E

`Ex-parte decrees operate to render the matter decided res judicata, and the

defendant's F failure to appear will not deprive the plaintiff of the full benefit of his

decree. But in the case of a suit in which a decree is ex-parte, the only matter that can

be directly and substantially in issue is the matter in respect of which relief has been

claimed by the plaintiff in the plaint. A matter in respect of which no relief is claimed

cannot be directly and substantially issue in a suit in which a decree is passed ex-parte

though the court may have gone out its way and declare the plaintiff to be entitled to

relief in respect of such matter.' (emphasis supplied). G

In the previous case, plaintiff prayed for the following two specific reliefs: H

1. A declatory order confirming the plaintiff as the true and lawful owner

of the suit premises viz plot No 61744 Kurasini, Dar es Salaam.

2. A permanent injunction restraining/preventing the defendant from

trespassing into the suit premises. I

1997 TLR p160

MSUMI J

A These prayers are exactly the same as those pleaded by the plaintiff in his plaint

in the present case. This means that the matter which is directly and substantially in

issue in both cases is the same and that the said matter has been finally determined by

the ex-parte judgment issued in the previous case. In other words the doctrine of res

judicata is operative in this case. B

In conclusion the preliminary objection that the suit is res judicata is upheld hence

the said suit is dismissed with costs.

1997 TLR p160