INDUSTRIAL GASES CHEMICALS LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA REFERENCE NO. 24806 of 2024 INDUSTRIAL GASES AND CHEMICALS LTD…………………..…..…1ST APPLICANT MADAKA HOLDINGS LTD………………………………………………..2ND APPLICANT PAMBA INDUSTRIES LTD………………………………………………..3RD APPLICANT VERSUS AZANIA BANK LIMITED………………………...…………………….1ST RESPONDENT MAJEMBA COMPANY LTD…………………………………………….2ND RESPONDENT RULING 08th October & 18th October 2024. Kilekamajenga, J. The applicants have been common in our corridors since they filed their case in this court through Civil Case No. 02 of 2020. They failed to prove their claim against the first respondent and the case was so decreed on 09th June 2022. Unhappy with the decision, they appealed to the Court of Appeal of Tanzania. Again, they lodged another suit against the first respondent in this court vide Land Case No. 55 of 2022 which was struck out for being res judicata. They later applied for stay of execution in the Court of Appeal through Civil Application No. 886/08 of 2023 which was struck out on 19 th July 2024 for being filed out of time. While the appeal was pending before the Court of Appeal of Tanzania, the first respondent commenced the execution process as there was no order to stay the execution. In the execution process, the second respondent was engaged to sale the 1 property on Plots No. 33 and 47 within Nyakato Industrial area which were pledged by the applicants to secure a loan, which has not been serviced to the fullest until now. Perplexed by the execution process, the applicants filed in the District Land and Housing Tribunal, Misc. Land Application No. 298 of 2023 seeking permanent injunction against the respondents from selling the mortgaged properties. In response, the respondents filed an objection arguing that the case was determined by the High Court in Civil Case No. 02 of 2020 and Land Case No. 55 of 2022 therefore the application before the District Land and Housing Tribunal was res judicata. The respondent further argued that, as there was an appeal in the Court of Appeal, the District Land and Housing Tribunal lacked jurisdiction to determine the matter and at worst, it was an abuse of court process. Nevertheless, the parties prayed for the objections to be argued by way of written submissions. The trial chairman scheduled the submission dates and the case was placed for ruling on 20th August 2024. Conversely, the chairman went further restrained the respondents from selling the mortgaged properties. Before the ruling, the respondent proceeded with the execution process prompting the applicants to file Miscellaneous Application No. 238 of 2024 condemning the respondents for disobedient of court (tribunal) orders. The trial chairman was placed in dilemma and sought guidance from this court by way of reference on whether the tribunal’s order contradicted the decision of the High Court and/or Court of Appeal. The chairman further wanted to ascertain 2 whether the tribunal was clothed with jurisdiction to determine Misc. Land Application No. 238 of 2024. Before the hearing of this application, the parties were invited to address the court on the dilemma occasioned by the applicants’ perennial applications. The learned advocate, Mr. Kulwa Samson insisted that the District Land and Housing Tribunal has jurisdiction to determine Land Application No 298 of 2023 because it is a different case from the one pending before the Court of Appeal of Tanzania. In his view, in civil case No. 02 of 2020, the dispute between the parties was not resolved. On the other hand, the learned advocate, Mr. Elias Hezron emphatically argued that, it was wrong to file the case in the District Land and Housing Tribunal because the issues arising from the contract between the parties were resolved in civil case No. 02 of 2020. He further argued that, the applicants filed land case No. 55 of 2022 which was struck by this court on the same reason that the main cause of action was decided by this court. Moreover, as there was an appeal in the Court of Appeal, the applicants were not justified to file another case in any other court. Also, the applicants filed an application for stay of execution through Civil Application No. 578/01/2024 which is pending for ruling. It was therefore not prudent for the applicants to lodge another case in the District Land and Housing Tribunal while there is an appeal in the Court of Appeal. 3 When rejoining, the applicants’ counsel reiterated that the District Land and Housing Tribunal had jurisdiction to determine the application because there was a new cause of action. In this application, the chairman of the District Land and Housing Tribunal has moved this court to provide guidance on whether the tribunal’s order contravened the decision of the High Court and/or Court of Appeal and whether the respondents are justified to execute the decision in Civil Case No. 02 of 2020. In the interest of justice and consistency, I wish to address the two issues simultaneously. I have already narrated the backdrop of this case. In fact, I find it as a waste of precious time for this court to reiterate further what happened in Civil Case No. 02 of 2020. However, in the interest of justice, I will do. In that case, the applicants sought the following orders: 1. Declaratory order that the defendant’s (1st respondent) notices of default are invalid. 2. Declaratory order that the plaintiffs (applicants) are not indebted the alleged Tshs. 1,750,018,374.37/=. 3. Declaratory order that the alleged and intended recovery measures against the plaintiffs are premature and unlawful. 4. An order of mutual calculations of the alleged debt and outstanding between the 1st plaintiff and the defendant, if any, in accordance with terms of mortgage deeds. 5. Costs of this suit; and 6. Any relief that this court shall deem just to grant. During the trial, the court framed the following issues for determination: 4 1. Whether the defendant (1st respondent) is entitled to lay any claim against the plaintiffs in respect of the credit facility and mortgages by and between the plaintiff and Bank M. Tz Ltd. 2. If the first issue is affirmatively answered, whether the notices of default that form No. 4A issued by the defendant to the plaintiffs are lawful and valid. 3. Whether the defendant is entitled to dispose of Plots Nos. 33 and 47 Nyakato Industrial Area, Mwanza. 4. Whether as at December, 2019, the plaintiff (applicants) were in default of Tshs. 1,750,081,374.37/=. 5. To what reliefs are the parties entitled. After an extensive and judicious analysis, this court finally concluded the first, third, fourth, and fifth issues in the affirmative. Precisely, this court stated that; ‘I therefore, answer the first issue in affirmative that the defendant is entitled to lay any claim against the plaintiffs in respect of the credit facility and mortgages by and between the plaintiffs and the Bank. The determination of the first issue covers also the 3rd, 4th and 5th issues which are answered in the affirmative as well.’ To put the above decision in context, the first respondent is entitled to lay any claim against the applicants; the first respondent is entitled to dispose of plots Nos. 33 and 47 Nyakato Industrial Area; the applicants were in default as of December 2019. Only the second issue was found to be in favour of the applicants, that the default notice from the first respondent was invalid and of no legal effect. After the above decision, alas, the applicants have been playing the wicked games of trying to delay justice. They appealed 5 to the Court of Appeal; they also filed Land Case No. 55 of 2022 which was unsuccessful. Their application for stay of execution was struck out and the first respondent moved for execution. Having realised that their dirty ruses were known to the High Court, and their appeal was pending in the Court of Appeal, the applicants went back to the District Land and Housing Tribunal and filed Land Application No. 298 of 2023 based on the same cause of action. It is embarrassing to the legal profession for the applicants to be so lured by advocates who do not abide by their ethics. The law is settled, whenever a party lodges a notice to the Court of Appeal, lower courts, including the High Court, cease to have jurisdiction to determine the matter save for execution procedures. There is a plethora of cases on this principle of the law such as the cases of Serenity on the Lake LTD v. Dorcus Martin Nyanda, Civil Revision No. 1 of 2019; Tanzania Electric Supply Company Limited v. Dowans Holdings S.A. (Costa Rica) and Dowans Tanzania Limited (Tanzania), Civil Application No. 142 of 2012; Awiniel Mtui and Three Others v. Stanley Ephata Kimambo (Attorney for Ephata Mathayo Kimambo), Civil Application No. 19 of 2014. All these cases held that: ‘…once a notice of appeal has been duly lodged, the High Court ceases to have jurisdiction over the matter.’ I should further emphasize that, execution in the High Court was not barred and it was therefore right for the respondents to proceed with the execution process. In the case of CRDB Bank PLC v. Finn W. Petersen and 3 Others, Civil Application No. 367 of 2017, the Court of Appeal stressed that: 6 ‘…the legal position remained to be that unless stay of execution is sought and granted by the Court execution at the High Court will proceed.’ In line with the above position, therefore, the District Land and Housing Tribunal has no jurisdiction to handle this matter nor order the stay of execution because the appeal is pending in the Highest Court of the land. Doing so would be usurping powers that the tribunal does not deserve. Again, the District Land and Housing Tribunal committed a serious misdirection by ordering the stay of execution on the decision of the High Court. In passing, I wish to labour on the abuse of court processes engineered by unscrupulous parties and especially advocates. It is unprofessional for an advocate to institute proceedings that are motivated by malice or are intended to delay the process of justice. Doing so amounts to abuse of court processes. See, Regulation 92(2)(a) of the Advocates (Professional Conduct and Etiquette) Regulations of 2018. When addressing the issue of abuse of court processes, the court in the case of Batistatos v. Roads and Traffic Authority of New South Wales [2006] HCA 27 stated that: ‘The first is that the public interest in the administration of justice requires that the court protects its ability to function as court of law by ensuring that its processes are used fairly by state and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.’ 7 I wish to reiterate that, judges and magistrates must protect innocent parties from the bullying of parties who use court processes for their interests. The abuse of the court process as this, if not deterred, renders the administration of justice and the legal profession in disrepute. It is a serious abuse of the court process for a party to re-litigate a case already determined on merit. Any serious decision-maker should not entertain this filthy game. In the case of Canadian Union of Public Employees v. City of Toronto and Attorney General of Ontario, 2003 SCC 63 the Supreme Court of Canada stated that: ‘Judges have an inherent and residual discretion to prevent an abuse of the court’s process. This concept of abuse of process was described at common law as proceedings “unfair to the point that they are contrary to the interest of justice” (R. v. Power, [1994] 1 S.C.R. 601, at p. 616), and as “oppressive treatment” (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, [1990] 3 S.C.R. 979, at p. 1007: ‘. . . abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. …But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice. …In Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44, this Court held that unreasonable delay causing serious prejudice could amount to an abuse of process. In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would . . . bring the 8 administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63). One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to re-litigate a claim which the court has already determined. [Emphasis added.] In conclusion, the District Land and Housing Tribunal lacked jurisdiction to handle a dispute that was pending in the Honourable Court of Appeal. Once a notice is filed in the Court of Appeal, the lower courts, including the High Court, cease to have jurisdiction over the matter. The execution process in the High Court can only be halted by an order of stay from the Court of Appeal. Also, the District Land and Housing Tribunal has no jurisdiction to order a stay of execution on the decision of the High Court. Therefore, the decision, order, and proceedings in Land Application No. 298 of 2023 and in Misc. Land Application No. 238 of 2024 are a nullity. The parties are hereby advised to wait for the determination of the appeal in the Court of Appeal. The respondents are at liberty to execute the decision of this court as there is no stay of execution from the Court of Appeal. The applicants should pay the costs of this application. It is so ordered. DATED at Mwanza this 18th Day of October, 2024. Ntemi N. Kilekamajenga JUDGE 9 18/10/2024 Court: Ruling delivered this 18th October 2024 in the presence of the counsel for the applicant, Mr. Ondijo Silvanus and the counsel for the respondents, Mr. Elias Hezron. Right of appeal explained to the parties. Ntemi N. Kilekamajenga. JUDGE 18/10/2024 10 11