Ruling Miss

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI MISCELLANEOUS CIVIL APPLICATION NO. 95087 OF 2023 (Originating from Petition No. 04 of 2021 in the High Court of Tanzania Moshi Sub-Registry.) CHARLES EVANS TARIMO (As Administrator of Estate of the Late Cornel Kisinane Tarimo)…....................................................APPLICANT VERSUS HELLEN MAHUNA (As Liquidator of Moske Nashalo Farms Limited) DAPHROSA EDITH MUSHI ………..…………RESPONDENTS MSOKE NASHALO FARMS LIMITED COBB EAST AFRICA LIMITED RULING 15th October & 19th November, 2024 MONGELLA, J. This Ruling follows several points of preliminary objection raised by the respondents. The 1st and 3rd respondent’s points of objection were to effect that: Page 1 of 15 a. This Court is not Seized with Jurisdiction to entertain this Petition: i. There is a pending appeal before the Court of Appeal of Tanzania emanating from the very proceedings of Petition No. 04 of 2021 i.e. Civil Appeal No. 33 of 2024 before the Court of Appeal Tanzania. ii. For contravening Provision of Section 288 of the Companies Act, No. 12 of 2002 [Cap 212 R.E 2002]. b. That the petition is untenable and incompetent in law: i. There is a pending application of extension of time to file application for revision before the Court of Appeal i.e. Civil Application No. 354/5 of 2024 before Court of Appeal of Tanzania. ii. For being filed prematurely without exhausting available remedies under the Companies Act, No. 12 of 2002 [Cap 212 R.E 2002]. iii. For want of Locus Standi of the Applicant iv. Non-joinder of parties. The 2nd and 4th respondents raised two points of preliminary objection similar to those under paragraph ‘a’ by the 1st and 3rd respondents. Hearing of the objections proceeded by written submissions. All parties enjoyed legal service from learned counsels. The applicant was represented by Mr. Gwakisa Kakusulo Sambo, learned Advocate. On the other hand, the 1st respondent, Ms. Hellen Page 2 of 15 Mahuna represented herself and the 3rd respondent. The 2nd respondent was represented by Mr. Ansbert Rugaibura Jovin and; the 4th respondent by Mr. Boniface Joseph, both learned Advocates. I shall first address the point of objection relating to the jurisdiction of the Court to entertain the matter at hand following a pending appeal in the Court of Appeal and if need be, address the rest of the points of objection. Under this point of objection, Ms. Mahuna averred that the 3rd respondent preferred an appeal to the Court of Appeal against Petition No. 04 of 2021 determined by this Court on 02.06.2022. She said that the notice of appeal was duly filed on 28.06.2022 rendering all proceedings relating to the said Petition to be moved to the Court of Appeal. She added that as jurisdiction can only be vested in one place at a time, this Court lacks jurisdiction to entertain any matter in relation to the said Petition as the matter is now before the Court of Appeal. She supported her averment with the case of Keith Horan & Others vs. Zameer Sheral Rashid (Civil Application 3 of 2022) [2023] TZHC 14 (8 February 2023) in which several cases were referred in support of the assertion and thereby stressing that since this application arose from said Petition, it is a paraphernalia of the Petition and cannot be entertained. To further emphasize on her position, she contended that since the notice of appeal was filed on 28.06.2022 and this application on Page 3 of 15 29.12.2023, there are no any proceedings before this Court, thus no any other matter related thereto could be preferred. Considering the reliefs sought by the applicant in this matter, Ms. Mahuna contended that some orders sought in this application such as revocation of the 1st respondent as liquidator, appointment of another liquidator and others have the effect of altering the decision of this Court in the original Petition, which is subject to Civil Appeal No. 33 of 2024 before the Court of Appeal. On the other hand, she argued that the prayer to order the respondent to refrain from continuing to act as liquidator has the effect of staying the execution. Addressing the legal position, she contended that once the notice of appeal is lodged, this Court is ripped off powers to stay execution of the decree or issue an injunction to that effect. To buttress her point, she cited the case of Prosper Petro Munisi (Legal Administrator of Peter Munisi) vs. Yunus Bakari Mshana and Another (Misc. Application 151 of 2019) [2020] TZHC 637 (31 March 2020) at pages 1, 7 and 8 and that of Chalinze Cement Company Limited vs. Fair Competition Commission (Misc. Civil Cause No. 5 of 2023) [2023] TZHC 15654 (27 February 2023) at pages 18 and 19. Addressing the same point of objection, Mr. Jovin for the 2nd respondent shared similar views with Ms. Mahuna. He argued that this application originates from Petition No. 04 of 2021, which is being challenged before the Court of Appeal vide Civil Appeal No. 33 of 2024 and Civil Application No. 354/05 of 2024. He contended Page 4 of 15 that since the law disallows invoking two jurisdictions, once the matters were filed in the Court of Appeal, this Court ceased to have jurisdiction on the same. He fortified his averments with the case of Serenity on The Lake Ltd vs. Dorcas Martin Nyanda (Civil Revision No. 1 of 2019) [2019] TZCA 65 (12 April 2019) and Isidore Leka Shirima & Another vs. The Public Service Social Security Fund & Others (Civil Application No. 151 of 2016) [2021] TZCA 761 (18 October 2021). Mr. Jovin insisted that owing the nature of this application and there being an appeal and a civil application with respect to the impugned Petition, this Court’s jurisdiction is ousted. On behalf of the 4th respondent who also advanced a similar point of objection, Mr. Joseph averred that on 28.06.2022, Civil Appeal No. 33 of 2024 was preferred to challenge the decision on Petition No. 04 of 2021. He added that parties to the said appeal have already presented their submissions thereto and the matter is headed to disposal. With respect to the appeal at hand, he argued that the same was lodged on 29.12.2023 and it challenges the same decision in Petition No. 04 of 2021. In the premises, he stressed that the law is settled that once there is a pending matter before the Court of Appeal, this Court ceases to have jurisdiction over it. The learned Counsel fortified his stance with the Case of Tanzania Electric Supply Company Limited vs. Dowans Holdings (Costa Rica) & Page 5 of 15 Another (Civil Application No. 142 of 2012) [2013] TZCA 437 (27 March 2013) TANZLII and Serenity on The Lake (supra). Mr. Joseph further argued that the principle is essential in maintaining hierarchical structure of the judicial system and to ensure proper administration of justice. He added that adherence to established legal principles and precedents is vital in upholding integrity and credibility of the judicial system. That, clarity as to jurisdictional issues is paramount in avoiding confusion and ensuring legal certainty to involved parties. He insisted that both the civil appeal and the civil application at the Court of Appeal relate to Petition No. 04 of 2021. On what appears to be related but rather raised as a separate objection, Mr. Joseph averred that the fact that the petitioner is pursuing Petition No. 95087 of 2023 (this petition); Civil Appeal No. 33 of 2024 and Civil Application No. 354 of 2024 all challenging Petition No. 04 of 2021 amounts to riding three horses at once. In his stance, this act ought to be condemned. He referred to the case of Jalibu Mrisho Mwenemilao vs. The Hon. Attorney General & Others (Civil Application No. 538/17 of 2022) [2023] TZCA 17799 (7 November 2023) TANZLII to buttress his point. In reply to the 1st and 3rd respondents’ submissions. Mr. Sambo averred that Civil Appeal No. 33 of 2024 has nothing to do with the current petition as the applicant was not party to the same. He added that the Ruling in connection with the said Petition was in persona and not in rem, thus binding only parties to the suit and not Page 6 of 15 the whole world. He supported such stance with the case of Mohamed Ally vs. Masesa Ally (Civil Appeal No. 607 of 2023) [2024] TZCA 802 (22 August 2024) and that of Masumbuko Kowolesya Mtabazi vs. Dotto Salum Chande Mbega (Civil Appeal No.44 of 2013) [2020] TZCA 1939 (26 March 2020) both from TANZLII. Reacting to the cited case of Keith Horan & Others (supra), Mr. Sambo argued that the same is distinguished as the applicant did not file the alleged appeal before the Court of Appeal. He is instead a respondent in the said appeal. Showing that the Petition at hand and the alleged appeal in the Court of Appeal are distinct matter, he further argued that the 1st and 3rd respondents never attached the prayers in Petition allegedly similar to those sought in the appeal before the CAT. In his stance, the said appeal is distinct from the Petition at hand. In those bases, he was convinced that this Court has jurisdiction to determine the application at hand. Mr. Sambo had similar observations with respect to the to the 2nd respondent’s submissions. He reiterated his argument that the decision in Petition No. 04 of 2021 was in persona and not in rem. He further defended that the decision was only binding to the 1st, 2nd and 3rd respondents and not the 4th respondent who was not a party thereto. He again referred to the case of Mohamed Ally (supra) emphasizing that the applicant was not a party to the said Petition and had not filed any notice of appeal to the Court of Appeal to challenge the decision. In the light of such averments, he refuted the argument that he had invoked two jurisdictions. Page 7 of 15 Commenting on the case of Serenity on the Lake (supra), he argued that the same is distinguished as in that case the applicant had initiated an appeal by filing notice of appeal and then sought for revision. However, he said, the applicant herein has not filed any notice of appeal or an appeal involving all the parties. He alleged that the case of Isidore Leka Shirima (supra) falls under similar circumstances. Mr. Sambo further insisted that the pending application for extension of time to file revision has nothing to do with the present matter nor does it make this application incompetently before the Court as it involves different parties. Mr. Sambo’s reply to the 4th respondent commenced with comments as to his use of the word “Petitioner” in a confusing manner, a fact I admit to be apparent in the submissions by Mr. Joseph. In relation to gist of the matter at hand, Mr. Sambo insisted that the applicant never lodged an appeal to the Court of Appeal with respect to Petition No. 04 of 2021. He raised a new issue thereto alleging that the presence of the mentioned appeal to the Court of Appeal is a matter of fact and not law as it requires evidence. He as well, maintained similar arguments on the decision in Petition No. 04 of 2021 being in persona and not in rem and that he was not a party to the said Petition nor the appeal before the Court of Appeal. He as well found the case of TANESCO vs. Dowans (supra) and that of Serenity on the Lake (supra) distinguished. Addressing the Page 8 of 15 holding that this Court lacks jurisdiction to entertain a similar subject matter as ruled in the cited cases, Mr. Sambo faulted the Counsel’s failure to elaborate how this application bears the same subject matter as in Civil Appeal No. 33 of 2024. He referred the case of Mohamed Ally (supra) insisting that only parties to the case are bound by that decision. In addition, he cited the case of Michal Obiero vs. Ager Ondiek & Another (Civil Appeal No. 422 of 2022) [2024] TZCA 584 (17 July 2024) and that of Jacqueline Jonathan Mkonyi & Another vs. Gausal Properties Limited (Civil Appeal 311 of 2020) [2022] TZCA 288 (17 May 2022), both from TANZLII. Responding to assertions that this application is an abuse of the Court process, Mr. Sambo averred that the applicant is only riding this Petition to access remedies in the said Petition. In that respect, he considered the case of Jalibu Mrisho (supra) distinguished from the present one as in the respective case, the applicant was seeking to appeal to the Court of Appeal while also seeking for revision in the same Court. It was only Mr. Jospeh who rejoined to Mr. Sambo’s submissions, especially on the alleged confusion in use of the word “petitioner”. Clarifying, he submitted that he referred to the petitioner as such as the petitioner/applicant preferred this matter under Section 233 of the Companies Act. He insisted and sought for the Court to take judicial notice that he had instructed and initiated the appeal pending before the Court of Appeal as a beneficiary of Msoke Nashalo Farms Limited. Page 9 of 15 Without prejudice to his averments, the learned Counsel contended that even if the applicant was not a party to the proceedings before the Court of Appeal, he is barred from challenging same decision subject to the pending appeal. He stressed that there cannot be three parrel mattes in different forums challenging and seeking to overturn the same decision. He insisted that this is a forum seeking and an abuse of the Court process. Before embarking on determination of the point of objection, I wish to clarify that: one, this matter, although identified as a miscellaneous application, it is a petition in terms of Section 233 (1), (2); Section 121(1), (2) and (3), Section 137 (1),(2),(3) and Article 26, 27, 28 of Table A of the 1st Schedule and other provisions under the Companies Act, 2002 under which it is preferred. The title accorded was thus a mere error. Two, the petitioner herein was not a party to proceedings under Petition No. 04 of 2021 and anywhere the fact is somehow displayed otherwise is a manifest error, a mere confusion by parties. Back to the point of preliminary objection. Upon observing the rival submissions with respect to the 1st item in the point of objection numbered “a” as well as the pleadings by all the parties; I am of the view that the contest between the parties on whether the filing of Civil Appeal No. 33 of 2024 operates as a bar to this Petition. Notably, as argued by parties, the initial Petition No. 04 of 2021 was for winding up of a company. The same was preferred by the 2nd respondent and challenged by the 3rd respondent. In the said Petition, the 1st respondent and one Jeremiah Tarimo were Page 10 of 15 appointed as liquidators of the 3rd respondent. The 3rd respondent was aggrieved and preferred Civil Appeal No. 33 of 2024 against the 2nd respondent. Such fact is well evident in the Annexed Notice of Appeal “Annexure MN5”. It is settled position that where a notice of appeal to the Court of Appeal is filed, the High Court ceases to have jurisdiction over the respective matter. There are plethora of decisions presenting such holding. The said decisions address a scenario where the applicant is preferring an appeal before the Court of Appeal and at the same time seeking redress in this Court. Such situation was addressed by the Court of Appeal in Serenity on the Lake (supra); TANESCO vs. Dowans (supra); Awiniel Mtui and Three Others vs. Stanley Ephata Kimambo (Attorney for Ephata Mathayo Kimambo), Civil Application No. 19 of 2014 (unreported); Matsushita Electric Co. Ltd vs. Charles George t/a CG Travers, Civil Application No. 71 of 2001 (unreported) and Aero Helicopter (T) Ltd vs. F.N. Jansen [1990] TLR 142 (CA), among others. This Court has also addressed this issue in several instances including in Chalinze Cement Company Limited (supra) and Prosper Petro Munisi (legal Administrator of Peter Munisi) (supra). In essence, Mr. Sambo does not contest this settled principle, but argues against its application in the present case for two reasons; one, that the applicant was not a party to Petition No. 04 of 2021 and Civil Appeal No. 33 of 2024 preferred from it. Two, that the decision in the said Petition was in persona and not in rem. It is on Page 11 of 15 bases of the advanced two reasons that he believes the principle does not operate in present circumstances. I do agree that indeed as I have indicated, the applicant was not a party to Petition No. 04 of 2021 nor the pending appeal before the Court of Appeal against the said matter. However, I disagree with his notion on the decision for winding up made under Petition No. 04 of 2021 being a judgement in persona and not in rem. It is common that an order for winding up a company affects its status rather than specific individuals. The company’s legal status is fixed to cease to exist and consequently all persons with interest in it become affected. These include shareholders and creditors, among others. In the premises, Mr. Sambo’s averment on the applicant being justified to bring this application on the stance that Petition No. 04 of 2021 was a judgement in persona fails. The principle that where a notice of appeal is filed in the Court of Appeal, this Court lacks jurisdiction was founded on the fact that where such appeal is preferred, all proceedings of the lower Court are moved to the respective appellate Court. Subsequently, the substantive matters of the case will be under the appellate Court’s mandate. The lower Court maintains the power to determine ancillary issues. This is to avoid conflicting decisions in the future, duplicate proceedings and to protect hierarchy of Courts. The Court of Appeal in TANESCO vs. Dowans (supra), stated: Page 12 of 15 "It is settled law in our jurisprudence, which is not disputed by the counsel for the applicant that the lodging of a notice of appeal in this Court against an appealable decree or order of the High Court commences proceedings in the Court. We are equally convinced that it has long been established law that once a notice of appeal has been duly lodged, the High Court ceases to have jurisdiction over the matter.” As to the exception under which this Court would retain its jurisdiction, the Court of Appeal in Matsushita Electric Co. Ltd (supra) stated: "Once a Notice of Appeal is filed under Rule 76 (now Rule 83(1) of the Rules) then this Court is seized of the matter in exclusion of the High Court except for applications specifically provided for, such as leave to appeal or provision of a certificate of law." While in some jurisdictions the High Court retains the power to determine applications for stay of execution, that is not the case in our jurisdiction. This issue was well addressed in Serenity on the Lake (supra). From the foregoing, it is thus clear that the Court of Appeal is left with utmost authority in determining the subject matter in appeal. This Court is thus stripped off the jurisdiction to determine any matter that is related to the subject matter before the Court of Appeal and of which its decision is affect the same. Page 13 of 15 In the matter at hand, the applicant or rather petitioner seeks for several reliefs including declarations that: the 1st respondent is found to act in a manner prejudicial to interests of members, the petitioner and the 3rd respondent; the 1st respondent abused her appointment as liquidator; the 1st respondent’s conducts are prejudicial to the interests of creditors; the 1st respondent is incapable of performing as liquidator, among others. He also seeks for revocation of the 1st respondent’s appointment and appointment of another liquidator. On the other hand, Civil Appeal No. 33 of 2024 challenges the decision to wind up the 3rd respondent company. This comes with diverse possibilities including an overturn with effect of reviving the Company, which would definitely render the liquidator’s role to cease. In the circumstances, it is obvious that the reliefs sought by the applicant affect the subject matter in the appeal before the Court of Appeal. It is therefore immaterial that the applicant/petitioner herein is not a party to the pending appeal before the Court of Appeal. Further, the applicant himself has also preferred an application for extension of time to file Revision before the Court of Appeal to wit, Civil Revision No. 354/5 of 2024. With this application, it is evident that he intends to challenge Petition No. 04 of 2021 in which he was not a party. As pointed earlier, the subject matter in Petition No. 04 of 2021, on which the intended revision is also founded on, is also related to the matter at hand. Page 14 of 15 As to whether the existing appeal and the revision being sought is an abuse of the court process, I find the same being a subject that should be addressed by the Court of Appeal as it did in Isidore Leka Shirima & Another (supra) and Jalibu Mrisho Mwenemilao (supra). In the foregoing observation, it is my settled finding that this Court lacks jurisdiction to determine the matter at hand as the subject matter herein is related to the pending matter before the Court of Appeal. The first limb of the first point of objection is therefore sustained and suffices to dispose the matter at hand. As such, I refrain from addressing the rest of the points of preliminary objection for avoidance of an academic exercise. The applicant’s Petition/Application is hereby struck out, with costs. Dated and delivered at Moshi on this 19th day of November, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 15 of 15