DB SHAPRIYA CO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 4510 OF 2024 (Arising from Misc. Commercial Application No. 169 of 2023) BETWEEN DB SHAPRIYA & CO. LIMITED....................................... 1st APPLICANT MINESTONE LIMITED..................................................... 2nd APPLICANT DYNAMIC MOTORS LIMITED........................................ 3rd APPLICANT KISHOR DHANJI SHAPRIYA........................................... 4th APPLICANT AMISHI SHAPRIYA......................................................... 5th APPLICANT VERSUS BARCLAYS BANK (T) LIMITED................ 1st RESPONDENT ABDALLAH MAKATTA t/a SENSITICE AUCTION MART & BROKERS 2nd RESPONDENT OPTATUS CHRISSANTU NDONDE........... ,3rd RESPONDENT KAMAKA CO. LIMITED ,.4thRESPONDENT RULING Date oflast order: 14/05/2024 Date ofruling: 24/05/2024 AGATHO, J.: The ruling at hand was triggered by the applicant's application for issuance of summons against the director of the 4th respondent to appear and show cause how he should not be committed to civil prison for contempt of court. That is disobeying the court given on 23rd February 2024. i The 4th respondent protested the application by filing her counter affidavits deponed by Jamila Juma Kimvuli. The latter is said to be her principal officer. Briefly the orders sought as captured in the chamber summons are: 1) That the court be pleased to issue summons to the 4th respondent Managing Director namely Akif Halit Kara to appear before this court and show cause why he should not be condemned of contempt of court and detained as a Civil Prisoner for disobedience of the lawful order of this court dated 23rd February 2024 in Misc. Commercial Application No. 169 of 2023. 2) Costs be provided for. 3) Any other relief this court may deem fit to grant. The Parties were under legal representation. Whereas Mr. Roman Masumbuko represented the applicants, Mr. Juma appeared for the 4th respondent. The application was heard orally on 14th May 2025. Mr. Roman Masumbuko for the applicant began his submission by submitting that the application is for contempt, and they are moving the court to issue summons to the 4th respondent's managing director Mr. Akif Halit Kara for disobeying the court order that was issued on 23rd February 2024. 2 The application is supported by affidavit Dipackumar Kotak and Laurence Aidan. He adopted them as part of his submission. He also adopted the provision provided in the chamber summons. He further adopted the skeleton arguments filed in court. According to Masumbuko, the nature of application requires them to show that the 4th respondent is aware of the order and has failed to comply with the order. The order is attached as annexture DBS -2 to the affidavit of Kotak. He went on submitting that the order was given on 23rd February 2024 in the presence of the lawyer of the 4th respondent, advocate Juma Bakari. The applicants counsel submitted that they have shown in both affidavits the applicant took liberty of serving the 4th respondent to his office, but he refused and directed that the same should be served upon his lawyer. That is also seen in paragraphs 8-10 of the affidavit of Dipackumar Kotak and paragraphs 4-6 of the Laurence Aidan's affidavit. It was Mr. Masumbuko's submission that though they have filed skeleton argument before receiving counter affidavit, the counter affidavit of Jamila Juma Kimvuli admits that they were aware of the order, under paragraph 6 of the counter affidavit they are saying there was no refusal to receiving the letter, but they directed it be sent to the Future Mark Attorneys (where Mr. Bakari practices). The applicants' counsel cited the case of Exim Bank Tanzania Limited v Rafiki Halai, Misc. Commercial Application No. 3 105 of 2021 HCCD at page 10 which requires that the breach of court order must be proved beyond reasonable doubt. It was the view of the counsel for applicant that they have shown that the order of this court required the 4th respondent to maintain status quo ante meaning to reinstate the applicants to the suit premise. And in the affidavit the applicant had shown in the letter that they will take over on 27th February 2024 at 10:00 A.M. but they refused. Mr. Masumbuko was of the opinion that the refusal to reinstate them is a contempt. He referred to the case of Yusuph Shaban Luhumba v Happiness John and 3 Others, Civil Application 304/14 of 20222 at CAT at page 5 which held inter alia that the court has inherent powers to powers to ensure obedience of their lawful orders. He also cited the case of Tanzania Bundu Safaris Ltd v Director of Wildlife & Another [1996] TLR 246 holding that the prime object of contempt proceedings is to vindicate the rule of law, rather than to punish an individual. Regarding the court order, it was Mr. Masumbuko's submission that the 4th respondent claim that they are bonafide purchasers but if they had any issue with the court order they could have appealed against it. He concluded his submission in chief with a prayer that the court issue summons to Mr Akif Halit Kara to appear and show cause why he should be condemned of contempt of court. 4 Mr. Bakari Juma for the 4th respondent as custom adopted the content of 4th respondent's two counter affidavits as affirmed by Jamila Juma Kinvuli. In addition to that he adopted the 4th respondent's skeleton argument to form part of his submission. He submitted that the applicant is alleging the contempt of court order by the 4th respondent. He argued that it is the trite law that contempt of court order is an offence of criminal character, and it must satisfactorily prove. This proposition was the stand of this court in the case of Exim Bank Tanzania Limited v Rafiki Halai (supra). Mr. Juma submitted that in this case the court cited the case of Re Brambleville Limited (1969) 3 ALL ER at page 9. That the evidence to establish contempt of court order must appropriately cogent. It was the submission of the 4th respondent's counsel that a proof of an offence of contempt of court order is that of beyond reasonable doubt and not otherwise. This was the stance of this court in the Exim Bank Tanzania (supra) at page 9 that the standard of proof required to establish civil contempt is that of obtained in criminal proceedings that is beyond reasonable doubt. Mr. Juma submitted against the counsel for applicants' submission referring to the affidavit in support of application that the applicant undertook the handing over on 27th February 2024 at 10:00 A.M. in which the 4th respondent refused to hand over the premises. He argued that this court's 5 order dated 23rd February 2024 did not direct either the applicant to conduct hand over on the said date nor it did order the 4th respondent to hand over the premises on the said date. Therefore, in his view it is not established beyond reasonable doubt that the 4th respondent defied this court's order. He added in his argument that the court order on the said date when one reads the drawn order it does not state the date for handing over. It says the application is granted pending determination of the application. Mr. Juma submitted that the applicant failed to discharge a burden of proving beyond reasonable doubt that the 4th respondent really defied the court order given on 23rd February 2024 which would necessitate the court to issue summons to the managing director of the 4th respondent. He eventually prayed that the court dismiss the application in its entirety with cost. Dissatisfied with the reply to submission, Mr. Masumbuko rejoined. He attacked the Mr. Juma's act of adopting the affidavit of Jamila Juma Kimvuli by submitting that she is not a managing director of the 4th respondent. It was the applicants' counsel rejoinder that Ms. Kimvuli is not Akif Halit Kara whom the summons is sought for. He lamented that she is mentioning a lot about Akif Halit Kara or managing director, but there is not supporting affidavit of Akif Halit Kara. In his view that is hearsay. He invited the court to disregard the said counter affidavit. 6 Thereafter, he rejoined on two things, one is about burden of proof, which is conceded to be ok. He added that, that is why the applicants are praying for summons to call upon Mr. Akif Khalid Karta to show cause. He clarified that the court order was for status quo ante meaning before the eviction. They were supposed to vacate the premises on 24th February 2024. He submitted that there was no need of the court order to state the date for handing over. It was his view that the 4th respondent has proved that they are still in the premises. They are not refuting that. He submitted that the applicants have discharged the burden of proof. With that he prayed the application be granted. The court has attentively heard the submissions by the parties. In this application in which the court was moved under the provisions of Sections 68(e), 95, Order XXXVII Rule 2(2) of the Civil Procedure Code [Cap 33 R.E. 2019] Section 114(1) (k) and 114A (b) of the Penal Code [Cap 16 R.E. 2019]. The applicants are seeking an order from this court directing summons to Mr Akif Halit Kara or any other director of the 4th respondent to appear before this court and show cause why he should be committed to civil prison for contempt of court. There is no dispute that the court on 23rd February 2024 issued the order of maintenance of status quo ante. It is equally undisputed that the 4th 7 respondent has not handed over the suit property to the applicants. The issue here is whether the act of not handing over the property until now is a disobedience of court order given on 23rd February 2024. While the applicants have relied on the affidavits of Kotak and Aidan to show the attempts that the applicants undertook to ensure that the 4th respondent implements the court order. Paragraph 6 of the applicants' affidavit show these attempts. The 4th respondent through affidavit of Kimvuli on paragraph 10 admit that the applicant used City Mail to directly deliver the court order to the 4th respondent. But the 4th respondent claims that the applicants' have been effecting service of documents upon the 4th respondent through her advocate. It should be pointed out here that the ruling on 23rd February 2024 was delivered in the presence of counsel for both applicants and the 4th respondent. One cannot say that the latter was not aware of the court order for maintenance of status quo ante. What is found on paragraph 10 and even the other paragraphs of the Ms. Kimvuli's affidavit is admission that the court order has not been executed. Mr. Juma for the 4th respondent has argued that this court's order dated 23rd February 2024 did not direct either the applicant to conduct hand over on the said date nor it did order the 4th respondent to hand over the premises on the said date. While it is true that the court did not state the date for handing 8 over, but prudence will dictate that the handing over has to be done within reasonable time. It will be a failure of justice if the order given would have remained unexecuted until the main application is determined. Quite contrary to what Mr. Juma has submitted the applicants proved that they had sent the letter asking the 4th respondent to hand over premises as pert court order pending determination of the application. If the date suggested by the applicants was not convenient to the 4th respondent, it was upon her to notify the applicants as to when it is convenient to execute the court order. In my view the applicants have managed to establish beyond reasonable doubt that the 4th respondent defied this court's order. The order was given on 23rd February 2024 it is now towards the end of May. Aboud 90 days have lapsed / since the date the order was issued. It is the law that where a person not a party to the suit, disobeys a lawful order of the court, that person has to be formally charged under the Section 124 of the Penal Code [Cap 16 R.E. 2019] and will be given an opportunity to show cause why should not be committed to prison as a civil prisoner. That was held in Yusuph Shaban Luhumba (supra) at page 12. It is also clear that contempt of court is prescribed by Section 114 of the Penal Code [Cap 16 R.E. 2019]. 9 In lieu of the foregoing the court finds merit in the application at hand. It proceeds to order that the summons be issued against the 4th respondent's managing director one Akif Halit Kara to appear and show cause why he should not be committed to Civil Prison for disobeying this court order given on 23rd February 2024. I should that Court orders must be respected. If a party is aggrieved by a court order, he has an option to challenge the order but not remaining mute or ignoring the said order. In the end court order as follows: 1. The application is granted. 2. Summons be issued against the 4th respondent's managing director, Mr. Akif Halit Kara to appear before this court and show cause as to why he should not be committed to civil prison for disobeying court order given on 23rd February 2024. 3. Each party shall bear its costs. Order accordingly. io DATED at DAR ES SALAAM this 24th Day of May 2024 Date: 24/05/2024 Coram: Hon. U. J. Agatho, J For the Applicants: Roman Masumbuko, Advocate For the 4th Respondent: Bakari Juma, Advocate B/C: E. Mkwizu Court: Ruling delivered today 24/05/2024 at 11:00 A.M. in the presence of Roman Masumbuko, advocate for the applicants, and Bakari Juma, advocate for the 4th respondent. JUDGE 24/05/2024 li