SAILING INTERNATIONAL LEASING LTD VS KISIRE TRANS LTD COMM CASE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL COURT DIVISION)

AT PAR ES SALAAM COMMERCIAL CASE NO. 9605 OF 2024 SAILING INTERNATIONAL LEASING LIMITED............................... PLAINTIFF

VERSUS KISIRE TRANS LIMITED...................................................................... 1stDEFENDANT CHARLES SIONG'O MWITA.................................................................. 2ndDEFENDANT EMMANUEL RYOBA KISIRE.................................................................. 3rdDEFENDANT THOMAS RYOBA KISIRE..................................................................... 4thDEFENDANT MWITA RYOBA KISIRE....................................................................... 5thDEFENDANT MGAYA RYOBA KISIRE....................................................................... 6thDEFENDANT

RULING Date oflast order:23/07/2024 Date ofruling: 23/08/2024 AGATHO, J.: This is a ruling in respect of a preliminary objection against the present suit on a ground that this case is Res Subjudice to Civil Case No 7862 of 2024 pending at the Resident Magistrate's Court of Mwanza at Mwanza which was filed on 19/04/2024 by the 1st defendant herein thus abusing Section 8 of Civil Procedure Code, Cap 33 (R.E 2019). i Initially, the defendants raised two preliminary objections however they later abandoned the second one so in that case I find it nugatory restating the second objection in this ruling. In pursuing this case, the plaintiff is represented by Advocate Elisante Frank and for the defendants is Advocate Godfrey Daniel Goyayi. The prosecution of this preliminary objection was done by way of written submissions. In their submission in favour of the PO the defendants submitted that according to Section 8 of the Civil Procedure Code, Cap 33, a court is barred from proceeding with the trial of the suit whose issues are directly and substantially in issue with a suit which is pending before a competent court involving same parties with the same claims, defence and reliefs sought. While quoting the case of Avodia Antipas Swai vs Asha Ahmed Jam & 4 Others, Misc Land Application No 07 of 2023, the learned counsel for the defendants listed the conditions requisite for a matter to be

considered to be res subjudice. The conditions will be determined in due course. It was his further submission that in both matters the subject matter is six units of buses. Also, that in both cases the claim is of breach of purchase agreement which means it is a similar cause of action. 2 In his reply, the learned counsel for the plaintiff at first refuted that the two matters are not similar arguing that this court has no concurrent jurisdiction with the Resident Magistrates' Court of Mwanza within which Civil Case No 7862 of 2024 is pending. Additionally, he submitted that in Civil Case No 7862 of 2024, the 1st defendant is claiming breach of contract entered on 23rd June 2023 while in Commercial Case No 9605 of 2024 the plaintiff is claiming breach of contract entered on 26th June 2023. The plaintiff added that even the reliefs sought are different in the two cases. After briefly arguing against the contention that the matter is res subjudice, the plaintiff took a considerable time expounding on the remedy available to courts upon finding that a matter is res subjudice. On this the learned advocate cited with approval the case of CRDB Bank Limited vs Tanga Hardware & Auto parts Ltd and 6 Others, Civil Appeal No 104 of 2023 stating that the remedy of a case found to be res sub-judice is to stay the subsequent cause and not to dismiss it. There was no

rejoinder filed. Determination of this matter will solely base on the law as cited by the learned counsel from both sides as well as case law as against the record of 3 the case. The principle of Res Subjudice is derived from Section 8 of the Civil Procedure Code [Cap 33 R.E. 2019] which provides as hereunder:- "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" First and foremost, there is no dispute that the Plaintiff and Defendant herein are both parties to a tripartite Receivable Purchase Agreement (RPA). Similarly, the parties are at one that, there are two pending cases in two different courts with competent jurisdiction. Also, that the two rival parties in this matter which are the plaintiff and the second defendant are also rival parties in the ongoing matter at Mwanza regarding the same subject matter under the same cause of action. I am alive of the fact that for a principle of Res Subjudice to apply, parties in a previously filed matter must be the same as the ones in the subsequent matter. In the circumstances of this case, while I

agree that Yutong Hong Kong Limited was a party in the case at Mwanza and does not 4 feature as a party directly in this case, but in studying the pleadings especially the plaint of this Commercial Case No 9605 of 2024, one will find that Yutong Hong Kong Limited is directly involved with the matter at hand as much as she is involved with the matter at Mwanza that is Civil Case No 7862 of 2024. In this case, it is not difficult to gather that the subject matter or key issues in both suits are substantially the same. On this point, I find persuasion in the wording of Mwambegele J (as he then was), in the case of Wengert Windrose Safaris (Tanzania) Limited vs Minister for Natural Resources and Tourism & Another (Misc. Commercial Cause 89 of 2016) [2016] TZHCCommD 41 where this very court observed that "In my considered view, the substantiality and directness of the suits is not to be determined on the basis of the remedies sought in either of the suit but on the subject matter or key issues in both suits; that is, the one before the Court of Appeal and the one before this court". This court in the case of Avodia Antipas (Supra) while interpreting the section quoted above, jotted the following conditions which must co­ exist for a matter to be res subjudice, they are:- 5 (i) There must be two suits, one previously instituted and the other subsequently instituted. (ii) The matter

in issue in the subsequent suit must be directly and substantially in issue in the previous suit. (Hi) Both the suits must be between the same parties or their representatives. (iv) The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in any other court in Tanzania. (v) The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit. (vi) Such parties must be litigating under the same title in both the suits. According to the background, the 1st defendant had entered into a tripartite sale agreement with Yutong Hong Kong Limited and the plaintiff herein for a purchase of six units of buses. The misunderstanding arising from this contract is what culminated into the litigation in Civil Case No 7862 of 2024 and the current Commercial Case No 9605 of 2024. This can be 6 readily gleaned from the parties' pleadings such as in the plaint filed in this case Commercial Case No 9605 of 2024 where the plaintiff under paragraph ten declares that the present case relates to the Receivables Purchase Agreement entered on 23rd June 2023 and 26th June 2023. Paragraph 10 reads as follows "That further on 2&h June 2023, plaintiff entered into a tripartite agreement on one side with Yutong Hong Kong Limited and on the other side with the 1st Defendant an agreement known as

Receivables Purchase Agreement (RPA) which is parallel to the Sales Agreement number SL-YT-KTL-RP-2023-0620. In the said agreement the Plaintiff was assigned to receivables owned by Yutong Hong Kong Limited from the sales agreement entered on 23rd June 2023 for an outstanding sum of USD Five Hundred Thirty Two Thousand and Seven Hundred ($532,700)" The above similar storyline can also be extracted from the plaint by the 1st defendant in Civil Case No 7862 of 2024 of Rms Court at Mwanza under paragraphs 5,6 & 7. Having observed that much, it is without doubt that the preliminary objection is merited and in the circumstances of the two pending cases, 7 Commercial Case No 9605 of 2024 pending in the High Court Commercial Division is hereby stayed pending determination of Civil Case No 7862 of 2024 filed on 19th April 2024 at the Resident Magistrates Court of Mwanza. Costs to follow the event in the main suit. Order accordingly. DATED at DAR ES SALAAM this 23rd Day of August 2024. U. J.AGATHO

JUDGE Date: 23/08/2024 Coram: Hon. U. J. Agatho J. For Plaintiff: Elisante Frank, Advocate For Defendants: Godfrey Daniel Goyayi, Advocate. C/Clerk: E. Mkwizu Court: Ruling delivered today this 2rd August 2024 in the presence of Elisante Frank, counsel for the Plaintiff, and Godfrey Daniel Goyayi learned counsel for the Defendants. U. J. AGATHO

JUDGE 23/08/2024 8