Msumi J: A
What are for determination in this ruling are the preliminary issues raised by the defendants in their Written Statement of Defence on the competence of the suit filed by the plaintiff. First defendant raised three issues but in the course of his submission, his counsel apparently conceded that two of these issues, which are B that the suit is time barred and that the suit immovable property has not been sufficiently described in the plaint as required under the provisions of Ord 7 Rule 3 of the Civil Procedure Code, were not sustainable. The remaining issue which has also been raised by the other defendants is that the suit is res judicata. It is argued C that prior to this case, plaintiff had filed a suit in this court as Civil Case No 126 of 1986 in which he claimed against the first defendant reliefs similar to those claimed in the present case. The said case was dismissed for plaintiff's failure to adduce evidence in its support. It was an ex-parte decision. D
In reply the learned counsel for the plaintiff contends that the doctrine of res judicata does not apply to a case decided ex-parte because it cannot be said that consequent to such ex-parte judgment the suit has been finally determined. Expectedly the learned counsel could not cite any authority in support of his argument. On the contrary the law is not in harmony with the learned counsel's argument. Just to mention one authority, Mulla on Code of Civil Procedure, vol I 4th ed at 87 says: E
`Ex-parte decrees operate to render the matter decided res judicata, and the defendant's F failure to appear will not deprive the plaintiff of the full benefit of his decree. But in the case of a suit in which a decree is ex-parte, the only matter that can be directly and substantially in issue is the matter in respect of which relief has been claimed by the plaintiff in the plaint. A matter in respect of which no relief is claimed cannot be directly and substantially issue in a suit in which a decree is passed ex-parte though the court may have gone out its way and declare the plaintiff to be entitled to relief in respect of such matter.' (emphasis supplied). G
In the previous case, plaintiff prayed for the following two specific reliefs: H
1. A declatory order confirming the plaintiff as the true and lawful owner of the suit premises viz plot No 61744 Kurasini, Dar es Salaam.
2. A permanent injunction restraining/preventing the defendant from trespassing into the suit premises. I
A These prayers are exactly the same as those pleaded by the plaintiff in his plaint in the present case. This means that the matter which is directly and substantially in issue in both cases is the same and that the said matter has been finally determined by the ex-parte judgment issued in the previous case. In other words the doctrine of res judicata is operative in this case. B
In conclusion the preliminary objection that the suit is res judicata is upheld hence the said suit is dismissed with costs.
1997 TLR p160
