SINANI BUILDING CONTRACTORS LTD VS CRDB PLC MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL CAUSE/APPLICATION NO. 163 OF 2023 (Arising from Ex-parte Stay Order in Civil Application No. 662/16 o f 2022 a n d Commercial Case No. 114 o f 2020) SINANI BUILDING CONTRACTORS LTD ................... I s t APPLICANT MOHAMED SAID SINANI.......................................... 2 n d APPLICANT ASMA MOHAMED SINANI......................................... 3 r d APPLICANT VERSUS CRDB BANK P LC ..................................................... 1s t RESPONDENT ACCURATE RECOVERY AND AUCTIONS LTD ..........2n d RESPONDENT RULING Date o f last order: 0 5 /0 4 /2 0 2 4 Date o f ruling: 2 3 /0 4 //2 0 2 4 AGATHO, J.: This ruling was triggered by the respondents' preliminary objection (POs) raised against the applicant's application. The POs were that: 1. To the extent that the applicant alleges that there is appending Civil Appeal No. 394 of 2022 at the Court of Appeal of Tanzania in relation to this matter, this court lacks jurisdiction to entertain this application as Aero Helicopter (T) Limited v. F.N. Jensen [1990] TLR 142. i 2. To the extent that the applicant alleges contempt of an order of the Court of Appeal of Tanzania by Hon. Mwandambo, J.A., dated 9th November 2022 in Civil Application No. 662/16 of 2022, this court lacks jurisdiction to entertain this application, see the case of Yusuph Shaban Luhumba v. Happiness John & 3 Others, Civil Appeal No. 304/14 of 2022. 3. In the alternative, but without prejudice to the point no. 1 and 2 above, to the extent that there is no pending execution before this court, this court lacks jurisdiction to entertain this application in terms of Section 38(1) of the Civil Procedure Code [Cap 33 R.E. 2019]. See also the case of East African Development Bank v Naura Spring Hotel Limited & 3 Others, Misc. Commercial Application No. 33 of 2023. 4. To the extent that the applicant has cited the penal provisions of Section 114(2)(k) and 114A(b) of the Penal Code [Cap 16 R.E. 2019], that are related to criminal proceedings, this court lacks jurisdiction to entertain this application. See the case of Felix Mosha & 2 Others v. The Capital Markets and Securities and another, Misc. Civil Cause No. 16 of 2011. 2 5. To the extent that the applicant is seeking orders against the 1st respondent's Managing Director who is not a party to this application, thus this application is incompetent and improper before this court. To begin with, it is worthwhile to stet that the parties were duly represented by learned advocates. Whereas Mr. Roman Masumbuko, represented the applicants, Mr. Gaspar Nyika stood for the respondents. As for synopsis of the application, the applicants filed the application at hand praying for the court among things to issue summons to the 1st respondent's Managing Director to appear before it and show cause why he should not be convicted of contempt of the court and detained as a civil prisoner for disobedience of the lawful order of the court (CAT) dated 9th November 2022 by Hon. L.J.S Mwandambo, Justice of Appeal in Civil Application No. 662/16 of 2022. It is on record that on 22nd November 2022 the respondents filed a notice of preliminary objection on the points of law as above stated. The respondent in their submission abandoned the point of preliminary objection (2) on contempt of court, and hence argued the remaining four POs. While the submissions of the counsel representing the parties are appreciated, this court will not reproduce the said submissions. Rather, where necessary 3 reference will be made to them. Moreover, it should be pointed out here that the POs being points of law, if sustained they can dispose the case. That is principle enunciated in Mukisa Biscuits case. Furthermore, it is undisputed that a PO on jurisdiction is fundamental that ought to be determined first. Owing to its fundamentality can it even be raised by the court suo motu. See Richard Julius Rukambura v. Issack Ntwa Mwakajila & Tanzania Railways Corporation [2007] T.L.R. 91. But in the case at hand the respondents raised it. Since jurisdiction is a critical PO, the court will focus on that PO if found to have merit then there will be no need of examining other POs. The three POs 1, 3, and 4 are about jurisdiction. For reasons found in each PO, the respondents are claiming that this court has no jurisdiction to entertain the present application. These are treated herein below. The first PO is to the extent that the applicant alleges that there is appending Civil Appeal No. 394 of 2022 at the Court of Appeal of Tanzania in relation to this matter, this court lacks jurisdiction to entertain this application as held by the CAT in Aero Helicopter (T) Limited v. F.N. Jensen [1990] TLR 142. Whenever there is notice of appeal to appeal to CAT, this court ceases to have jurisdiction over the matter except in limited 4 circumstances such as application for leave to appeal to CAT, and execution. The applicant has contended that this court has jurisdiction to entertain the matter because there is no law barring it from dealing with contempt of court allegations. The issue here is not whether the court has generally power to deal with contempt of court allegations, rather whether the stay of execution order by Hon. Mwandambo J. A. in the CAT precludes this court from dealing with contempt of court anchored on allegation of attempting sale of applicants' properties by decree holder (respondents) while the stay of execution order is in force. The court is of the view that it ceases to have jurisdiction because the contempt of court ought to have been brought under Section 38(1) of the CPC. And if that had been done then it would have been part of execution proceedings which would contravene the CAT order staying the execution in the first place. That is probably why the applicants did shy away from citing Section 38(1) of the CPC. The court joins hand with the holding in Raym ond Focus M lay v. Furahini Josep h Lem a & A nother, Misc. Land Application No. 241 of 2022. A word or two should be stated on the applicant's reliance on KCB Bank T anzan ia Lim ited & A n o th e r v. D elina G en eral Enterprise Lim ited, C om m ercial R eference No. 24 o f 2022, HCCD. First, the facts 5 of that case are distinguishable from the case at hand. KCB's case (supra) did hold that contempt of court falls under exceptions provided under the law giving the High Court jurisdiction to entertain the matter despite presence of notice of appeal. Besides, and of importance, the present case arises from execution in Commercial Case No. 114 of 2022 stayed by the CAT. And since the application against the alleged contempt of court is related to the execution that has been stayed, this court lacks jurisdiction to entertain it. The applicants have neither disputed that there is a pending appeal at the CAT, nor have they contested that there is no pending execution in this court. It is the law under Section 38(1) of the CPC that this court may have jurisdiction in civil contempt of court in execution proceedings if there is pending execution before it. That was rightly held by this court in East African Development Bank v. Naura Spring Hotel Limited & 3 Others, Misc. Commercial Application No. 33 of 2023 HCCD at DSM. It is conspicuous that the applicants never cited Section 38(1) of the CPC to give this court power to entertain the application. But then again there is no pending execution before this court. Advocate Roman Masumbuko's affidavit in support of the application avers in paragraph 2 that 6 Mwandambo J. A. ordered in Civil Application No. 662/16 of 2022 stay of execution of a decree in Commercial Case No. 114 of 2022 pending the appeal. The respondents were prohibited from selling the properties. The deponent made it clear that the respondents were attempting to sell the properties. That surely implies that the acts complained of by the applicants relates to execution of the decree in Commercial Case No. 114 of 2022. That brings into play the provisions of Section 38(1) of the CPC providing that all matters linked with execution must be determined by the court executing the decree not by filing a separate suit or application as done in this case. The applicants have cited Section 68, 95 and Order XXXVII Rule 2(2) of the CPC. This court concurs with the respondents' view that these provisions of the law are inapplicable in the application at hand. It is trite that Section 68(e) and Order XXXVII Rule 2(2) of the CPC are applicable only where the contempt alleged is in respect of an order for interim or temporary injunction. That was held in the case of Felix Mosha & 2 Others v. The Capital Markets and Securities and another, Misc. Civil Cause No. 16 of 2011. Regarding Section 95 of the CPC that is a catch all provision. It deals with inherent powers of the court. That law saves inherent powers of the 7 courts. It is not intended to save all ills in the administration of justice in civil cases as rightly held in Tanzania Electric Supply Company (TANESCO) v. Independent Power Tanzania Ltd (IPTL) & Two Others, Consolidated Civil Appl No. 19 of 1999 CAT (unreported) at page 15. . The court will thus not expend its energy to determine the last PO on criminal contempt of court brought under the provisions of the Penal Code [Cap 16 R.E. 2019] as the other POs have been sustained. In the end the court is found to have no jurisdiction to entertain the application at hand. The respondents deserve their costs. The courts thus orders: 1. the POs 1, 3 and 4 have been sustained. 2. the application is consequently dismissed for want of jurisdiction. 3. the 1st respondents shall have her costs. Order accordingly. DATED at DAR ES SALAAM this 23rd Day of April 2024. 8 Court: Ruling delivered today, this 23rd April 2024 in the presence of NobertTarimo, advocate for the applicant and Irene Ruchaki, and Juliet Bujulu, advocates for respondents. 9