MZUMBE UNIVERSITY

(MBEYA CAMPUS)
FACULTY OF LAW
SUBJECT: CIVIL PROCEDURE LAW
CODE: LAW 324
COURSE: L.L.B. III
NATURE OF WORK: GROUP ASSIGNMENT
PARTCIPANTS: GROUP 6
KABAGIRE LILIAN

960/T.08

KAKIZIBA JOHNSON

965/T.08

ELIAMINI MTENGETI

1085/T.08

BAKARI MWANAKOMBO

912/T.08

NGOITIAMA HERRY

1121/T.08

LYARUU KESTER

1006/T.08

BATEYUNGA KELVIN

918/T.08

METHOD MAGHALI

1014/T.08

EISTERN ALEXANDER

908/T.08

AYUBU HERRY

911/T.08

MAZIGI JANETH

1042/T.08

KAYINGA SIMON J.

974/T.08

KALENGA EMILY

966/T.08

ELIUD GOODLUCK

936/T.08

PAZI MWANAHAMISI

1135/T.08

KUNJUMU PAULINA

1000/T.08

QUESTION: What is the rationale behind the civil procedure law to invent the doctrine of res
Judicata?

OUTLINE
1.0 INTRODUCTION
MEANING OF RES JUDICATA
2.0 MAIN BODY
2.1 HISTORICAL BACKGROUND OF RES JUDICATA.
2.2 ESSENTIAL ELEMENTS OF RES JUDICATA.
2.3 APPLICATION OF RES JUDICATA IN COMMON LAW
2.4 RATIONALE FOR THE DOCTRINE OF RES JUDICATA
3.0 CONCLUSION
BIBLIOGRAPHY

INTRODUCTION:
Res Judicata or res iudicata is the Latin term for "a matter already judged", and may refer to
two things: in both civil law and common law legal systems, a case in which there has been a
final judgment and is no longer subject to appeal1. In the doctrine of Res Judicata, the matter
cannot be raised again, either in the same court or in a different court. A court will use Res
Judicata to deny reconsideration of a matter2.
When res Judicata is invoked, it means that a case cannot be appealed or tried again in new
courts. Because the appeals process is an important part of many legal systems, there are
therefore a number of criteria which are considered before a judge decides to invoke res Judicata.
As a general rule, it must be proved that a verdict in the exact same case has already been
obtained in a qualified court. In the event that a case is tried again because those involved were
unaware that it had already been to court, the most recent verdict is typically considered to be the
binding one3.
HISTORICAL BACKGROUND OF RES JUDICATA.
The rule of res Judicata has a very ancient history. Under the Roman law it was recognized that
one suit and one decision was enough for any single decision. The doctrine was accepted in the
European continent and in the common wealth countries.
At times this rule worked harshly on individuals, for instance, when the former decision was
obviously erroneous. But its working was justified on the great principle of public policy, which
requires that there must be an end to every litigation. In the event of a wrong decision the
suffering citizen must appeal to the law giver and not to the lawyer 4. This historical background
can also be traced in the case of Garlanf v. Carlasle5

http://www.wordnet.princeton.edu/perl/webwn
http://www.brandonlclark.com/glossary.html?letter=R
3
http://www.wisegeek.com/what-is-res-judicata.htm
4
C.K Takwani, Civil Procedure pg 57
5
4 CI & F 693.
2

ESSENTIAL ELEMENTS OF RES JUDICATA.

In the case of George Shambwe v. Tanzania Italian Petroleum Co. Ltd (TIPA)6, the court
laid down three requirements for res Judicata to apply. It was explained that:

The matter in two cases are directly and substantially in issue.

The contemplated suit is the same as that involved in a former suit between the
same parties.

The matter in the previous suit was finally held and determined by a competent
court.

A close examination of Section 9 of the civil procedure code Act reveals the following essential
elements of the doctrine of res Judicata.

That the judicial decision was pronounced by a court of competent jurisdiction.

For a plea of res Judicata to succeed, one of the essential elements is that there has been a
judicial decision duly pronounced by a court of competent jurisdiction. Jurisdiction here means
jurisdiction in every respect to make the decision in respect of subject matter of the parties
thereto. So long as the decision was pronounced by a court of competent jurisdiction, and so long
as such decision has not been reversed or altered on appeal, it operates as res Judicata. In the case
of Karshe v Uganda Transport Co.7 It was held that, once a decision has been given by a court
of competent jurisdiction between two persons over the same subject matter, neither of the
parties would be allowed to re-litigate the issue again or to deny that that decision had in fact
been given, subject to certain conditions.

6
7

(1995) TLR 20
{1967} EA 774

That the subject matter and the issues decided are the same or substantially the same as the
issues in the subsequent suit.
The subject matter pleaded in the subsequent suit should be the same or substantially the same as
that decided in the former suit. In other words it must be shown that the course of action and the
issues in the subsequent suit were alleged by one party and either denied or admitted, expressly
or impliedly by the other. Explanation III to Section 9 of The Civil Procedure Code8 provides
that the matter is said to be directly and substantially the same if the issue in the suit was alleged
by one party and denied by the other. The court shall take the following considerations under the
Section. Under this condition res Judicata operates were the decision of the issue was on merit
and not on technicalities. In the case of Kerehandi V Jani Mohammed9 it was held that matters
which have been decided on preliminary objections cant operate as res Judicata. Because
matters on preliminary objections are normally matters based on technicalities.
That the judicial decision was final
It must be shown that the decision finally decided the matters in dispute. The decision must be on
the merits and it must be clear that the parties were heard pr given an opportunity to be heard
before the decision on merit was pronounced 10. If a suit is dismissed on a preliminary point,
which does not finally decide the rights and liabilities of the parties, then the plaintiff cannot be
said to have heard on the merits, and so a subsequent suit is not res Judicata. This was stated in
the case of Bhagwasti V Ram Kali11
That it was in respect of the same parties litigating under the same title.
.It is an essential element of the doctrine of res Judicata that it must be shown that the former suit
was between the same parties or their privies and litigating under the same title. A judgment
cannot operate as res Judicata to complete strangers. In the case of Village Chairman KCU
Mateka v. Antoni Ihela12 the court stated that one of the conditions for successfully invocation

opcit

1919-1921 E.A.P.L.R 69
Chipeta B.D., Civil Procedure in Tanzania: A Students Manual, pg 20 and 21
11
(AIR) 1939 P.C 133
12
(1988) TLR 188
10

of the pleas of res Judicata is that the parties in the previous suit must be the same as the
subsequent suit.
Res Judicata is intended to strike a balance between competing interests. On one hand, it assures
an efficient judicial system13.
In the case of Christopher R. Shafer, Sr. V. Elizabeth Rios, Et Al.14 It was explained that, the
doctrine of Res Judicata applies provides that a cause of action between parties that has been
finally determined on the merits by a tribunal having jurisdiction cannot be relitigated by those
parties or their privies in a new proceeding. The same was explained in the case of Velasquez
V. Franz15.

Res Judicata is provided for under Section 9of the Civil Procedure Code Act16 . It provides
that:
No court shall try any suit or issue in which the matter directly and substantially in issue
has been directly and substantially issue in a former suit between the same parties or
between parties under whom they or any of them claim litigating under the same title in a
court competent to try such subsequent suit or the suit m which such issue has been
subsequently raised and has been heard and finally decided by such court.
Explanation I: The expression ''former suit'' shall denote a suit which has been decided
prior to the suit in question whether or not it was instituted prior thereto.
Explanation II: For the purposes of this section, the, competence of a court shall be
determined irrespective of any provisions as to a right of appeal from the decision of such
court.
Explanation III: The matter above referred to must the former suit has been alleged by
one party and either denied or admitted, expressly or impliedly, by the other.
13

Ibid
App. Div., A-1617-08T1, November 9, 2010
15
123 N.J. 498, 505, (1991)
16
CAP 33 R.E. 2002
14

Explanation IV: Any matter, which might and ought to have been made ground of
defense, or attack in such former suit, shall be deemed to have been a matter directly and
substantially in issue in such suit. Expressly granted by the decree, shall, for the purposes
of this section, be deemed to have been refused.
Explanation VI. Where persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and other, all persons interested in such
right shall, for the purposes of this section, be deemed to claim under the persons so
litigating. Jurisdiction of courts Res Judicata
Explanation V: Any relief claimed in the plaint, which is not expressly granted by the
decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI. Where persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and other, all persons interested in such
right shall, for the purposes of this section, be deemed to claim under the persons so
litigating.17

APPLICATION OF RES JUDICATA IN COMMON LAW

The principle of Res Judicata may be used either by a judge or a defendant. Once a final
judgment has been handed down in a lawsuit, subsequent judges who are confronted with a suit
that is identical to or substantially the same as the earlier one will apply the res Judicata doctrine
to preserve the effect of the first judgment18.
A defendant in a lawsuit may use Res Judicata as defense. The general rule is that a plaintiff
who prosecuted an action against a defendant and obtained a valid final judgment is not able to
initiate another action vs. the same defendant where:

the claim is based on the same transaction that was at issue in the first action;

17

28 No. 49 Civil Procedure Code, 1966 1966

18

file:///C:/Documents%20and%20Settings/user/My%20Documents/res-judicata.htm

The plaintiff seeks a different remedy, or further remedy, than what was obtained in the
first action; the claim is of such nature as could have been joined in the first action.

RATIONALE FOR THE DOCTRINE OF RES JUDICATA

The legal concept of Res Judicata arose as a method of preventing injustice to the parties of a
case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the
court system. Res Judicata does not merely prevent future judgments from contradicting earlier
ones, but also prevents litigants from multiplying judgments, so a prevailing plaintiff could not
recover damages from the defendant twice for the same injury19.
Justice Stewart in the case Allen v. McCurry20, of explained the need for this legal precept as
follows:
Federal courts have traditionally adhered to the related doctrines of res Judicata (claim
preclusion) and collateral estoppel (issue preclusion). Under RJ, a final judgment on the
merits of an action precludes the parties . . . from re-litigating issues that were or could
have been raised in that action. Under collateral estoppel, once a court has decided an
issue of fact or law necessary to its judgment, that decision may preclude re-litigation of
the issue in a suit on a different cause of action involving a party to the first cause. As this
court and other courts have often recognized, res Judicata and collateral estoppel relieve
parties of the costs and vexation of multiple lawsuits, conserve judicial resources, and by
preventing inconsistent decisions, encourage reliance on adjudication.
It says that once a matter is finally decided by a competent court no party can be permitted to
reopen it in a subsequent litigation. In the absence of such a rule there will be no end of litigation
and the parties would be put to constant trouble, harassment and expenses.21

19

http://en.wikipedia.org/wiki/Res_judicata
449 U.S. 90
21
Satyadhyan Ghosal v. deorajin Debi AIR 1960 Nag 132, Supreme Court Employees , Welfare Assn v.
Union of India (1989) 4 SCC 187: AIR 1990 SC 334
20

Also in East Africa the doctrine acts as an estoppels to such parties to relitigate those same
matters in any subsequent suit because the doctrine apart from binding the parties as to the matter
decided, also put to an end a particular cause of action on which the former litigation between
parties was founded as it was elaborated in the case of Karshe v. Uganda Transport Co22
In the case of Satyadhyan Ghosal v. deorajin Debi 23 Das Gupta J, explained the doctrine of res
Judicata as follows;
The principle is based on the need of giving of finality to judicial decisions. What it says is that,
once a res Judicata, it shall not be adjudged again. Primarily it applies as between part to
litigation and future litigation. When a matter whether on question of fact or question of law has
been decided between parties in one suit or proceeding and the decision is final, either because
no appeal is taken to the higher court or because the appeal was dismissed or no appeal lies,
neither party will be allowed in the future suit or proceeding between the same parties.
Interest rei publicae ut sit finis litium this is another rationale in a Latin maxim which means
the interest of the general public requires that there must be an end to litigation 24. This maxim is
justified by the general interest of the community in the termination of dispute, and in the finality
and conclusiveness of judicial decision G.R. MandavIa v. Rattan Singh 25
Also the maxim of Nemo debet bis vecali, constat curiae quod sit pro una et eadem causa, is
another rationale in a Lain way which means no man should be twice sued or prosecuted upon
one and the same set of facts, if they has been a final decision of a competent court. It is the right
of individual to be protected from vexacious multiplication of suit prosecutions at the instance of
an opponent whose superior wealth, resources and power may, unless curbed down by judicial
declared right and innocence. The case of New Bruswick Railway Co v. British and French
Trust Corporation Ltd26 explains more about the maxim.
Moreover the maxim of Res Judicata pro veritate occipitur is the rationale which means a
judicial decision must be accepted as correct
22

(1967) E.A 774 at page 777

supra
24
M.R.M Lamwai, Tanzania Law of Civil Procedure in a Historical Socio-Economic Context, pg 108
23

25
26

(1965) E.A 118

(1938) 4 All E.R 747

CONCLUSION:
To sum up the doctrine of res Judicata is intended to strike a balance between competing
interests. This is so because the doctrine of estoppe the parties to the suit to re-institute the same
suit which has already been determined finally by the court. On one hand, it assures an efficient
judicial system. This is achieved by the fact that the court is estopped by the doctrine to
determine the case which it has already determined by leaving the earlier decision to stand.

BIBLIOGRAPHY
STATUTES:
The Civil Procedure Code Act [CAP 33 R.E. 2002]
BOOKS:
Chipeta B.D., Civil Procedure in Tanzania: A Students Manual, Dar-es-salaam University Press
Ltd, 2002
Lamwai M.R.M, Tanzania Law of Civil Procedure in a Historical Socio-Economic Context.
Takwani C.K, Civil Procedure, 5th Edition, Eastern Book Company, 2005

WEBSITES [Accessed on 18th December 2010]

http://www.wordnet.princeton.edu/perl/webwn

http://www.brandonlclark.com/glossary.html?letter=R
http://en.wikipedia.org/wiki/Res_judicata

http://www.wisegeek.com/what-is-res-judicata.htm