NSK OIL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB - REGISTRY]

AT ARUSHA LAND CASE NO. 68 OF 2023 NSK OIL AND GAS LIMITED.................................................. 1ST PLAINTIFF KAMALJEET MAHESH AGGARWAL.........................................2nd PLAINTIFF

VERSUS AZANIA BANK LIMITED.................................................... DEFENDANT

AR COMPANY LIMITED GO PROPERTY CONSULTANTS AND AUCTIONEERS.................................. 2nd DEFENDANT

RULING 4h & 30th September, 2024 I.e. MUGETA, J Order XXIII of the Civil Procedure Code Act provides: 1-(1) At any time after the institution o f a suit the plaintiff may, as against a/i or any o f the defendants, withdraw his suit or abandon part o f his claim. (2) Where the court is satisfied- (a) that a suit must fail by reason o f some formal defect; or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter o f a suit or part o f a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part o f a claim with liberty to institute a fresh suit in respect o f the subject matter o f such suit or such part o f a claim. (3) Where the plaintiff withdraws from a suit, or abandons part o f a claim, without the permission referred to in sub­ rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect o f such subject matter or such part o f the claim. Relevant to this case is rule 3, particularly that part which reads: - “...shall be precluded from instituting any fresh suit in respect o f such subject matter or such part o f the claim " One of the preliminary objections raised and disposed of by way of filing written submissions revolve around the above provision. That this suit

is incompetent as it had been filed in this court as land case No. 45/2021 which was withdrawn on 30/5/2022 before my learned sister justice B.K Phillip without leave to refile. The plaintiff's counsel Mr. Andrew Akyoo concedes about the withdrawal without leave to refile but he is of the view that the suit is maintainable. His reasons are that the two cases are based on different causes of action, reliefs and parties. In his submissions, counsel for the plaintiffs has demonstrates, and I agree that the reliefs and the parties between the two cases are somewhat different. I further agree with him that while in the withdrawn case the plaintiffs were three, in this case they are two. One Mahesh Inderpal Budhram Aggarwal is missing in this case. On part of the defendants in the former case, they included Mark Auctioneers and Court Brokers who in this case has been replaced by Adili Auction Mart Limited. In rejoinder, counsel for the 1st defendant, Mr. Martin Wanyancha, argued that in determining similarity of suits what matters is the cause of action. I agree. The law is clear that the bar to file a fresh suit relates to a fresh suit in respect of such subject matter or such part of the claim. The word subject matter, in my view, refers to the cause of action. Cause of action per the case of Stanbic Finance Tanzania Ltd v. Giuseppe Trupia and Chiara [2002] T.L.R 221 cited by

counsel for the 1st defendant means facts which give rise or occasion to a party to make a demand determined upon perusal of the plaint alone and its annexes. Therefore, the measure of similarity of cases for purposes of the limitations of filing a fresh suit under Order XXIII rule 3 of the CPC is the cause of action not reliefs claimed nor the nature and number of parties to the case. Reliefs can change and parties, like court brokers, can also change depending on the prevailing conditions at the time of filing the case. 3 In this case, it is undisputed that the cause of action stems from breach of the terms of the overdraft facility executed in 2016 restructuring the loan agreement entered into in 2012 involving mortgage of the plaintiffs' landed properties. It seems the loan has not been fully serviced and the defendants are about to auction the two houses pledged as securities to recover the unpaid part of the loan. As argued by the counsel for the 1st defendant, the plaintiffs are trying to challenge the intended sale of the pledged securities. According to the plaints in the two cases, the fact that in the former suit the cause of action was based on the loan facility is pleaded at paragraph 6 of the plaint. In this case, a similar cause of action is reflected at paragraph 3 of the amended plaint. The plaintiffs seek a declaration that the defendants have breached the

loan facility agreement letter executed in 2012 and extended by overdraft facility in 2016. Therefore, in terms of order XXIII of the CPC, since the former suit was wholly withdrawn without leave to refile, the plaintiffs are precluded from refiling a fresh suit on the same cause of action. I find the objection meritorious. It is upheld The second objection is that this court has no jurisdiction because one of the mortgaged properties is situated in Dar es Salaam. To argue his case, the counsel for the 1st defendant has relied on section 14 of the CPC which says suits shall be instituted in courts within the local limits of whose jurisdiction the property is situated. I have read the pleadings, it is my view that the learned counsel acted on a misapprehension of the law. It is pleaded without dispute that the mortgaged properties' location is karatu and Vijibweni, Dar es Salaam. In terms of section 15 of the CPC, both this court and courts in Dar es salaam have jurisdiction. That section reads: Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction o f different courtsthe suit may be instituted in any court within the local limits o f whose jurisdiction any portion o f the property is situate if, in respect o f the value o f the subject matter o f the suit, the entire claim is cognizable by such court. The

learned counsel for the 1st respondent Mr. Martin Wanyancha, ought to have read the whole of Part I of the CPC which concerns jurisdiction of courts to appreciate the complementarity of all the sections therein. Reading one section is isolation of others can be misleading, hence, the misapprehension. This objection has no merits. I overrule it. 5 Having upheld the first objection, I accordingly strike out this suit for incompetency. I do so with costs to the 1st defendant. I.C. MUGETA

JUDGE 30/ 09/2024 Court: Ruling delivered in chambers in the presence of Stephano Dominic, Advocate for the Plaintiff and Martin Wanyancha, Advocate for the 1st defendant and in the absence of the 2nd defendant. Sgd: I.C. MUGETA

JUDGE 30/ 09/2024 6