CIVIL APPLICATION NO 287 16 OF 2022 SYMBION POWER TANZANIA LIMITED VS CITIBANK TANZANIA LIMITED ANOTHER

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA, J.A., MWANDAMBO. J.A. And MGONYA. J.A.^ CIVIL APPLICATION NO. 287/16 OF 2022 SYMBION POWER TANZANIA LIMITED.........................................APPLICANT VERSUS CITIBANK TANZANIA LIMITED.............................................. 1st RESPONDENT SYMBION POWER LLC......... ..................... .......................... 2 nd RESPONDENT [Application for Revision from the ruling and order of the High Court of Tanzania (Commercial Division) at Dar es Salaam] f Mkeha, J.1 dated the 30th day of March, 2022 in Commercial Case No. 100 of 2017 RULING OF THE COURT 7th & 9th May, 2024 MWANDAMBO. J.A.: It has been said time immemorial and repeated in many judicial decisions that speed is good but justice is better. The facts in this application which shall come to iight shortly are a true testimony of the above adage. The applicant Symbion Power Tanzania Limited is before the Court largely as a result of expediency over justice. The applicant was aggrieved by the decision of the High Court (Commercial Division) made on 30th March, 2022 in an application for execution in Commercial Case No. 100 of 2017 (the suit). She has preferred an application for revision. The application is predicated upon several grounds, amongst others, the applicant was not a party to the decree from the default judgment in the suit, subject of the application for execution from which the impugned decision was made. For easy appreciation of the matter, a brief background will be necessary. On 15th December, 2017, the High Court issued a default judgment in the suit against the second respondent in the sum of USD 1,901,907.22 payable with interest and costs. However, for reasons which are not relevant to this ruling, the first respondent could not execute the decree. On 23rd December 2021, the first respondent filed an application for execution of the decree before the High Court by way of an order prohibiting the Government of the United Republic of Tanzania (the Government) from paying USD 3,111,755.05 to the applicant payable to her under a settlement agreement entered in arbitration before ICSID between the applicant and the Government. It is plain from the application for execution that the decree holder sought the prohibitory order against a debt owed by the Government to the applicant because the applicant was a wholly owned subsidiary of the second respondent. Quite strangely, the application was followed by an affidavit justifying the move. It is discernible from that the said affidavit was intended to show that the applicant and the second respondent were one and the same entity to justify the mode of execution in the application for execution. Apparently, neither the Government nor the applicant were made parties to that application. All the same, the High Court summoned both the Government and the applicant for the hearing of the said application. At the hearing of that application, the Government, through the Solicitor General denied being indebted to the applicant and declined taking part in the proceedings. On the other hand, the advocate representing the applicant informed the executing court of her unpreparedness to file any counter affidavit and take part in the execution proceedings since she was not a party thereto. The above notwithstanding, the learned judge was resolute to determine the application. Before doing that, he considered it necessary to resolve the issue whether the applicant and the second respondent were one and the same thing which he answered affirmatively. He made the finding relying on the affidavit, annexures thereto and oral address by the decree holder's advocate. From that finding, the learned judge concluded that the applicant's properties were liable to attachment in execution of the decree against the second respondent in terms of section 48 of the Civil Procedure Code. It is from the foregoing background the applicant lodged the application for revision moving the Court under section 4 (3) of the Appellate Jurisdiction Act (the AJA) to call for and examine the record of proceedings of the High Court in the suit to satisfy itself as to the correctness, legality or propriety of the decision of the High Court made on 30 March 2022. Paraphrased, ground one in the notice of motion states that the order of the High Court is problematic for being made against the applicant who was neither a party to the proceedings in the suit nor a party to the execution proceedings. The application was supported by the affidavit of the applicant's erstwhile advocate who also filed written submissions. The first respondent resisted the application through an affidavit in reply and the corresponding written submissions in reply. The second respondent did not file any. At the hearing, Messrs. Jeremia Mtobesya and Gaspar Nyika, learned advocates, appeared representing the applicant and first respondent respectively. The second respondent on whom notice was earlier on directed to be served by publication defaulted appearance. Satisfied of the existence of proof of publication of the notice in two issues of Mwananchi and the Guardian Newspapers pursuant to the Court's previous order, the Court proceeded with hearing of the application in the absence of the second respondent pursuant to rule 63 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). At the very outset, Mr. Nyika rose to concede to the application on the basis of ground one in the notice of motion. The learned advocate was candid that the applicant was condemned unheard in the application for execution in which he was not a party. Counsel urged the Court to grant the application but without an order for costs considering the concession. Apparently, Mr. Mtobesya did not press for costs. Ordinarily, it would have been unnecessary to go into details, but we are constrained to make a few remarks considering the problematic manner in which the learned judge of the High Court dealt with the application for execution. First, irregular admission of an affidavit instead of dealing with the application for execution on its own and making the prohibitory order as the mode of execution sought therein subject to being satisfied that it was in conformity with the law. Secondly, holding that the applicant's properties, in this case, the debt allegedly due to her from the Government were liable for attachment in execution of a decree against the second respondent. That was made without affording the applicant a hearing on the question whether or not the applicant and the judgment debtor were one and the same thing. The High Court made the order in contravention of Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 discussed in a plethora of authorities including; Mbeya - Rukwa Autoparts and Transport Limited v. Jestina George Mwakyoma [2003] T.L.R. 251. From the authorities, it is trite principle that an order made in violation of the right to be heard is illegal regardless whether or not the outcome would have been the same had the party been afforded a hearing. The order made by the High Court, subject of the application for revision cannot be an exception. It was illegal. Accordingly, in exercise of the Court's power under section 4 (3) of the AJA, we grant the uncontested application and quash the order made by the High Court on 30 March 2022 in Commercial Case No. 100 of 2017 for being a nullity. Going forward, we remit the record to the High Court to deal with the application for execution in compliance with the law. Mindful of the stance taken by Mr. Mtobesya, we make no order as to costs. Order accordingly. DATED at DAR ES SALAAM this 9th day of May, 2024. S. A. LILA JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 9th day of May, 2024 in the presence of Mr. Jeremia Mtobesya, learned counsel for the applicant and holding brief for Mr. Gaspar Nyika, learned counsel for the respondent, is hereby certified as a true copy of the original. ■^ 30, 0. H. KINGWELE DEPUTY REGISTRAR jn m COURT OF APPEAL 7