CASPIAN LTD VS TANCOAL ENERGY LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 200 OF 2018 (Originating from Misc. Commercial Case No. 198 of 2018) BETWEEN CASPIAN LIMITED ............... APPLICANT VERSUS TANCOAL ENERGY LIMITED ............ RESPONDENT RULING 12/10/2018 & 13/11/2018 SEHEL, J. The applicant through the services of Ngalo & Company, Advocates filed an application for ex-parte interim restraining orders and inter-parties temporary injunction restraining the respondent, its bankers, agents, employees, or any other person acting on their behalf from making any payment remitting money outside the country from the respondent’s bank accounts, including but not i limited to its bank accounts with KCB Tanzania Limited and Citibank Tanzania Limited pending the hearing and determination of the applicant’s petition for administration orders in Miscellaneous Commercial Case No. 198 of 2018. The application is made under Order XXXVII Rules 2 and Sections 68 (e) and of the Civil Procedure Act Cap. 33 (hereinafter referred to as “CPC”). The respondent having been served with summons, through its learned advocate Gerida L. John from Aloys & Associates, filed a counter affidavit and notice of preliminary objection to oppose the application. The notice of preliminary objection was to the effect that: 1. The application is incurably defective having been made under wrong and/or inapplicable provisions of the law; and 2. The affidavit in support of the application is incurably defective for containing arguments and prayers. The hearing of the preliminary point of objections was done orally and prior to the oral hearing, the counsel for respondent dully complied with Rule 64 of the High Court (Commercial Division) .. 2 Procedure Rules, GN 250 of 2012 (“the Rules") by filing its skeleton arguments. At the hearing of the preliminary objections, learned advocate Aloyce Bahebe appeared to represent the respondent while the learned advocate Michael Ngalo appeared to represent the applicant. Counsel Bahebe begun his submission by adopting the skeleton arguments filed and opted to argue the first preliminary objection while dropping the second preliminary objection. He highlighted that Order XXXVII Rule 2 of CPC has three sub-rules of which the applicant ought to cite the proper provision of the law applicable. He contended that the applicant has failed to indicate which sub-rule he preferring its application. He contended that the proper provision is Order XXXVII Rule 2 (1) of the CPC which enables the applicant to apply to the Court seeking for a temporary injunction to restrain the respondent from committing the breach of the contract. The counsel pointed out that Sections 95 and 68 (e) of CPC are not applicable because Section 95 of the CPC deals with inherent lift. 3 powers of the court while Section 68 (e) of CPC empowers the Court to make other interlocutory orders as may appear to be just and convenient. The counsel argued that the proper provision for interim and temporary injunction is Section 68 (c) of the CPC. He argued that there are chain of authorities that held non citation of the law, section, sub-section, rule, or sub-rule renders the application incurably defective and it should be strike out. To support his submissions he made reference to various decisions of the Court of Appeal of Tanzania in China Henan International Cooperation Group Vs Slavand K.A Rwegasira, Civil Application No. 22 of 2005; John Paul Shibuda and Another Vs Nordox Industrier AS, Civil Application No. 171 of 2015; Dimon Tanzania Limited Vs The Commissioner General Tanzania Revenue Authority and 2 Others, Civil Application No. 89 of 2005; and Elly Peter Sanya Vs Ester Nelson,- Civil Application No. 3 of 2015 (All unreported). In that respect, Counsel Bahebe prayed for the application to be strike out with costs. In reply, counsel Ngalo contended that the provisions of Order XXXVII Rules 2 of the CPC is self sufficient to move the Court in 4M 4 granting temporary injunction as the marginal notes of it is clear that it is about injunction on continued breach. He pointed out that the applicant is seeking temporary injunction based on allegation that the respondent has breached the contract as contained in Sub-rule 2 (1) of Order XXXVII of the CPC. The counsel argued that he sees no any other provision of the law that deals with the prayer they are seeking. He thus termed the objection as trivial and prayed for it to be strike out with costs. It was re-joined that marginal notes are not part of the law and that Order XXXVII Rule 2 (1) of the CPC which the counsel for the applicant is referring to has not been cited in the application rather it is coming from the bar. He stressed that the court has been wrongly moved thus the application should be strike out. From the submissions made by the counsels it is not disputed that the applicant is applying for temporary injunction against continuing breach of contract. It is also not disputed that the applicant cited Order XXXVII Rule 2 of the CPC and did not cite specific sub section of the law. Succinctly as submitted by the counsel for the respondent. 5 there are unbroken chain of authorities by the Court of Appeal of Tanzania to the effect that wrong citation of the law, section, sub­ sections and/or paragraphs of the law or non- citation of the law will not move the Court to do what it is asked to do and renders the application incompetent. (See: Edward Bachwa & 3 Others Vs the Attorney General & Another, Civil Application No. 128 of 2006 (DSM Unreported); China Henan International Co-operation Group Vs Salvand K. A. Rwegasira [2006] TLR 220; Marcky Mhango (On Behalf of 684 Others) Vs Tanzania Shoe Co. Ltd & Another, Civil Application No. 37 Of 2003 (CAT unreported); and Badar Seif Sood Vs Hurbert Marwa and Family and 2 Others, Civil Application No. 95 of 2013 (Unreported). Since the applicant failed to cite the proper provision of the law then I find the application incompetent. I proceed to strike it out with costs for being incompetent. It is so ordered. ed at Dar es Salaam this 13th day of November, 2018. B.M.A Sehel JUDGE 13th day of November, 2018. 6