Court name
High Court of Tanzania

George Shambwe vs Tanzania Italian Petroleum Co. Ltd. () [1994] TZHC 9 (21 July 1994);

Law report citations
1995 TLR 20 (TZHC)
Media neutral citation
[1994] TZHC 9
Coram
Chua, J.

Chua, J.: B
A preliminary objection has been raised to the claim filed in this court on the basis that the matter is res judicata. It was contended by counsel for the defendants that the matter directly and substantially in issue in the present suit was directly and substantially in issue to RM Civil Case No 114 of 1988. C
From copies of the ex-parte judgment and decree passed in RM Civil Case No 114 of 1988 it is clear that judgment was entered in the following terms 'I grant all the prayers prayed in the plaint by the plaintiff'. A copy of the decree reads: D
   'The applicant plaintiff having filed this suit praying for
   (a)   A declaration that he is still an employee of the defendant,
   (b)   The plaintiff should continue to occupy the house at Kanazi Street Kinondoni. E
   (c)   Costs
   (d)   Any other relief.
   Having heard the plaintiff ex-parte and now this suit coming for final disposal before me it is hereby ordered and decreed that I am satisfied that the plaintiff has proved his case as required by law. In the circumstances I grant all the prayers prayed in the plaint by the plaintiff'. F
In the present suit the plaintiff is claiming Shs 6,122,402/= being arrears of salary and fringe benefits plus Shs 20,000,000/= being general damages. The decision of G the RM's Court in RM Civil Case No 114 of 1988 does not decide this claim.
It was submitted by counsel for the defendant that paras 3, 4 and 5 of the plaint contravene Order VII rule 2 of the CPC and should therefore be struck off. It has not, however, been shown how Order VII rule 2 has been contravened for the rule prescribes: H
   Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed:
   Provided that where the plaintiff sues for mesne profits or for an amount which will be found due to him on taking unsettled I

A    accounts between him and the defendant, the plaint shall state approximately the amount sued for.
In the present case the plaintiff has stated the amounts he is claiming and how he B arrived at those figures is a matter of evidence. Also by providing further and better particulars the defendant will be in a position to know exactly what is being claimed in terms of salaries and various types of fringe benefits.
Finally it was submitted that the suit was barred by limitation. Mr Somgalawe for the plaintiff countered this argument by asserting that this is a suit based on C judgment and therefore under s 6(c) of the Law of Limitation Act the right of action accrued on the date the judgment was delivered which in this case was 23 May 1989. Under the 1st Schedule, item 16 of the Law of Limitation Act the period allowed for such suits is twelve years. I agree with the observations of Mr Somgalawe regarding limitation.
D I should reiterate that for res judicata to apply not only must it be shown that the matter directly and substantially in issue in the contemplated suit is the same as that involved in a former suit between the same parties, but it must also be shown that the matter was finally heard and determined by a competent court. In this case, though it was argued that in the lower court the plaintiff had tried to obtain E the sum of Shs 6,122,402/= in the course of executing the decree of the court, there was no evidence to show that the issue as to how that sum was arrived at F was heard and finally determined before the decree of the court was drawn up. In my view therefore res judicata is not applicable in this case and for reasons already spelled out the other points raised are rejected. The suit should proceed for trial but before the next hearing date the plaintiff must amend the plaint so that he indicates clearly how much he is claiming under the different categories of employment rights and fringe benefits. G

A