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
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
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