ESSO TANZANIA LIMITED v DEUSDEDIT RWEBANDIZA KAIJAGE 1990 TLR 102 (CA)

 

ESSO TANZANIA LIMITED v DEUSDEDIT RWEBANDIZA KAIJAGE 1990 TLR 102 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Nyalali CJ, Makame JJA, Kisanga JJA, Omari JJA, Ramadhani JJA, Mnzavas JJA

and Mfalila JJA

B 22 August, 1990

Flynote

Civil Practice and Procedure - Res judicata - Full bench of the Court of Appeal.

-Headnote

C In a hearing of a preliminary objection the justice of appeal found that the

ground of appeal on the jurisdiction of the High Court to entertain the case previously

before it had been finally disposed of and became res judicata. He upheld the

preliminary objection, ordered the striking of that ground and ruled that the appeal

should proceed D before an ordinary bench on the remaining ground without the

need to convene a full bench of the Court of Appeal.

Held: (i) The question of jurisdiction had already been finally decided by the Court of

Appeal during a previous E appeal on the point, the learned High Court judge could

not reopen the matter by making it one of the issues to be decided by him. The

question was and is res judicata;

(ii) As the question of jurisdiction was the basis for convening the fill bench of

this court, this ruling renders such F need unnecessary as the rest of the grounds can

be decided by an ordinary bench.

Case Information

Order accordingly.

Shivji, for the appellant

G Uzanda, for the respondent

[zJDz]Judgment

Mfalila, J.A., Nyalali, C.J., Makame, Kisanga, Omar, Ramadhani, and Mnzavas, JJ.A.:

In this appeal, the H appellant company is challenging the decision of the High

Court in a judgment in which its dismissal of the respondent from employment was

declared invalid.

A total of six grounds of appeal were filed in the amended Memorandum of appeal.

However Prof. Shivji learned I counsel for the respondent filed a preliminary

objection against ground No.1 "on the ground and for reasons that the issues and

matter raised therein are res judicata". At the hearing, Prof. Shivji submitted that the

question of

1990 TLR p103

MFALILA JA, NYALALI CJ, KISANGA JJA, OMAR JJA, RAMADHANI JJA, AND

MNZAVAS JJA

jurisdiction as raised in ground no. 1 was finally decided by this Court on appeal from

the decision of the High A Court in Civil Appeal No.10 of 1982 and that therefore it

cannot be reopened in the same Court in the same suit between the same parties. He

added that it was because of this earlier decision that the question of jurisdiction was

not even raised at the subsequent trial in the High Court. B

In reply, Mr. Uzanda submitted with commendable boldness that the learned High

Court judge should have included the issue of jurisdiction as a question for this

determination, because it was specifically raised in the Written Statement of Defence

and that his failure to do so rendered his judgment bad in law. As the learned judge

failed to C raise this point, he said, the issue is not res judicata.

Having considered the matter, we are of the view Prof. Shivji is correct. It is true that

the question of the Court's jurisdiction was raised in the Written Statement of

Defence and therefore was one of the issues raised in the pleading, but it was also

raised specifically as a preliminary point at the start of the hearing on the basis that if

D successful, it would completely dispose of the suit. Indeed the outcome was

successful and the suit was completely disposed of by its being dismissed. However,

the respondent successfully appealed to this court which held that the High Court

had jurisdiction to try the case. This court ordered the trial to proceed. When

therefore the trial opened E before Bahati, J. on 14/4/88, the question of jurisdiction

had already been finally decided by this Court, the learned High Court judge could

not reopen the matter by making it one of the issues to be decided by him. The

question was and is res judicata. F

For these reasons we uphold Prof. Shivji's preliminary objection and order that

ground No. 1 be struck off.

As the question of jurisdiction was the basis for convening the full bench of the court,

this ruling renders such need unnecessary as the rest of the grounds can be decided by

the ordinary bench. G

Accordingly we adjourn the proceedings to the later sitting of this court before an

ordinary bench.

Order accordingly. H

1990 TLR p104

A