National Insurance Corporation vs Consolidated Holding Corporation, Civil Appeal No 9 of 2008.

The appellant herein filed this appeal on 22nd November, 2010 following the decision of the High Court (Mihayo, J.) whereby his case wasdismissed as being res judicata. The said High Court had been made to 

believe that there existed another similar case before the Commercial Division of the High Court (the Commercial Court) and which had been heard and finally determined. The said case at the Commercial Court involved the same parties and whose subject matter was directly and substantially the same with the matter before the High Court. The plaintiff then (the present appellant) resisted that averment, stating that the two suits were different. To satisfy himself as to the correctness of the information, the trial judge directed Mr. C. Tenga, then acting as counsel for the appellant, to verify the position and report to the trial court on 17th

April, 2007, a date fixed for Mention.

In view of the above summary of facts, it is apparent that this appeal can be disposed of by considering the two main issues namely – whether a case can be dismissed on a date fixed for mention; and whether the trial 

judge had sufficient material to enable him dismiss the suit on the 17th April, 2007 on the basis of res judicata. We find it apposite to start by considering the issue of mention.

Mention is a word commonly used and or applied by our courts in this jurisdiction. However, it lacks legal backing. The Civil Procedure (CAP 33 R.E. 2002) does not provide for mention. As stated by this Court in The Executive Security, Wakf and Trust Commission vs Saidi Salmin Ambar (Civil Appeal No. 7 of 1996) (unreported), mention is not a legal requirement but one of practice only (See also Lembrice Israel Kivuyo vs M/S DHL World Wide Express and Another (Civil Appeal No. 83 of 2008) (unreported). 

It is, therefore, a practice before courts of 

law whereby parties to a case appear before the court to ascertain the state of pleadings or stage reached in the trial and then proceed to make necessary orders. It is not the practice of courts under our jurisdiction to dismiss or make other orders that substantially bring a case to finality on a day fixed for Mention. In our considered view, therefore, a case can be dismissed for various, legally recognized grounds when it comes up for hearing, not Mention. In the present case, we find it improper for the 

trial judge to have dismissed the case when it came up for Mention. This brings us to the issue of res judicata.

The fundamental question however, and as we see it, is whether the said trial judge had, in his possession conclusive material to make him invoke the doctrine of res judicata on the 17th April, 2007. We find none. In his order of that date, it appears that he relied upon the views of counsel for the defendant, following the non appearance of the plaintiff and his counsel. In our considered view, that was wrong. 

In conclusion, we allow the appeal with costs. The record to be returned to the High Court with directions to proceed with the hearing and determination of Civil Case No. 197 of 1998 on its merits from where it stopped i.e. just before the dismissal order dated 17th April, 2007.