tanzania ports authority and another vs leighton offshore pte limited 2021 tzhccomd 2034 23 march 2021

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 144 OF 2020 {Arising out of Commercial Case No. 114 of 2017) BETWEEN TANZANIA PORTS AUTHORITY...............................................1st APPLICANT THE ATTORNEY GENERAL....................................................... 2nd APPLICANT Versus LEIGHTON OFFSHORE PTE LIMITED......................................... RESPONDENT Last Order: 25" Feb, 2021 Date of Ruling: 23rd Mar, 2021 RULING FIKIRINI, J. This application by way of chamber summons has been brought under Order XXV Rule I, Order VIII Rule 23, Order XLIII Rule 2 of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC), and Rule 2(2) of the High Court (Commercial Division) Procedure Rules, 2012 (the Rules) and any other enabling provision of the law seeking for the following orders: 1. That the Honourable Court be pleased to make an order to depart from scheduling orders. 2. That the Honourable Court be pleased to order the respondent to 1 | Page provide security for costs in favor of the applicants in Commercial Case No. 114 of 2017 between Leighton Offshore Pte Limited, Tanzania Ports Authority and The Attorney General as the respondent is a foreign company with no immovable properties in Tanzania. 3. Costs of this application to be provided for.2. Any other relief this court deems fit to grant The application is supported by an affidavit of Ms. Neisha Shao, State Attorney for the applicants while the counter affidavit of Mr. Gerald Shita Nangi learned advocate for the respondent opposed the application. On 25th February 2021, when the matter was fixed for hearing of the application, Ms. Shao made the prayer to be allowed to amend the application by filing an affidavit from the Director of Legal Service for Tanzania Ports Authority (PTA). It was Ms. Shao's submission that, she noted that, she has forgotten to attach the affidavit from the Director of Legal Service of TPA, the affidavit which she believed to be very crucial to the application. In that regard, and as per Rule 24 (1) of the Rules, she prayed for leave to amend the application by filing another affidavit. ______ _ __ 2| Page Alternatively, she submitted that, she prayed to withdraw the application a per Order XXIII (2) (a) & (b) of the CPC with leave to re-file. Reacting to the submission, Mr. Nangi strongly opposed the grant of the application giving the reason that, the cited Rule 24 (1) of the Rules related to the plaint and pleadings but what was before the Court was not a plaint or pleadings and therefore, the provision did not apply. Mr. Nangi went on submitting that, Ms Shao was in actual fact not seeking for amendment but filing an affidavit from Director of Legal Service of TPA, which he was of the opinion that then tended affidavit should have been by way of supplementary affidavit. He therefore, prayed for the application not to be entertained as it was after thought. If they really wanted the affidavit to be filed, they would have done so since November, 2019 considering that, this application has been filed in September 2019, he pressed. On top of that, Mr. Nangi further submitted that, the applicants have also on an alternative prayed to withdraw the application under Order XXIII Rule 2(a) & (b) with leave to re-file. On the strength of his submission, Mr. Nangi submitted that, he has no objection for withdrawal of application but he prayed for the costs and 3|Page categorically objected to withdrawal of the application with leave to re­ file. Disputing the provision cited by the applicants' learned counsel, it was the respondent submission that, Order XLIII Rule 2 (a) (b) of the CPC did not exist in the CPC, instead the available provision was Order XXIII (1), 2 (a) & (b) of the CPC. He however, continued submitting that even if the applicants counsel was referring to this provision, it was his submission that, the same did not fit the application as the provision related to the suits. Concluding his submission, Mr. Nangi submitted that, the applicants seemed not intended to prosecute the application as they did not serve the respondent with the rejoinder submission which was filed before the Court on 1st December, 2020. The counsel, prayed that, the 1st prayer for amendment be refused and the 2nd prayer sought in alternative be allowed to withdraw the application with costs but without leave to re­ file. In rejoining submission, Ms. Shao, maintaining her earlier submission that the applicant be allowed to withdraw the application with leave to re-file. Admitting that, the cited provision was incorrect, she prayed to ____ .______ „.... ....... .... ... . ..... „._... . ..... ...... ..._. ............... _. _.M 4|Page correct the record by citing Order XXIII Rule 1, 2(a) and (b) of the CPC, which was the correct one. Disputing the respondent submission that, the provision only related to withdrawal of the suits; it was her submission that, the provision covered both suits and applications. To strengthen her position, she cited the case of CRDB Pic v Aziz Mohammed Aboud & Another, Miscellaneous Commercial Cause No. 275 of 2015 where Mwambegele J. as he then was, cited the case of East African Development Bank v Blue Line Enterprises Ltd. Miscellaneous Civil Cause No. 177 of 2007, in which it was stated that the provision was applicable to both suits and applications. Thus making the cited provisions as correct and giving this Court jurisdiction to permit the applicant to withdraw the application with leave to re-file the same. Submitting on the amendment issue, she submitted that, even though the Rule cited did not specifically identify powers to amend an application but generally identified powers of the Court to order any amendments it deemed fit and just, urged by the applicants' counsel. Contesting Mr. Nangi's assertion that, she has ample time to file the said affidavit, it was Ms. Shao's submission that, since filing of this application, it was a second time, she appeared in Court and she has 5|Page noted that, there was a missing affidavit and made the application promptly. Submitting in reply to the late service of rejoinder submission, it was her submission that, after noting that she forgot to attach the affidavit of the Director of Legal Services TPA and since she applied for withdrawal or amendment, she thought it was not wise to serve the respondent, however, later she found that, it was an error of judgment on her side as she was supposed to serve them. On that she apologized for the inconvenience caused. In objecting to the grant of costs, it was her submission that, since there was a suit pending before this Court as Commercial Case No. 114 of 2017, from which this application originated from. She thus prayed that the costs of this should follow the event. Finalizing her submission, it was Ms. Shao's submission that, both prayers will not prejudice the respondent in anyway and the applicant prayers were made timely before this Court. She prayed to be granted either of her prayers. Thorough and careful examination of the chamber summons, relief sought, affidavit in support and against and oral submission by the counsels on behalf of the parties, the only issue for determination before _________ _... _. _. .... _.. _..._. __________ _____ _ ______________ o 6| Page this Court is whether this Court should allow withdrawal of the application and grant leave to re-file the same. Before proceeding, it is well noted that, Mr. Nangi does not dispute the that the applicant can withdraw the application. What is disputed is the prayer to re-file the same. Rule 24 (1) of the Rules and Order XXIII Rule 1 (1) and (2) (a) and (b) of the CPC, both provide for different remedies related to suits and application. Under Rule 24 (1) of the Rules and specifically sub-rule (6) amendments of both suits and applications have been accommodated. There's nonetheless, nothing said of withdrawal with leave to re-file. For leave to withdraw the suit or application to be effected the provision of Order XXIII Rule 1 (1) and (2) (a) and (b) of the CPC, is where the applicant can be accommodated as alternatively prayed by the applicant. Order XXIII Rule 1(1) and (2) (a) & (b) of the CPC, provides that; "1(1) At any time after the institution of the suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the court is satisfied- (a)That a suit must fail by reason of some formal defect, or __________________________ ______________ V-t 7|Page (b)That there are other sufficient ground for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or party of the claim, it may, on such terms as it think fit, grant the plaintiffpermission to withdraw from such suit or abandon such part of the claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such party of the claim. "[Emphasis mine] Even though the word "application" or "applicant" are not directly mentioned but careful reading of the above provisions of law, it is indeed correct that impliedly, it indicates that the provision accommodates both suits and applications. The stipulation which, if the Court is satisfied inter alia that there are some formal defects which may render the suit or application to fail, the Court before which that suit or application is made may grant the plaintiff or applicant permission to withdraw the suit or application with liberty to institute the suit or application afresh. I, thus subscribe to the decision in the case of East African Development Bank, which was cited with approval in the case of CRDB Bank (supra), underscoring the fact that the provision applies to both suits and application when it stated that: "The CPC is not only applicable to the suit but to the application as well". . ............... ............................ __....................... .. _W 8|Page This Court in its rights mind does not find anything wrong or illegal when the applicant prayed not only for the permission to withdraw but also leave to re-file the application. In the case of Jennings- Bramy v A & F Contractors Ltd & Another [2003] 2 EA 452, cited in the case of CRDB Bank PLC (supra), the Court in elaborating on the application of the provision, held that: "A party who withdraw the suit without first securing leave to institute a fresh suit thereby bars himself from instituting a fresh suit. The court discretion to grant leave to institute a fresh suit as envisaged under order XXIII Rule (1) & (2) can only be exercised at the time when the withdrawal order is made and not after." [Emphasized mine] And this is what the applicants did that prior to withdrawing they applied for permission to either amend their application by bringing an affidavit of Director of Legal Service for TPA or in the alternative withdraw the application but with leave to re-file. Furthermore and aside from the cited provisions, the prayer for leave to withdraw and re-file if closely examined is founded on the right to be heard. This right is enshrined under Article 13 (6) (a) of the Constitution of United Republic of Tanzania, 1977 as amended from time to time. And in order for that to be observed the Court in carrying out its tasks, has to 9|Page fcr make sure parties are fairly and justly treated. Whilst rules of procedures are important to be followed as they are not there as ornaments or embroidery but to assist in smooth operation of the Court proceedings. The Court has nevertheless to balance the two, legal procedures in place on one hand and achieving substantive justice on the other. In the case of General Marketing Co. Ltd v A. A Shariff [1980] T.L.R 61, speaking loudly on this point had this to state that: "Rules of Procedure are handmaids ofjustice and should not be used to defeat justice." The applicants in this application have assigned only one reason that, the affidavit of the Director of Legal Service of TP A, was not filed in support of the application. The affidavit Ms. Shao believed to be very crucial to the application. The pertinent issue is whether the omission amounts to sufficient ground or formal defect envisioned under Order XXIII Rule (1) and (2) (a) and (b) of the CPC. The answer to this is undoubtedly yes; otherwise the provision would have no meaning. The rationale behind the right to withdraw is in essence t justice being searched, should not be defeated in any way. And once the plaintiff or the applicants as in this application have realized that, they are then allowed to retreat from that wrong direction and pursue the correct procedure. Otherwise it is wastage of time unless the other party is 10 | Page fcP prejudiced, which in this case the Court has not been availed with any concerns related to that. All the above have been considered in light of the amendment of section 3A and 3B of the CPC as well as Article 107 (2) (e ) of the Constitution, which provides that: "To dispense justice without being tied up with undue technical provisions, which may obstruct dispensation ofjustice" Despite the applicants' failure to properly move this Court by citing incorrect or incomplete provisions of the law, which under strict legal interpretation would have render the application incompetent and the Court would have been invited to struck out, the application. However, for the interest of justice and considering that the respondent will not suffer any irreparably loss which cannot be recovered in monetary terms, I, proceed to grant the application for withdrawal with leave to re-file 11|Page