DB SHAPRIYA AND CO LTD VS YARA T LTD MISC COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM. MISC. COMMERCIAL CASE NO. 349 OF 2017 (Arising from original Case No. 37 of 2016) DB SHAPRIYA & CO. LIMITED....................................... APPLICANT VERSUS YARA TANZANIA LIMITED ..........................................RESPONDENT RULING MRUMA, J: This is a ruling on preliminary objections and counter preliminary objections raised against each party's case. It all started with an application filed by the Applicant D.B. Shapriya seeking for the following orders: (i) That this honourable court be pleased to order the Respondent refrain from taking any adverse steps in contempt of court proceedings and in breach of contract including conducting arbitration proceedings touching the pending suit in this court i as the Respondent has already taken steps in Commercial Case No. 37 of 2016. (ii) That this court be pleased to issue a declaratory order to the effect that the on- going arbitration proceedings in the ICC filed by the Respondent on 15th July 2016 are illegal and in contravention of the court's order dated 19th May 2016 as they were initiated after this honourable court has resumed jurisdiction over the pending disputed in Commercial Case No. 37 of 2016 and the Applicant/ Respondent has already applied for a default judgment by filing Form No. 1 in accordance with Rule 22 (1) of the High Court (Commercial Division), Procedure Rules, 2012. Upon being served, counsel for the respondent filed a counter affidavit disputing the facts deponed in the affidavit in support of the chamber summons. Together with the counter affidavit, he filed a notice of preliminary objection containing five (5) preliminary points of objection namely:- i) That the Application is hopelessly time barred. ii) That the Application is incurably defective for being preferred under wrong provision of the law/non existing law. iii) That the court is functus officio iv) The matter is res subjudice and, 2 v) That the application is incurably defective affidavit that does not show place where it was signed contrary to the law. Counsel for the Applicant filed a reply to counter affidavit and he also filed a notice of preliminary objection challenging the counter affidavit as being incurably defective. On that ground he prayed this court to struck out the counter affidavit with costs. When the preliminary objections were called on for hearing I directed both sets be argued simultaneously starting with the preliminary objections raised by the Respondent's counsel against maintainability of the Applicant's application and thereafter the preliminary objection raised by the Applicant's counsel against the counter - affidavit of Nuhu Mkumbukwa, counsel for the Respondent. Submitting in support of his preliminary objections, counsel for Respondent contended that the Application for restraint orders was time barred because the law for such application is item 21 of the schedule to the Law of Limitation Act and the prescribed period is 60 days. The learned counsel stated that according to annexture DBS11, the Applicants were aware of the arbitration proceedings in the ICC since 22/7/2016 and because there is no specific law covering the situation, the law applicable is item 21 of the schedule to the Law of Limitation Act. To cement his stand, the learned counsel referred this court to several decisions of this court and the Court of Appeal in the following cases: 1. Civil Appeal No. 60 of 1998 between Tanzania Cotton Marketing Board vs. COGECOT cotton Company S.A. 3 2. Civil Revision No. 61 of 2003 between Tima Haji Vs. Amir Mohammed Mtolo & Another. 3. Commercial Case No. 54 of 2007 between Usangu Logistics (T) Ltd Vs. The Attorney General & Another and; 4. Misc. Commercial Cause No 380 of 2016 between Zamani Resorts Ltd Vs. Kempisk Hotels S.A It is the learned counsel's argument that all these cases emphasized the essence of complying with prescribed time. With respect to the third preliminary objection which is to the effect that this court is now functus officio to deal with the matter, the learned counsel contended that the same issues were raised orally when the court was determining the issue whether to stay the suit or not. In that respect, it is the learned counsel submission that the court decided that the issue could be raised in the Court of Appeal. Regarding the fourth preliminary point which is to the effect that the matter is res- subjudice the learned counsel submitted that the issue whether or not the matter is legally being arbitrated in the ICC is currently before the Court of Appeal, therefore it was wrong for the Applicant to come to this court to seek for orders touching arbitration issues which are currently litigated in the Court of Appeal. The learned counsel referred this court to the decision of the Court of Appeal in Civil Application No. 33 of 2012 between Mohamed Enterprises (T) Limited Vs. Masoud Mohammed Nasser and, its own decision in PC Civil Appeal No. 73 of 4 2004 between Theresia Zakaria Vs. Oscar Rwechungula. The learned counsel did not argue the 2nd preliminary objection and he abandoned the 5th preliminary objection. On his part Mr. Roman Masumbuko, counsel for the Applicant submitted that the preliminary objection raised by the Respondent's counsel are frivolous and they are intended to make this court turn a blind eye on the Application. The learned counsel submitted that this application has been brought under Rule 2 (1) of Order XXXVII of the Civil Procedure Code which provides for prevention of continuing breach. He said that Rule 2 (1) allows a party to bring an action at any time in order to prevent a continuing breach. He said that the subject of this application is a continue breach by the Respondent including initiating arbitration while there is an order of this court for the suit (i.e Commercial Case No. 37 of 2016) to proceed. On the allegation that this court is now functus officio to try the matter, the learned counsel stated that this court had never made an order which makes it funcuts officio to try and determine this application. He said that all authorities cited by the Respondent's counsel are irrelevant and not applicable. Regarding the allegation that this matter is re-subjudice, the learned counsel contended that it is not true that the Court of Appeal has been invited to deliberate on the same issue as the issue which is before this court. He said that the records of Appeal made available in this proceeding (i.e Annexture I to paragraph 19 of the counter - affidavit) shows that the 5 issue which is being litigated in the Court of Appeal is different from the issue which is currently before this court. In determining these preliminary objections I find it convenient to start with the preliminary objections raised by the Respondent's counsel because in my opinion, if any of them will be upheld it will have the effect of bringing to an end the entire application. In that regard I beg to deal with the fourth preliminary objection which is to the effect that this application is res- subjudice to Civil Application No 345 of 2016 now pending before the Court of Appeal. There is no dispute here that the records of Commercial Case No. 37 of 2016 are currently before the Court of Appeal. The records in the registry show that the files in Miscellaneous Commercial Application No. 55 and Original Commercial Case No. 37 of 2016 were submitted to the Court of Appeal on 7/2/2017. This means that the original records from which the present application emanates are currently in the Court of Appeal. In the proceedings before the Court of Appeal (Civil Application No 211 of 2016), the Respondent is seeking to impugne the orders of this court among others an order to allow Commercial Case No. 37 of 2016 to proceed. As indicated herein before the merit of the application or lack thereof is a matter to be considered in its totality and this will be in the event these preliminary objections have been determined and decided in the Applicant's favour. Thus Mr. Roman's argument that the preliminary objections raised are frivolous and are intended to make this court turn a deaf a dealt ear 6 and blind eye to the application has no place at this stage of the proceedings. At this stage I shall only direct my mind to the issue whether the Application is barred by the doctrine of res- subjudice. Black's Law Dictionary 7th Edition by Bryan A. Garner page 1439 the term sub­ judice is defined as a Latin word for "under a judge/' a matter or case that is before a judge or court for determination. This doctrine applies when it does, only to prevent discussion of the precise issue before the court. It is the rule that stops multiplicity of litigation and gives a boost to meaningful and serious litigants only. It is the Respondent's counsel contention in this regard that the prayers sought in the present application are at issue in the matter which is pending before the Court of Appeal, therefore this application is barred by the doctrine of res- subjudice. The counsel argued that the issue in contention are the same in both cases. In my view and upon considering this issue the present Application is barred by the doctrine of res- subjudice. Admittedly the parties are the same and the substantive issue (i.e reference of Commercial Case No. 37 of 2016 to arbitration) is the same. In the present application for instance, the Applicant is seeking for a declaration that the on-going arbitration in the ICC is illegal and in contravention of court order dated 19th May 2016. It is this very court order (i.e dated 19th May 2016), that is being challenged in the Court of Appeal in Civil Application No. 211 of 2016 which is now pending. 7 Section 8 of the Civil Procedure Code prohibits courts to try any suit or matter in which the issue thereof is also directly and substantially in issue in a previously instituted suit or matter between the same partiesr The Law says: "No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in Tanzania having jurisdiction to grant the relief claimed" As alluded before, here parties are the same and the matter in issue is submission to arbitration and is the same both in the present application and in the motion which is pending before the Court of Appeal. Thus, the present application is res- subjudice to Civil Application No 211 of 2016 which is pending before the Court of Appeal. Secondly, even if the matter was not re-subjudice, the competency of this court to try and determine it is questionable. This court derives its jurisdiction under Section 2 of the Civil Procedure Code (Cap 33 RE 2002). The said provision gives powers (jurisdiction) to this court to try and determine matters the proceedings of which are in the High Court. In the present application it is not disputed that the proceedings in Commercial Case No 37 of 2016 from which it originates are now in the Court of Appeal as they were forwarded to that court since 7/2/2017. It follows therefore 8 that from the date the records of proceedings were removed from the High Court Registrar the jurisdiction of this court over the matter ceased in terms of section 2 of the Civil Procedure Code. For reasons discussed herein above I find that the 4th preliminary has merits. Accordingly it is upheld and the Application is dismissed with costs. 4,*^- ~ A. R. Mruma Judge 11th April, 2018 9