By Evarist Baimu Nyaga Mawalla - Home

country. It seems also that the Dar es Salaam suit was instituted earlierbecause the record of this petition shows that its trial was being put off toawait the outcome of the former. In these proceedings we do not have aprescribed procedure but we have invariably invoked and been guided bythe provisions of the Civil Procedure Code, 1966. Section 8 of the Codeprovides thus:-8. No court shall proceed with the trial of any suit in which the matter in issue is alsodirectly or substantially in issue in a previously instituted suit between the sameparties, or between parties under whom they or any of them claim litigating underthe same title where such suit is pending in the same or any other court inTanganyika having jurisdiction to grant the relief claimed.This provision is in parimaterial with s. 10 of the Indian Code of Civil Procedure, 1908.MULIA observes in relation to the latter that the object is to prevent courts of concurrentjurisdiction form simultaneously trying two parcelled suits in respect of the same matterin issue. It goes on to claim, citing a 1919 obsoure authority, that is section enacts merelya rule of procedure and a decree passed in contravention of it is not a nullity and cannotbe disregarded in execution proceedings. I think, however, that this might be true wherethe subsequent suit is decided without knowledge of the existence of the suit.It is the pendinoy of the previously instituted suit that constitutes a bar to the trialof the subsequent suit. The word “suit” has been held to include “appeal” see RajSpinning Mills v.A.G. King Ltd (1954) A. Punj. 113. The “matter in issue” in the provision has also beenconstrued as having reference to the entire subject matter in controversy between theparties and not merely one or more of the several issues: see Hariram v. Hazi Mohamed(1954) Allahabad 141. the same position was stated by the Court of Appeal of EasternAfrica in Javda Karson v. Harman Singh Bhogal (1953)20 EACA 74 when they wereconsidering s. 6 of Kenya Civil Procedure Ordinance which is again in parimaterial withour s. 8.The case before me is, of course, a novelty. Like the eye of a butterfly, it is a compositionof several petitions wrapped up into one. When considering the expression “matter inissue” one has to consider each issue independently for they have no relationship.There is not one subject matter is controversy between the parties but several. In thesecircumstances the second issue is severable as it could, indeed have been tried in aseparate suit. In the circumstances of this case “matter in issue” must be taken to bematter in issue in each of the six issues framed and I am satisfied that the same matter isin issue in the appeal pending before the Court of Appeal.In Jinnat Bibi v. Howeah Jute Mills Co. Ltd. AIR 1932 Cal. 751, it was held thatthe provisions of s. 10 of the Indian Code were mandatory and left no discretion to the214