ondernemers voor ondernemers ovo vs think tank investment ltd 2023 tzhccomd 347 26 october 2023

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 83 OF 2023 BETWEEN ONDERNEMERS VOOR ONDERNEMERS (OVO)............ PLAINTIFF VERSUS THINKTANK INVESTMENT LIMITED............................ DEFENDANT RULING: Date of last order: 03/10/2023 Date of Ruling: 26/10/2023 MKEHA, J The dispute between the parties arises from an agreement containing amongst other terms, the following term: "The Agreement shall be governed by, construed and performed in accordance with the laws of Belgium. In the absence of a solution (sic sub 8, any dispute, disagreement or claim arising out of or relating to the Agreement, as the case may be, as well as their execution and performance, shall be brought before the i judges and courts of Brussells." Because of the foregoing term, Mr. Joseph Kipeche learned advocate for the defendant preferred a preliminary point of objection to the effect that this court has no jurisdiction to entertain the suit. Although the learned advocate had raised and argued two other objections, I intend to deal with only the objection touching jurisdiction which I consider to be determinative of the controversy between the parties. In the course of submitting in support of the objection, the learned advocate relied on section 7 of the Civil Procedure Code which provides that the courts shall have jurisdiction to try all suits of Civil nature excepting suits which their cognizance is either expressly or impliedly barred. To strengthen his argument, the learned advocate cited the decision of the Court of Appeal in SUNSHINE FURNITURE CO. LTD VS. MAESRK (CHINA) SHIPPING CO. LTD AND ANOTHER, CIVIL APPEAL No. 98 of 2016 where it was held that, by that provision (section 7 of the Civil Procedure Code), a court by not entertaining a suit the cognizance of which has either been expressly or impliedly barred, this includes a suit arising from a dispute which by agreement, the parties have agreed to be determined by a court of their choice, being it local or foreign 2 court. On the basis of the submission hereinabove, the learned advocate urged the court to strike out the suit. The learned advocate for the plaintiff submitted in reply that, save for the choice of the courts in Belgium by the parties this court has jurisdiction to try the matter. The decision in SCOVA ENGINEERING S.p. A & ANOTHER VS. MTIBWA SUBAR ESTATES LIMITED & THREE OTHERS, CIVIL APPEAL NO. 133 OF 2017, CAT AT DSM, was cited. Indeed, this court has jurisdiction to try the present suit. However, since under section 7 of the Civil Procedure Code suits of which their cognizance is either expressly or impliedly barred are excempted, I must refuse to assume jurisdiction not for want of jurisdiction but for the parties7 own agreement on the court at which their dispute should be referred for determination. For similar reasons, the Court of Appeal upheld the decision of this court to strike out a suit which had been filed at a court not chosen by the parties in their agreement. See the decision in SUNSHINE FURNITURE CO. LTD VS. MAERSK (CHINA) SHIPPING CO. LTD & ANOTHER (Supra). 3 For the foregoing reasoning, the preliminary point of objection is held to be meritorious though on different reasoning. Consequently, the suit is hereby struck out. I make no order as to costs. DATED at DAR ES SALAAM this 26th day of OCTOBER, 2023. JUDGE 26/10/2023 Court: Ruling is delivered in the presence of advocates for the parties. C. P. MKEHA JUDGE 26/10/2023 4