Wengert Windrose Safaris (Tanzania) Limited versus The Minister for Natural Resources and Tourism and Another; Misc Commercial Cause No 89 of 2016: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Civil Procedure
- Res Sub judice – what are the essential conditions upon which section 8 of the Civil Procedure Code applies?
Held:-
There are four essential Conditions upon which section 8 of the Civil Procedure Code applies (Res subjudice). There are -:
(a) That the matter in issue in the second suit is also directly and substantially in issue in the first suit. Since the commonality of sections 8 and 9 of the Civil Procedure Code is that they both bar continuation of a suit which is directly and substantially in issue with either a previously filed suit or previously filed and determined suit, in looking at what can be considered as directly and substantially in issue under section 8, reference can be made at explanation IV at section 9.
The substantiality and directness of the suit is not to be determined on the basis of the remedies sought in either of the suit but on the subject matter or key issues in both suits where elements of defence or claim are identical in both matters, the same will be held to be directly and substantially in issue and, therefore, the doctrine of res sub judice will operate.
(b) That the parties in the second suit are the same or parties under whom they or any of them claim litigating under the same title. A mere fact that some parties are added or reduced in the subsequent suit will not take the case out of the operation of res judicate / res sub judice if the other conditions of the section are satisfied. If the additional defendants in the subsequent suit do not raise any separate or substantial issue as between them and the plaintiff in the subsequent suit, the additional of such defendants does not make the subsequent any less a suit between the same parties. The expression ‘the same parties’ means the parties between whom the matter substantially in issue has arisen and also has to be decided. The section does not become inapplicable by reason of there being a party against whom no separate and substantial issue is raised (Quoted with approval Mulla the Code of Civil Procedure (18th edition 2011))
(c) That the court in which the first suit is instituted is competent to grant the reliefs claimed in the subsequent suit; and
(d) That the previously instituted suit is pending (Quoted Sarkar Code of Civil Procedure (11th edition at p.93)