IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 33 OF 2016 DR. BHAKILANA AUGUSTINE MAFWERE t/a BAKLINA ANIMAL CARE APPELLANT VERSUS .. ANNAEL GIDEON ORIO . GORDON Z. NGOGOMBA |. JUMA A. NGOJIGO sss RESPONDENTS, |. USHIRIKA WA WAKULIMA WADOGO WADOGO KILIMO CHA UMWAGILIAJI MPUNGA DAKAWA LTD (UWAWAKUDA LTD) (Appeal from the decision of the High Court of Tanzania, (Commercial Division) at Dar es Salaam) (Songoro, J) dated the 20" day of March, 2015 in Commercial N PUNE 131 of 2014 ORDER In Court this 6™ day of April, 2020 Before: The Honourable Mr. Justice R. E. S. Mziray, Justice of Appeal The Honourable Mr. Justice L. J. S. Mwandambo, Justice of Appeal And The Honourable Madam Justice R. J. Kerefu, Justice of Appeal THIS APPEAL Coming on for hearing on 24" day of March, 2020 in the presence of Mr. Nduruma Majembe, learned Counsel for the Appellant and 1°, 2% and 3° respondents appeared in their personal capacities, Mr. Prof. Cyriacus Binamungu, learned Counsel represented the fourth Respondent, AND UPON HEARING, the parties, when the appeal was stood over for judgment and this appeal coming for judgment this day; IT IS ORDERED THAT; the appeal is devoid of merit and it is hereby dismissed with costs. DATED at DAR ES SALAAM this 6" day of April, 2020. } E.G. iG! DEPUTY REGISTRAR COURT OF APPEAL Extracted on 6™ day of April, 2020IN THE COURT OF APPEAL OF TANZANIA AL SAI ‘CORAM: MZIRAY, J.A., MWANDAMBO, J.A. And KEREFU, J.A.) CIVIL APPEAL NO. 33 OF 2016 DR. BHAKILANA AUGUSTINE MAFWERE t/a BAKLINA ANIMAL CARE .. APPELLANT ‘VERSUS 1. ANNAEL GIDEON ORIO 2. GORDON Z. NGOGOMBA 3. JUMA A. NGOJIGO ssseeRESPONDENTS: 4, USHIRIKA WA WAKULIMA WADOGO WADOGO KILIMO CHA UMWAGILIAJI MPUNGA DAKAWA LTD (UWAWAKUDA LTD) (Appeal from the decision of the High Court of Tanzania, (Commercial Division) at Dar es Salaam) (Songoro, J) dated the 20" day of March, 2015 in Commercial Case_No. 131 of 2014 JUDGMENT OF THE COU 24" March & 6” April, 2020 KEREFU, J.A.: The appellant appeals against the decision of the High Court of Tanzania, (Commercial Division) at Dar es Salaam (Songoro, J) dated 20" March, 2015 dismissing Commercial Case No. 131 of 2014 on the ground that it was res judicata. The said ruling was from a point of preliminary objection raised by the fourth respondent and argued by both parties.Before embarking on considering the merits or demerits of the grounds of appeal, we find it apposite, albeit briefly to give the material facts giving rise to the suit and later this appeal as obtained from the record of appeal. It started with an agreement entered on 25" March, 2009 between Dr. Bhakilana Augustino Mafwere, the appellant herein and Ushirika wa Wakulima Wadogo Wadogo Kilimo cha Umwagiliaji Mpunga Dakawa Ltd (UWAWAKUDA Ltd), the fourth respondent herein. As per the said agreement, the appellant was required to supply the fourth respondent with 11,800 bags of UREA fertilizers during farming seasons in 2008/2009 at the tune of TZS 31,000.00 for each bag weighing 50 Kgs plus TZS 2,000.00 as transport costs to the intended destinations in Dakawa. It was further agreed that upon each consignment being delivered, the fourth respondent could pay half of the costs and the remaining half was to be paid within a month. Further to that, upon failure by the fourth respondent to pay the remaining balance within a period of three months the interest of 2% per month would be charged. It is noteworthy that for UWAWAKUDA Ltd the agreement was signed by Annael Gideon Orio and Gordon Z. Ngogomba, the first and second respondents, as the then chairperson and secretary of UWAWAKUDA Board, respectively. It wasfurther alleged that between 25" March, 2009 to 10" April, 2009 the appellant supplied a total of 2,360 bags worth TZS 77,880,000.00 but was not paid. Consequently, the appellant instituted Civil Case No. 17 of 2009 in the Resident Magistrate’s Court at Morogoro against the fourth respondent claiming payment of TZS 77,580,000.00 being the total costs of the UREA bags he supplied. Having heard evidence from both parties, the trial court was satisfied that the appellant had proved his case and thus awarded him the respective claim by ordering the fourth respondent to pay a total sum of TZS. 77,880,000.00. Aggrieved, the fourth respondent successfully lodged an appeal in the High Court of Tanzania at Dar es Salaam vide Civil Appeal No. 133 of 2011, where the judgment and decree of the trial court was dismissed. Dissatisfied, the appellant lodged a notice of appeal against that decision and accordingly served the fourth respondent. Unfortunately, for reasons which were not clearly made known to the Court, the appellant did not pursue the said appeal but decided to institute a fresh suit at the High Court of Tanzania, (Commercial Division) i.e Commercial Cause No. 131 of 2014 against the first, second and third respondents in their personal capacities under the same agreement claiming to be paid the same amount== TZS 77,880,000.00 together with the accumulated interests from 10" May, 2014 to 10" October, 2014. In their written statement of defence, the first, second and third respondents denied the appellant's claim and applied to the trial court to join the fourth respondent as a ‘Third Party.’ In her written statement of defence, the fourth respondent also disputed the appellant's claim and raised a notice of preliminary objection contending first, that the notice has been drafted contrary to the Commercial Court's Rules and second, that the suit was res judicata. Upon hearing the parties on the objection raised, the trial court (Songoro, J.) sustained the second point of objection and dismissed the appellant's suit. Dissatisfied, the appellant appealed to this Court. The Memorandum of Appeal contain three (3) grounds of appeal raising two main issues, one, whether Commercial Case No. 131 of 2014 was res judicata as ruled by the High Court and two, whether the points raised by the third party were points of law to dismiss the matter by way of a preliminary objection. When the appeal was placed before us for hearing, Mr. Nduruma Majembe, learned counsel, entered appearance for the appellant, whereas Prof. Cyriacus Binamungu, learned counsel represented the fourth“=seondent. The first, second and third respondents appeared in their personal capacities, unrepresented. In his submission to expound on the above issues, Mr. Majembe commenced his submission by adopting the appellant's written submissions lodged on 25" April, 2016 to form part of his oral submissions. He then Clarified the first issue By citing section 9 of the Civil Procedure Code, [Cap. 33 R.E. 2002] (the CPC) and forcefully submitted that the ingredient of res- Judicata were not met for the learned trial judge to invoke that principle. He said, the parties in the former and the subsequent suit were not the same. He submitted further that, in Civil Case No. 17 of 2009 parties were the appellant (who was the Plaintiff) and the fourth respondent (who was the defendant), while in Commercial Case No. 131 of 2014 parties were the appellant (the plaintiff) and the first, second and third respondents (as the defendants). He said, the fourth respondent was joined later as a third Party and if the trial Judge had considered the status and identity of the parties, would have found that the parties were not the same because in the former suit the fourth respondent was the defendant sued as a body corporate, while in the subsequent suit the first, second and third respondents were sued in their Personal capacities as natural persons. To 5eoSer his argument he referred us to The Registered Trustees of Chama Cha Mapinduzi v. Mohamed Ibrahim Versi and Sons, and Alimohamed Mohamed Versi, Civil Appeal No. 16 of 2008 (unreported). Mr. Majembe contended further that in Civil Case No. 17 of 2009 the fourth respondent was the defendant, while in Commercial Case No. 131 of 2014 was a third party. He insisted that, as a third party, the fourth respondent was not a party to Commercial Case No. 131 of 2014 as decided by this Court in Hasnain M. Murji v. Abdulrahim A. Salum t/a Abdurahim Enterprises, Civil Appeal No. 6 of 2012 (unreported) where the Court, among others held that, since the appellant was impleaded and took part in the trial proceedings as a third party, was not a party to the suit. He as such, urged us to find that the fourth respondent was not a party to Commercial Case No. 131 of 2014 as she was only joined as a third party. As regards the subject matter, Mr. Majembe submitted that, although in both suits the appellant was claiming under the same agreement on account of their different identity and status, the subject matters at issue were different. It was his further view that since at the time of determining the preliminary objection issues were yet to be framed, it was not possible 6= the trial judge to determine the subject matters involved in the two suits. On the second issue, Mr. Majembe argued that it is settled that a preliminary objection must be on pure points of law and not facts. To support his preposition he cited to us cases of Mukisa Biscuits Manufacturers Co. Ltd v. West End Distributors Limited [1969] E.A 69 and Hammers Incorporation Limited v. The Board of Trustees of the Cashewnut Industries Development Trust Fund, Civil Application No. 93 of 2015 (unreported). He then faulted the trial Judge for determining the preliminary objection on the principle of res-judicata that the same was not a pure point of law but facts. To justify his arguement, he referred us to page 99 of the record of appeal where the learned trial Judge observed that, "..the plaintiff did not exhibit to this court any ruling, Judgment or order of the High Court which quashed the judgment in Civil Case No. 17 of 2009.” He then argued that the trial Judge’s observation is @ clear indication that the preliminary objection raised was not on pure point of law as the appellant was required to lead facts to prove the same. Based on his argument he prayed the Court to allow the appeal, quash andset aside the dismissal order issued by the learned trial judge and remit the matter to the High Court for hearing before another judge. In response, Prof. Binamungu also prayed to adopt his written submissions and argued that the principle of res judicata was properly invoked by the trial Judge as all prerequisite for its application were met. Clarifying on the issue whether parties were the same in the two suits, Prof. Binamungu argued that, the first, second and third respondents who were sued in Commercial Case No. 131 of 2014 in their individual capacities were the former leaders of the fourth respondent and were fully involved in Civil Case No. 17 of 2009 as witnesses, hence are privies to the fourth respondent. He challenged the issue of identity and status of the parties argued by Mr. Majembe. He equally distinguished the case of The Registered Trustees of Chama Cha Mapinduzi (supra) that is not applicable in this case because in that case the Registered Trustees could not be treated on the same identity and status with the Naibu Katibu Mkuu who could not own property for the CCM, while in the case at hand, the fourth respondent was sued as a body corporate and the first, second and third respondents were involved as her leaders and top officials. To clarify further on this point, Prof. Binamungu referred us to pages 42 and 59 ofthe record of appeal where the first and second respondents were signatories to the said agreement in their positions as chairperson and secretary of the fourth respondent's Board, respectively. In relation to the subject matter and the claim by Mr. Majember that it was not possible for the learned Judge to discern the subject matters in the two suits at the ‘stage of considering a preliminary objection, Prof. Binamungu vehemently argued that issues and subject matter in a suit are determined based on the parties’ pleadings. He argued further that, at the stage of determining the preliminary objection, the pleadings for both parties were before the learned Judge and he could easily realize that parties were litigating under the same title and subject matter. On the second issue, Prof. Binamungu challenged the submission by Mr. Majembe and argued that the point of objection raised by the fourth respondent was a pure point of law which could have been determined by the learned Judge upon taking of judicial notice of the existence of a court's decision. He distinguished the case of Mukisa Biscuits cited by Mr. Majembe that is not applicable in this case because no evidence was required to determine the point raised by the fourth respondent before the7 High Court. On the basis of his submissions, Prof. Binamungu urged us to dismiss the entire appeal with costs. On their part, the first, second and third respondents supported the appeal and like Mr. Majembe, they all urged us to allow the appeal, quash and set aside the dismissal order issued by the learned trial Judge and remit the matter to the High Court for hearing of the matter afresh before another Judge. In rejoinder, Mr. Majembe reiterated what he submitted earlier and added that at the time of instituting the suit the first, second and third respondents were no longer leaders of the fourth respondent and that is why the appellant decided to sue them on their individual capacities. He then insisted that the appeal be allowed with costs. We have closely considered the rival submissions made by the parties and as our starting point, we think Prof. Binamungu is correct in submitting that the principle of res judicata was properly applied by the learned trial judge. It is common knowledge that the objective behind the principle of res judicata is to bar multiplicity of suits thereby guaranteeing finality to litigation. The principle of res-judicata in our law is provided for 10under section 9 of the CPC cited to us by Mr. Majembe. The said section provides that:- “Wo court shall try any suit or issue in which the matter directly and Substantially in issue has been directly and substantially in issue in a former suit between the same Parties or between parties under whom they are or any of them claim litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.” [Emphasis added]. The ingredients of the doctrine of res judicata emanating from the above section were discussed in Peniel Lotta v. Gabriel Tanaki and 2 Others, Civil Appeal No. 61 of 1999 (unreported) where the Court enumerated five conditions which, when co-existent will bar a subsequent suit, thus:- 1) The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; 2) The former suit must have been between the same parties or Ptivies claiming under them; 3) The parties must have litigated under the same title in the former suit; n4) The court which decided the former suit must have been competent to try the suit; and 5) The matter in issue must have been heard and finally decided in the former suit. On the basis of the above authority, the plea of res-judicata can only be established by perusing copies of pleadings and decisions made and Pronounced by court(s) in previous case(s). Therefore, the next question is whether the principle of res judicata was properly applied in this matter. As hinted above, in both suits i.e Civil Case No. 17 of 2009 and Commercial Case No. 131 of 2014 the central issue was the breach of agreement which was a subject of the suit in Civil Suit No. 17 of 2009 against the fourth respondent and later a Commercial Case No. 131 of 2014 against the first, second and third respondents. It is on record that all these parties were involved in the two suits in different capacities. We are mindful of the fact that in his attempt to explain the distinction between the two suits, Mr. Majembe relied on the authority in The Registered Trustees of Chama Cha Mapinduzi (supra) and argued that the parties in the two suits were different because in the former suit the appellant sued the fourth respondent in her corporate 12identity while in the subsequent suit he sued the first, second and third respondents in their individual capacitates, hence different parties. With respect, we are unable to agree with Mr. Majembe on this point and we find the case he relied upon to be distinguishable with the facts of the current appeal. In that case the main issue was on the legal personality of the litigating parties where the Registered Trustees could not be treated on the same status with the Naibu Katibu Mkuu who was neither a natural person nor a body corporate possessed of powers to sue or to be sued or own property for the Chama cha Mapinduzi, while in the case at hand, the fourth respondent, a legal entity was sued in Civil Case No. 17 of 2009 and the first, second and third respondents were involved as leaders who negotiated and signed the agreement on her behalf and fully involved in the proceedings, hence privies of the fourth respondent. Though we are in agreement with Mr. Majembe that in Commercial Case No. 131 of 2014 the fourth respondent was not sued as a defendant, we hold that the same does not derogate from the fact that in Civil Case No. 17 of 2009 she was sued by the appellant as a defendant for the same reliefs under the same agreement. It is our considered view that, if the appellant was aggrieved by the decision of the High Court in Civil Appeal 13No. 133 of 2011 ought to have appealed against that decision but not to lodge a fresh suit on the same subject matter by merely suing the first, second and third respondent who negotiated and signed the agreement in question. We as well find the case of Hasnain M. Murji (supra) relied by Mr. Majembe on this aspect to be distinguishable with the case at hand because in that case the third parties all along were impleaded as third Parties and not parties to the case, while in the case at hand the fourth respondent was a party to Civil Case No. 17 of 2009. It is also on record that in both suits the appellant’s claims were based on the alleged breach of the agreement by the fourth respondent and the main reliefs sought, among others is for the payment of TZS 77,580,000.00 being the total costs for the UREA bags supplied to the fourth respondent. The judgement and decree of the Resident Magistrate Court in Civil Case No. 17 of 2009 and the appellant's plaint in Commercial Gse No. 131 of 2014 found at pages 59 to 67 and 8 to 14 of the record of appeal supports the above contention. Thus, the subject matter directly and substantially in issue in the former suit was also directly and substantially in issue in the subsequent suit as correctly observed by the learned trial Judge at page 99 of the record of appeal that:- 14“It is therefore my findin 5, based on the judgment of Morogoro Resident Magistrate Court in Civil Case No. 17 of 2009 and the Plaint in Commercial Case No. 131 of 2014 that, the subject matter in both Suits is the same being a claim of TZS 77,880,000/= originating from the supply of fertilizers to the cooperative society on the basis of the contract signed by the first and second defendants,” In our considered view, since the agreement which was the centre of the dispute was between the appellant and the fourth respondent, there was no way Commercial Case No. 131 could have been tried without involving the fourth respondent and re-opening reliefs which were already conclusively and finally determined in Civil Case No. 17 of 2009 and Civil Appeal No. 133 of 2011. In the case of Umoja Garage v. NBC Holding Corporation [2003] T.L.R.339, this Court when considering a similar matter held that:- "Since by the time the Previous suit was filed the facts giving rise to the cause of action in the subsequent suit were known to the appellant, the matter raised in the subsequent case are deemed to have been a matter, directly and substantially in 15issue in the previous case and the principle of res judicata applies.” We subscribe to the above position as it reflects a correct legal position in the context of the matter under scrutiny. In our further view, the filing of the Commercial Case No. 131 of 2014 was an abuse of court Process because at that time the appellant was aware of the outcome of the decisions in Civil Case No. 17 of 2009 and Civil Appeal No. 133 of 2011. We are mindful of the fact that in his oral submissions, Mr. Majembe argued that after the decision in Civil Appeal No. 133 of 2011, parties reverted into their original position and were at liberty to instituting a fresh. With respect, we find this line of argument is a misconception of both law and facts because reverting to their original position does not erase the fact that claims of the said parties in respect of the said agreement were conclusively and finally determined by courts of competent jurisdiction. The second issue is straight forward and should not detain us because as eloquently argued by Prof. Binamungu, since documents involved were court's documents the learned trial Judge was entitled: to take judicial notice of the same without parties’ proof. We thus find the argument by Mr. Majembe on this point to be misconceived. 16In Wem af he above, we find the entire appeal to be devoid of merit and it is Sewaty Gisessed with costs. DETED = DAR ES SALAAM this 3" day of April, 2020. R. E. S. MZIRAY JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL R. J. KEREFU ISTICE OF APPEAL The Judgment delivered this 6" day of April, 2020 in the presence of Mr. Elibariki Zakaria, holding brief for Mr. Nduruma Majembe, learned Counsel for the Appellant and in presence of 2™ Respondent and in absence of 1* and 3" Respondents and in presence of Mr. Shaaban Marijan holding brief Cyriacus Binamungu, learned Counsel for the 4 Respondent is hereby certified as a true copy of the original. ma DEPUTY REGISTRAR COURT OF APPEAL