Omar Mtalika vs ETS Maurel Et Prom (Civil Appeal No. 16 of 2023) [2025] TZCA 820 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA. J.A.. KENTE. J.A.. And MANSOOR. J.A.1 CIVIL APPEAL NO. 16 OF 2023 OMAR MTALIKA ............................................................................. APPELLANT VERSUS ETS MAUREL ET PROM............................................................. RESPONDENT (Appeal from the Ruling of the High Court of Tanzania at Dar es Salaam) (Kakolaki, J.) dated the 4th day of September, 2020 in Civil Case No. 178 of 2019 JUDGMENT OF THE COURT 21st July & 7th August, 2025 NDIKA. J.A.: The appellant, Omar Mtalika, contests the ruling of the High Court of Tanzania at Dar es Salaam, which dismissed his claim against the respondent, ETS Maurel Et Prom. The court upheld the respondent's preliminary objection, asserting that the appellant's action was resjudicata. The respondent, a Tanzanian branch of a Paris-based oil and gas exploration and production multinational corporation, employed the appellant as an accountant on 31s t January 2008. In October 2014, the respondent filed a criminal complaint at Oysterbay Police Station in Dar es Salaam, alleging that the appellant had embezzled company funds. The complaint led to the initiation of criminal proceedings against the appellant i

under Criminal Case No. 275 of 2015, in the Resident Magistrate's Court of Kinondoni. Following his acquittal, the appellant commenced a lawsuit against the respondent in the Resident Magistrate's Court of Dar es Salaam at Kisutu, henceforth the RM's Court, for malicious prosecution, namely Civil Case No. 105 of 2018, demanding, among other claims, TZS. 300.000.000.00 in special damages. The respondent contested the court's jurisdiction, asserting that it lacked the pecuniary authority to adjudicate the case. Upon reviewing the arguments presented, the court upheld the challenge, determining that its authority, as stipulated in section 40 (2) (b) of the Magistrates' Courts Act, Cap. 11, was limited to TZS. 200.000.000.00, and that the appellant's claim exceeded this jurisdictional threshold. The court ultimately dismissed the lawsuit with costs. Later in this judgment, we will discuss whether that disposition was proper. With unwavering determination, the appellant instituted a comparable claim in the High Court of Tanzania at Dar es Salaam vide Civil Case No. 178 of 2019, seeking, among other things, a sum of TZS. 300.000.000.00 in special damages and TZS. 400,000,000.00 in general damages. Once again, the respondent raised a preliminary objection, contending that the lawsuit was res judicata in terms of section 9 of the

Civil Procedure Code, Cap. 33, Revised Edition 2002, henceforth "the CPC." That the identical cause of action could not be relitigated between the same parties, since it had been definitively adjudicated by the RM's Court. We should interpose here and remark that in terms of the current revised edition of our laws issued in 2023 that took effect on 1s t July, 2025, the said doctrine, with a slight change of its wording, is now covered by section 11 of the CPC following the renumbering of certain provisions in that law. After considering the opposing arguments of the parties regarding the issue, the learned High Court judge concluded that the dismissal of the action by the RM's Court represented a definitive resolution of the suit, even though the matter had not been adjudicated on its merits. He maintained that the action could not be refiled or relitigated given that the appellant failed or neglected to challenge the dismissal through appeal or revision. To elucidate the matter, we extract the pertinent section of the ruling as follows: "Since no action was taken by the plaintiff [the appellant herein] then the decision o f the lower court remained valid. This court [finds], therefore, that the plaintiff cannot file a fresh suit unless and until the dismissal order in Civil Case No. 105 o f 2018 is vacated. The present matter is res judicata".

The appellant, dissatisfied with the above conclusion, has appealed to this Court, contending that the High Court erroneously determined that the claim was resjudicata . The parties, in their written submissions on this appeal, recognised that section 9 of the CPC establishes the doctrine of resjudicata prohibiting re-litigation of an identical action between the same parties that was definitively resolved by a court of competent jurisdiction. At the time material to this case, this provision was worded thus: "No 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 or any o f 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". As articulated in Peniel Lotta v. Gabriel Tanaki & Two Others [2003] T.L.R. 312, the purpose of the doctrine is to prevent the proliferation of lawsuits and ensure the finality of litigation, as it renders a final judgment by a court of competent jurisdiction conclusive between the same parties or their privies on the identical action or issue. We 4

emphasised in that case that res judicata can only preclude a subsequent suit if the following requirements are met: "(i) the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; (ii) the former suit must have been between the same parties or privies claiming under them; (Hi) the parties must have litigated under the same title in the former suit; (iv) the court which decided the former suit must have been competent to try the subsequent suit; and (v) the matter in issue must have been heard and finally decided in the former suit". In our considered view, the issues in the prior litigation are directly and substantially analogous to those in the current suit, the partiesin both cases are identical, and the title under which they sued in the previous action is unchanged. Consequently, it is established that the first three preconditions, as listed above, coexist in this case. Although it was evident that the RM's Court lacked the pecuniary authority to adjudicate the prior suit, it is rather baffling that the High Court did not regard this fact as decisive in disapplying the doctrine of res judicata to the present instance. The High Court focused on the impact of the alleged "dismissal" of the prior litigation on the current case. It overlooked the fourth prerequisite stated above, which requires that the 5

former case must have been adjudicated by a court with the authority to hear the subsequent lawsuit. Since the RM's Court lacks pecuniary jurisdiction to adjudicate the current matter, its ruling in the prior case cannot have any resjudicata effect in this lawsuit. Regarding the fifth precondition, Mr. Athanas Wigan, learned counsel for the respondent, endorses the High Court's reasoning and conclusion that the dismissal of the prior lawsuit by the RM's Court represented a definitive resolution of the issue, precluding the consideration of the current action. Like the learned High Court judge, he bases his argument on a holding in this Court's ruling in Olam Uganda Limited Suing Through Its Attorney United Youth Shipping Company limited v. Tanzania Harbours Authority [2007] TZCA 314 thus: "In our considered opinion then, the dismissal amounted to a conclusive determination o f the suit by the High Court as it was found to be not legally sustainable. The appellant cannot refile another suit against the respondent based on the same cause action unless and until the dismissal order has been vacated either on review by the same court or on appeal or revision...." Conversely, the appellant asserts that although the term "dismissal" implies that a matter has been adjudicated on its merits, in this instance, there was no adjudication on the merits since the RM's Court lacked the 6

jurisdiction to hear and resolve the case. He therefore implores us to ascertain and maintain that the prior lawsuit was not definitively adjudicated. We believe it is essential, at this juncture, to contextualise our decision in Olam Uganda {supra). This Court examined in that decision the implications of a dismissal order under section 3 (1) of the Law of Limitation Act, Cap. 89 on the ground of limitation. This provision stipulates that any proceeding initiated after the designated limitation period has expired "shall be dismissed whether or not limitation has been set up as a defence. "The Court maintained that such dismissal constituted a definitive resolution of the case. Since the RM's Court did not "dismiss" the appellant's suit due to limitation but rather due to lack of pecuniary jurisdiction, Olam Uganda {supra) is inapplicable and cannot be compared to this case. What we find pertinent to this matter is the decision of the Court of Appeal for East Africa in Ngoni-Matengo Cooperative Marketing Union Ltd. v. Alimahomed Osman [1959] EA 577 wherein the court distinguished between the terms "dismissal" and "striking out" of cases, and implicitly held, in particular, that a matter beyond any court's jurisdiction is to be struck out rather than dismissed. To ensure clarity, we delineate the pertinent portion of the decision as follows: 7

"...This court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a property constituted appeal at all. What this court ought strictly to have done in each case was to ! strike out' the appeal as being incompetent/ rather than to have \dismissed' it; for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies that there was no proper appeal capable of being disposed of. But it is the substance o f the matter that must be looked at, rather than the words used... [Emphasis added] See also Hashim Madongo & Two Others v. Minister forIndustry and Trade & Two Others [2007] TZCA 198; Peter Ng'homango v. Attorney General [2012] TZCA 392; and Mustafa Fidahussein Esmail v. Dr. Posanyi Jumah Madati, Civil Appeal No. 43 of 2003 (unreported). Instead of dismissing the claim, the RM's Court ought to have struck it out since it lacked the pecuniary authority to try and decide it. Stated differently, the court could not issue any dismissal order against the action as it was unable to adjudicate it on the merits. In our view, the learned High Court judge erred by focussing on the phrasing of the order-its characterisation as a dismissal order-rather than its substance. It is clear 8

that a court without jurisdiction over a matter cannot adjudicate it on the merits to ultimately impose a dismissal. Based on our view that the lawsuit was wrongly adjudged res judicata, we find merit in the appeal and hereby allow it. Accordingly, we quash the High Court's ruling, set aside the order striking out the suit, and remit the trial record to the High Court for the claim to proceed in accordance with the law. Costs shall follow the event in the suit. DATED at DAR ES SALAAM this 6th day of August, 2025. The Judgment delivered this 7th day of August, 2025 in the presence of Mr. Daniel Mzuka and Nasra Omar, a relative and a daughter of the Appellant and Mr. Athanas Wigan, learned counsel for the respondent, is I 1 1 G. A. M. NDIKA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL