IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT PAR ES SALAAM

CORAM: MASOUD, J., KULITA, J., AND MAS ABO, J.

MISC. CIVIL CAUSE NO. 22 OF 2019

IN THE MATTER OF THE CONSTITUTION OF THE UNITED

REPUBLIC OF TANZANIA, 1977 (AS AMENDED FROM TIME TO

TIME)

AND

IN THE MATTER OF THE BASIC RIGHTS AND DUTIES

ENFORCEMENT ACT, [CAP 3 R.E 2002]

AND

THE BASIC RIGHTS AND DUTIES ENFORCEMENT (PRACTICE

AND PROCEDURE (RULES, 2014)

AND IN THE MATTER OF A PETITION TO CHALLENGE THE

PROVISION OF SECTION 6(1) OF THE PUBLIC AUDIT ACT, NO.

11 OF 2008 AS BEING UNCONSTITUTIONAL

AND

IN THE MATTER OF A PETITION TO CHALLENGE THE

PROVISION OF SECTION 130(2)(e) OF THE PENAL CODE [CAP

16 R,E 2002] FOR BEING UNCONSTITUTIONAL

BETWEEN

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TANZANIA WOMEN LAWYERS ASSOCIATION......... PETITIONER

VERSUS

THE ATTORNEY GENERAL

REPUBLIC OF TANZANIA........................................ RESPONDENT

RULING

MASABO, J.:

The petitioner above named has moved this court by way of an

originating summons seeking for declaratory orders that the part of

section 130(2)(e) of the Penal Code [Cap 16 R.E 2019] which states

that “unless the woman is his wife who is fifteen or more years of age

and is not separated from the man” as unconstitutional for offending

the provision of articles 12(2), 13(1)(2) and 29(1) and (2) of the

Constitution, and upon being declared unconstitutional, it be

expunged from the statute. The prayers are based on the four

grounds, namely:

(i) the impugned provisions infringe on the rights to dignity of a

girl child by allowing the defence of marriage for the offence

of rape committed to a girl child aged 13-17 thus making her

vulnerable to sexual abuse in the context of marriage

(ii) that the said provision provides protection and upon being

declared unconstitutional, it be expunged from the statute.

(iii) that the section offers discriminatory protection towards a

girl child aged 14 years but failed to protect a girl child aged

15 to 17 years.

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(iv) that the said provision is unreasonable and vague for

allowing the defence of marriage for the offence of rape

committed against a girl child aged 15-17.

Upon the perusal of the petition, I found some similarities between

the matter raised herein with matters raised in Attorney General v

Rebeca Z. Gyumi, Civil Appeal No. 204 of 2017, Court of Appeal

at Dar es Salaam (unreported). In recap, the petition in Attorney

General v Rebeca Z. Gyumi, was for the declaratory orders that the

provision of sections 13 and 17 of the Law of Marriage Act, Cap 29

R.E. 2002 (herein referred as "the LMA") were unconstitutional for

being violative of articles 12, 13 and 18 of the Constitution, and a

further order expunging the two provisions from the statute. The

prayer was predicated on the grounds that the two provisions were

discriminatory in nature. They provided a different age of marriage

for boys and girls and in so doing, contravened the principle of

equality by allowing them to enter into marriage at the age of 14 (with

approval of the court) and 15 (with parental consent) while limiting

the age of marriage of boys to 18 years. The petitioner represented by

Mr. Kambole who is also representing the petitioner herein managed

to convince both, this court and the Court of Appeal, that the two

provisions were bad law in that aside from contravening the principle

of equality they were violative of the principle of minimum age of

marriage equality by allowing girls to enter marriage at their

childhood, an acts which among others, burdened them with

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complex matrimonial and conjugal obligations and exposed them to

rape.

With this background, I resolved to invite the parties to address the

court on the point of law regarding the competence of the petition. In

specific, the parties were invited to address the court on whether or

not the petition is res judicata to the decision of the Court of Appeal

in Attorney General v Rebeca Z. Gyumi, Civil Appeal No. 204 of

2017, whose facts are as stated above. In compliance, both parties

filed submissions in support and in opposition. I commend both

parties for their insightful submissions.

For the Respondent, Mr. Stanley Kalokola, learned State Attorney,

prefaced his submission with an observation that although the

principle of res judicata as provided for under section 9 of the Civil

Procedure Code [Cap 33 RE 2002] is not articulated under the Basic

Rights and Duties Act, [Cap 2 RE 2002] (BRADEA) and the Basic

Rights and Duties Enforcement [Practice and Procedure] Rules 2004

which regulate constitutional petition, its application is sanctioned

by Rule 19 of the Rules which sanctions the application of the Civil

Procedure Code Procedure Code [Cap 33 R.E 2019]. The decision of

the Court of Appeal in Attorney General V Christopher Mtikila,

Civil Appeal No. 20 of 2007, Court of Appeal of Tanzania (unreported),

was cited in support.

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On the merit, Mr. Kalokola cited the case of Gerald Chuchuba v

Rector, Itanga Seminary [2002] TLR 213 and Zanzibar Telecom

Co. Ltd v Haidary Y. Rashidi T/A Narasisa Enterprises,

Commercial Appeal No. 2 of 2009 High Court Commercial Division

(unreported) and proceeded to submit that, the res judicata principle

can only be invoked when there are two cases one of which has been

adjudicated to its final stage (no appeal or review is pending or

possible); the pending case concerns the same parties (or their

proxies) with those in the former case; the same issues are involved

in the two cases; the issues involved in the two cases are similar or

directly/substantially or constructively the same; the object in the

two cases is the same and that the former case, was determined by a

court with competent jurisdiction.

Based on these tenets he argued that, the instant petition is res

judicata to Attorney General v Rebeca Z. Gyumi because the two

cases address the question of child marriage which was finally

determined in the former case. Mr. Kalokola’s submission is to the

effect that the provision which is a subject of this application and the

provisions of sections 13 and 17 of the Law of Marriage Act, which

were declared unconstitutional in the former case, have a similar

implication, namely, sanctioning child marriage. Therefore, upon the

provision permitting child marriage been nullified, the defence under

section 130(2)(e) of the Penal Code can no longer stand. He argued

further that, the instant petition being of public interest as opposed

to individual interest, suits well under the purview of res judicata.

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because, as stated by this Court in Jebra Kambole v the Attorney

General Misc. Civil Cause No. 22 of 2018, the decision in a previous

public interest litigation is a judgment in rem., it binds the public at

large and bars other persons from instituting similar matters being

instituted in court. In view of this, he concluded that the decision in

Attorney General v Rebeca Z. Gyumi operates as a bar to this

petition because all have one purpose, namely, ending child

marriages. Thus, it should be dismissed for being res judicata.

In rebuttal, Mr. Kambole prefaced his long submission with a

background of the petition, the conceptual framework on the

principle of res judicata and its applicability in public interest

litigation. Several decisions from India were cited. I will not reproduce

them here but I will make reference to them in due course. At this

juncture it suffices to note that it was the petitioner’s submission

that the doctrine of res judicata, is as matter of principle, applicable

in public interest litigations (see Forward Construction Co. &

Others vs Prabhat Mandal AIR 391). However, there are certain

limitations to its application in public interest litigation. In his view,

which was supported by persuasive authorities from India,

todetermine whether or not to apply this principle in public interest

litigation, due regard should be accorded to the nature of the

litigation itself and its impact on the society (V. Purshotham Rao v

Union of India and others, Civil Appeal No. 3100 of 2002). Further

exception is where a judgment is passed without jurisdiction, where

the matter involved is a pure point of law and when the judgment has

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been fraudulently obtained, (see decisions of the Supreme Court of

India in V. Purushotham Rao vs Union of India & others Case No.:

Appeal (civil) 3100 of 2000 and Raju Ramsin Ramsing Vasave v

Maheshi Deorao Bhivapurharm Civil Appeal No. 5308 of 2008)

Here at home reference was made to the case of Christopher Mtikila

v Attorney General, Civil Miscellaneous Cause No. 5 of 1993 and

Christopher Mtikila v Attorney General, Civil Miscellaneous Cause

No. 10 of 2005; and Jeremiah Mtobesya versus Attorney General

Misc. Civil Cause No. 29 of 2015; and Gideon Wasonga and Others

versus Attorney General and others, Misc Civil Cause No. 14 of

2016. Using these cases, it was argued that, there is a precedent in

our jurisdiction that the principle of res judicata does not strictly

apply in public litigation and that is why, in the first two cases the

court determined a similar issue i.e the right of citizens to contest in

general election independent of any political affiliation (independent

candidate). Also, it was argued, in the third case, the court was called

upon to determine the power of the DDP to issue certificate denying

bail for public interest under section 148(4) of the Criminal Procedure

Act, Cap 20 R.E 2002 an issue was latter raised in Gideon Wasonga

and Others versus Attorney General and others (supra). In both

cases, it was argued the court proceeded without being bound by the

principle of res-judicata.

Regarding whether the 5 conditions pertaining to the principle of res

judicata has been proved, Mr. Kambole submitted that all the five

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principles have been met, save for the second principle that ‘the

matter in issue which is directly and substantially in issue in the

instant case was directly and substantially in issue in Attorney

General v Rebeca Z Gyumi (supra) in which case he argued that

the two are not similar. He based his argument on three grounds:

First, the cause of action in the present case is different from the

cause of action in previous case in that the provisions challenged in

the two cases are different. Second, the prayers are different and,

third, the averments are different. He also argued that the decision

quoted by Mr. Kalola being decision of this court are not binding. In

sum, he beseeched the court not to follow the principle in the two

cases cited by the learned State Attorney. In addition, Mr, Kambole

convinced us not to be bound by the principle of res judicata, which

is, in his view, a technicality meant to defeat dispensation of

substantive justice. He argued further that, the point of res judicata,

apart from being a technicality, does not fall under the purview of

preliminary objection as defined in Mukisa Biscuit Manufacturing

Company Ltd. v. West End Distributors Ltd. (1969) EA 696.

In rejoinder Mr. Kalokola reiterated that the instant petition and the

the AG V Rebeca z. Gyumi are similar in that, the provision

challenged herein was enacted to serve the provision of section 13

and 17 which were nullified in the previous case. Thus, upon

nullification of the two provisions, there will be no child marriage

and, consequently, the defence that the victim is married to the

accussed can no longer stand. Mr. Kalokola further rejoined that the

principle of res judicata is applicable in public interest litigation and

he cited the case of Fikiri Liganga & Another v The Attorney

General & Another, Misc. Civil Cause No. 5 of 2017 (HC) and

Zephrine Nyarugenda Galeba v Hon Attorney General and the

Tanganyika law Society, Misc. Civil Cause No. 12 of 2015 (HC).

I have carefully considered by both parties. I commend all of them for

their industry in presenting their respective case. The submissions

by the parties reveal that there are two issues for determination:

First, is the principle of res judicata, applicable in public interest

litigation and if so to what extent? Second, is the instant petition res

judicata to AG V Rebecca Gyumi? Before I proceed to determine this

issue, I will preface my determination with a brief comment of the

two issues raised by Mr. Kambole, that is, the competence of res

judicata as a ‘preliminary objection on a point of law’ and whether

the same is a technicality intended to defeat substantive justice.

As correctly submitted by both parties, the contextual exposition of

the term 'preliminary objection’ was articulated in the widely

cerebrated case of Mukisa Biscuit Manufacturing Company Ltd. v.

West End Distributors Ltd. (1969) EA696 which has been

consistently cited with approval in our jurisdiction. In this case the

term preliminary objection in the following manner:

"... is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot

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be raised if any fact has to be ascertained or what is the exercise of judicial discretion."".... , a preliminary objection consists of a pointof law which has been pleaded or which arises by clear implication out of the pleadings, and which, if argued as a preliminary objection, may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of (time) limitation, or a submission that the parties are bound by the contract giving to the suit to refer the dispute to arbitration."

The rationale behind preliminary objections was well articulated in

the case of Shahida Abdul Hassanali Kasam v. Mahed Mohamed

Gulamali Kanji - Civil Application No. 42 of 1999, Court of Appeal

of Tanzania (unreported), where the Court of Appeal held that:

"The aim of a preliminary objection is to save the time of the court and of the parties by not going into the merits of an application because there is a point of law that will dispose of the matter summarily."

In my settled view, the issue of res judicata perfectly suits under the

purview of the preliminary objection and corresponds with the

rationale behind preliminary objection. This principle, as articulated

under section 9 of the Civil Procedure Code Cap 33 RE 2002, states

that:

“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

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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 in which such issue has been subsequently raised and has been heard and finally decided by such court.”

As correctly argued by Mr. Kambole, the doctrine of Res judicata is

based on the larger public interest and is founded on two grounds,

the maxim nemo debet bis vexari pro una et eadem causa ("No one

ought to be twice vexed for one and the same cause" ); and second,

public policy that there ought to be an end to the same litigation. Its

overriding purpose is that once a matter has been determined in a

former proceeding it should not be open to parties to re- agitate the

matter again and again (State of Karnataka & Anr vs All India

Manufacturers Case No: Appeal (Civil) 3492-3494of 2005). In so

doing, it saves the time of the court and of the parties by not going

into the merits of a matter which has already been conclusively

determined. The decision of the Court of Appeal of Kenya in John

Florence Maritime Services Limited & another v Cabinet

Secretary for Transport and Infrastructure & 3 others [2015]

eKLR, provides a more nuanced explanation of the rationale behind

res judicata, as stated below:

“The rationale behind res judicata is based on the public interest that there should be an end to litigation coupled with the interest to protect a party from facing repetitive litigation over the same matter. Res judicata ensures the economic use of court’s limited resources and timely

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termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgments by reducing the possibility of inconsistency in judgments of concurrent courts. It promotes confidence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law. Without res judicata, the very essence of the rule of law would be in danger of unraveling uncontrollably.In a nutshell, res judicata being a fundamental principle of law may be raised as a valid defence.”

On the contention that res judicata is a merely technicality and

serves no purpose than defeating substantive justice, the court had

this to say:

The doctrine is not a technicality. It goes to the root of the jurisdiction of the court to entertain a dispute. If it is successfully ventilated, the doctrine will deny the court entertaining the dispute jurisdiction to take any further steps in the matter with the consequence that the suit will be struck out for being res judicata. That will close the chapter on the dispute. If the doctrine has such end result, how can it be said that it is a mere technicality.M If a constitutional petition is bad in law from the onset, nothing stops the court from dealing with it peremptorily and having it immediately disposed of. There is no legal requirement that such litigation must be heard and determined on merit

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Based on these authorities which I find to be highly persuasive, I

reject the contention made by Mr. Kambole that the doctrine of res

judicata does not fall under the purview of preliminary objection and

is mere technicality which should not be accorded any weight as

doing so would defeat substantive justice.

Regarding the first issue for determination, I find the submission by

Mr. Kalokola to be reflective of the position of the law as it currently

stands. As correctly submitted by the learned State Attorney,

although the doctrine of res judicate is not articulated under the

Basic Rights and Duties Act, [Cap 2 RE 2002] (BRADEA) and the

Basic Rights and Duties Enforcement [Practice and Procedure] Rules

2004; its application in constitutional matters is permissible under

Rule 19 of and Duties Enforcement [Practice and Procedure] Rules

2004. It is to be noted that, the issue to the relevance and

applicability of the doctrine of res judicata is not an alien subject in

our jurisdiction. It has been canvased in many cases by this court

and the position has consistently been that the doctrine of res

judicata is applicable in constitutional and public interest litigation.

In Fikiri Liganga & Another v Attorney General (supra), having

employed this doctrine of res judicata, the court struck out the

petition for being res judicata to Zephrine Nyarugenda Galeba v

Hon Attorney General and Another (supra). The principle of res

judicata was also recently applied by this court in Machibya Selemani & 2 Others v the Attorney General, Misc. Civil Cause

No. 24 of 2018 and Boniface Vicent Muhoro and 4 Others v the

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Attorney General, Misc. Civil Cause No. 3 of 2019 (HC), both of

which were challenging the constitutionality of Section 36 (2) of the

Economy and Organized Crimes Control Act [Cap 200 R.E 2019]

which had been conclusively determined in Godrey Wasonga

(supra). Guided by these authorities which I find to be highly

persuasive, I find no reason for departure. Mr. Kambole has urged

me to consider this petition as falling under the exceptional

circumstances stated in the Indian cases cited. However, he provided

no material to demonstrate the exceptional circumstances presented

by the instant petition. The omission means that, I have nothing

upon which to gauge the finding which the learned counsel has

enticed this courtto make. Under the premise, I full subscribe to the

position above stated.

Having resolved this issue, I now proceed to the crucial issue for

determination, that is, whether the instant petition is res judicata to

Attorney General v Rebeca Z. Gyumi. As correctly argued by the

parties, this principle is not provided for under the BRADEA and the

Basic Rights and Duties Enforcement (Practice and Procedure) Rules,

2014. However, as argued by the learned counsel, rule 19 of these

Rules makes a room for application of the principle.

It is now a settled law that, for the principle of res judicata to apply

five conditions must be satisfied. Th conditions are summarized in

the decision of the Peniel Lotta vs Gabriel Tanaki and others Civil

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Appeal No. 61 of 99 (CAT at Arusha), The Court of Appeal considered

the applicability of this rule at length. The Court of Appeal held that.

“The doctrine of res judicata is provided for in S. 9 of the CPC, 1966. Its object is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgment between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit.”

The Court amplified further that:

“the scheme of S.9 therefore, contemplates five conditions which, when co-existent, will bar a subsequent suit. The conditions are:- (i) The matter directly and substantially in issue in the subsequent suit must have been directly and substantially is issue in the former suit, (ii) The former suit must have been between the same parties or privies claiming under them. (iii)The parties must have litigated under same the 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 is issue must have been heard and finally decided in the former suit.

The petitioner does not contend the conditions in item (ii) to (iv). His

contention is with regard to the condition in item (ii) to which he has

argued as follows. Firstly, the cause of action in the present case is

different from the cause of action in previous case in that the

provisions challenged in the two cases are different. Second, the

prayers are different and, third, the averments are different.

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Fardunji Mulla in Mulla: The Code of Civil Procedure (18th

Edition, 2011) at page 168 defines the terms “directly and

substantially in issue” as follows:

"The words 'directly and substantially in issue' are used in contra-distinction to the words 'incidentally andcollaterally in issue', That means that .......... there isidentity of the matter in issue in both the suits meaning thereby, that the whole of the subject matter in both the proceedings is identical and not merely one of the many issues arising for determination [Emphasis added]

In Jeremy Woods & Anor Vs Robert Choudury &Another,

Commercial Case No. 18 of 2007 (unreported) this Court has held

that:

“[It] does not mean any matter in issue in the suit, but has reference to the entire subject matter in controversy.It is not enough that one or more issues are in common.The subject matter in the subsequent suit must be covered in the previous suit and not vice versa, [emphasis added]All see the case George Shambwe V Tanzania Italian Petroleum Co. Ltd (supra) and Peniel Lotta vs Gabriel Tanaki and others (supra)

Guided by the principle above, I am unable to agree with Mr. Kambole

regarding the difference between the two cases. As correctly argued

by Mr. Kalokola, although premised under different provisions of the

law, section 130(2)(e) of the Penal Code and sections 13, and 17 of

the Law of Marriage Act which were declared unconstitutional in AG

v Rebecca Z. Gyumi have a similar implication, namely, sanctioning

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child marriage. It is very obvious that section 130(2)(e) which was

inserted in the Penal Code following the Sexual Offences Special

Provisions Act (SO SPA) was meant to avoid an impending

contradiction between the Penal Code and the Law of Marriage Act.

In all fairness, I could not comprehend how can the defence provided

under section 130(2)(e) be raised after the provision permitting child

marriage has been nullified.

In addition, in the course of reading the decision of this court and

that of the Court of Appeal, I have noted that, there were cross-

reference to section 130(2)(e) of the Penal Code by the courts and the

counsel. In the course of reference, the High Court made the following

remarks which were cited with approval by the Court of Appeal.

"Close reading of SOSPA provisions makes us wonder how after its enactment a court could be moved to under section 13(2) or 17(2) of the Act to leave for a girl under 18 years to enter into marriage while such prayer if granted by the court will constitute the newly created offence of statutory rape. From 1998 when the SOSPA amendment came into being, it is now over 15 years now (sic), which means we do not expect to have a valid and competent application still being filed in courts seeking leave.

It was therefore, less surprising to us that, the petitioner’s counsel

spent most of the time contextualizing the doctrine of res judicata

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and its applicability in public interest litigation while he barely

provided any material as to how the two cases are distinguishable.

Based on what I have demonstrated above, I am of the settled view

that the instant application is incompetent for being res judicata to

AG v Rebecca Z. Gyumi (supra).

I wish to conclude with the following observation made by this court

in Machibya Selemani & 2 others v the Attorney General (supra)

We do not think that it is the intention of the Basic Rights and Duties Act (supra) to allow litigants to re- agitate afresh on constitutionality of the provisions of the law which have already been adjudicated upon. To allow such practice will create a room for conflicting decisions, endless litigations and would render well established principles of law such as, res judicata, nugatory.

In the final event, I struck out the petition with no orders to costs.

DATED at DAR ES SALAAM this 3rd day of July 2020.

J.L. MASABO

JUDGE

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