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1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MSOFFE, J.A.; BWANA, J.A. AND MANDIA, J.A.) CIVIL APPEAL NO. 9 OF 2008 SHENGENA LTD APPELLANT VERSUS 1. NATIONAL INSURANCE CORPORATION 2. CONSOLIDATED HOLDING CORPORATION. RESPONDENTS (An appeal from the decision of the High Court of Tanzania at Dar es Salaam ) (Mihayo, J.) dated the 17 th day of April, 2007 in Civil Case No. 197 of 1998 JUDGMENT OF THE COURT 24 th February & 4 th March, 2011 BWANA,J.A: In order to appreciate the background of events leading to this appeal, it is desirable to state the following, albeit briefly. 1

2 The appellant herein filed this appeal on 22 nd November, 2010 following the decision of the High Court (Mihayo, J.) whereby his case was dismissed as being res judicata. The said High Court had been made to believe that there existed another similar case before the Commercial Division of the High Court (the Commercial Court) and which had been heard and finally determined. The said case at the Commercial Court involved the same parties and whose subject matter was directly and substantially the same with the matter before the High Court. The plaintiff then (the present appellant) resisted that averment, stating that the two suits were different. To satisfy himself as to the correctness of the information, the trial judge directed Mr. C. Tenga, then acting as counsel for the appellant, to verify the position and report to the trial court on 17 th April, 2007, a date fixed for Mention. On that date, both the appellant and Mr. C. Tenga did not enter appearance. The trial judge then made the following order, which for ease of reference, we reproduce hereunder:- 2

3 Order: In view of the fact that this court gave Mr. Tenga time to check whether the case in the Commercial Division of the High Court is the same as this one, and in view of the failure by Mr. Tenga to report to court the position, I have to accept the view taken up by learned counsel for the Defendant and order that this case be dismissed for being barred by res judicata. (Emphasis provided). Aggrieved by that Order of the High Court, the appellant preferred this appeal. Mr. Reuben Tenga Mtaita, a senior officer of Shengana Ltd, appeared on behalf of the appellant. Mr. Samson Mbamba and Mr. Jerome Msemwa, learned counsel, appeared for the first and second respondents, respectively. 3

4 Before us, there are two issues for our determination. They are- Whether it was legally proper for the trial judge to dismiss the case before him on a date fixed for Mention. Whether the trial judge had sufficient material/evidence before him on the 17 th April, 2007 on which to base his dismissal order of Civil Case No. 197 of 1998 on the ground of res judicata. Both parties to the appeal addressed us on the above two pertinent issues. Mr. Mtaita, a lay man, did not say much save to reiterate that it was not correct to hold that the two cases, that is, Civil Case No. 197 of 1998 and the one at the Commercial Court, involved the same parties and the same subject matter. He averred that the two cases were distinctly different. Further, he averred that the matter before the Commercial Court was still pending. It comes up for judgment on the 2 nd May, 2011 before Mruma, J. On his part, Mr. Mbamba, learned counsel, submitted that while Civil Case No. 197 of 1998 was indeed coming up for mention on 17 th April, 4

5 2007, the trial judge was right in dismissing it as counsel assigned to verify the issue of res judicata failed to comply with the order of the court. He did not enter appearance on the date fixed for mention and report his findings. According to Mr. Mbamba failure to comply with that order was an abuse of the court process. Further, Mr. Mbamba drew the attention of this court to the fact that previously Mr. Tenga had admitted in court that the two cases were similar; they involved the same parties and same subject matter. He was therefore estopped from denying what he had earlier stated in court as provided for under section 123 of the Tanzania Evidence Act. Mr. Msemwa, learned counsel, supported Mr. Mbamba s submissions. In view of the above summary of facts, it is apparent that this appeal can be disposed of by considering the two main issues namely whether a case can be dismissed on a date fixed for mention; and whether the trial judge had sufficient material to enable him dismiss the suit on the 17 th April, 2007 on the basis of res judicata. We find it apposite to start by considering the issue of mention. 5

6 Mention is a word commonly used and or applied by our courts in this jurisdiction. However, it lacks legal backing. The Civil Procedure (CAP 33 R.E. 2002) does not provide for mention. As stated by this Court in The Executive Security, Wakf and Trust Commission vs Saidi Salmin Ambar (Civil Appeal No. 7 of 1996) (unreported), mention is not a legal requirement but one of practice only (See also Lembrice Israel Kivuyo vs M/S DHL World Wide Express and Another (Civil Appeal No. 83 of 2008) (unreported). It is, therefore, a practice before courts of law whereby parties to a case appear before the court to ascertain the state of pleadings or stage reached in the trial and then proceed to make necessary orders. It is not the practice of courts under our jurisdiction to dismiss or make other orders that substantially bring a case to finality on a day fixed for Mention. In our considered view, therefore, a case can be dismissed for various, legally recognized grounds when it comes up for hearing, not Mention. In the present case, we find it improper for the trial judge to have dismissed the case when it came up for Mention. This brings us to the issue of res judicata. 6

7 Briefly stated, the doctrine of res judicata entails the identity of parties (or their proxies); subject matter; and cause of action between two cases, one of which has been conclusively and finally determined prior to the suit in question, before a court of competent jurisdiction. Both sections 9 and 10 of the Civil Procedure Code amplify on the doctrine. There is no dearth of authorities on the doctrine (See for example: Holystead v Taxation Commissioner (1926) Ac 155; Regina v Connely (1963) 3 W.L.R 839, 850; Stephen Wasira v Joseph Warioba (1999) TLR 334). It is settled law that where a party (or his proxy) is precluded from instituting a further suit in respect of any particular cause of action, he cannot institute a similar suit in any court to which the Code applies (S. 10 of the Code). The rationale behind this is that there should be a finality to litigation (thus the latin maxim: debet esse finis litium). The need for finality of litigation, notwithstanding, there is always the overriding requirement that justice must be seen to be done in all litigation. In the instant case, the trial judge might have been driven by the need to 7

8 have the matter before him finalized. The fundamental question however, and as we see it, is whether the said trial judge had, in his possession conclusive material to make him invoke the doctrine of res judicata on the 17 th April, We find none. In his order of that date, it appears that he relied upon the views of counsel for the defendant, following the non appearance of the plaintiff and his counsel. In our considered view, that was wrong. In conclusion, we allow the appeal with costs. The record to be returned to the High Court with directions to proceed with the hearing and determination of Civil Case No. 197 of 1998 on its merits from where it stopped i.e. just before the dismissal order dated 17 th April, We order accordingly. DATED at DAR ES SALAAM this 2 nd day of March, 2011 J. H. MSOFFE JUSTICE OF APPEAL 8

9 S. J. BWANA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original M. A. MALEWO DEPUTY REGISTRAR COURT OF APPEAL 9

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