Ester Ignas Luambano versus Adriano Gedam Kipalile; Civil Appeal No 91 of 2014: Court of Appeal of Tanzania at Zanzibar (Unreported)
- Civil Procedure
- Res judicata – In matrimonial suit, the court ordered division of matrimonial property – The wife filed another suit to claim property that was not mentioned in the earlier suit- whether Res judicata applies?
Held:-
(i) The test whether or not a suit is barred by res judicata is that, is the plaintiff in the second suit trying to bring before the court in another way and in the form of a new cause of action, a transaction which he has already put before a court of competent jurisdiction in earlier proceedings and which has been adjudicated upon?. If so the plea of res judicata applies not only to points upon which the first court was actually required to adjudicate but to every point which properly belonged to the subject matter of litigation and which the parties exercising reasonable diligence, might have brought forward at the time. The subject matter in the subsequent suit must be covered by the previous suit, for res judicata to apply.
(ii) The objective and public policy behind the doctrine of res judicata is to ensure finality of litigation.
(iii) The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings.