Bakari v. Kalumuna (PC) Civ. App. 285-M-69; 30/5/70; Seaton, J.

Bakari v. Kalumuna (PC) Civ. App. 285-M-69; 30/5/70; Seaton, J.

The appellant, original plaintiff in a suit in the Primary Court claimed a piece of coffee shamba and a forest worth Shs. 600/-. He based his claim against the respondent, his father, on a grant made to him inter vivos by his sister Furnella, to whom the shamba and forest originally belonged. The respondent denied the claim on the ground that the shamba was inherited by him from his father and that he had once given it to the appellant’s sister but recently reclaimed it because of the bad conduct towards him of the appellant and his sister. The Primary Court found that the appellant was entitled to the shamba since inherited by his sister and validly given to him. The District Court on appeal reversed the decision and dismissed he suit on the grounds that in a previous suit C.C. 100/67 the appellant had successfully sued the respondent for a shamba given to him by his sister. The same witnesses had testified in the earlier case, which was also based on will/inheritance although it concerned different property from the shamba and forest involved in the present suit. The District Magistrate referred to Sadik Rwiza vs. Felician Alfred (MZ) (PC) Civil Appeal 232/68 and held that the appellant could not separate the issues and bring two separate actions each; else there would be no end to litigation. On appeal to the High Court the appellant submitted that the doctrine of res-judicata was not applicable in this case as the respondent only recently trespassed of the coffee shamba and forest and gave the appellant a reason to sue.

            Held: (1) “I am of the view that there is merit in this submission which is borne out by the respondent’s own admission. The law permits a fresh action for trespass every time one is committed. This right to sue is not displaced by Rule 12 of the Civil Procedure in Primary Courts Rules, (G.N. 310/64) not withstand its purpose, which is to prevent the same matters being litigated again and again by the same parties.” (2) “The appeal is allowed with costs to the appellant in this Court and in the lower courts.”