vivo energy tanzania limited vs alchemist energy trading dmcc and 2 others 2021 tzhccomd 3297 9 july 2021

IN THE HIGH COURT OF THE UNITED

REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM MISC.COMMERCIAL APPL. N0.94 OF 2021 (Arising from Commercial Case No.76 of 2021) VIVO ENERGY TANZANIA LIMITED ■APPLICANT

VERSUS ALCHEMIST ENERGY TRADING DMCC-x--!* RESPONDENT NATIONAL BANK OF C0MMERCe<TD-^2^'RESP0NDENT ODDO BHF AKTIENGESELLCffAFT^X .3Rx RESPONDENT

RULING Date of Last Order:^9/07/2021 Date of Ruling ^""^09/07/2021. NANGEU,^^>>^.;;;^

K XX \This is rulingps in respect of an application filed by the Appljcgnt^ under a certificate of urgency. The application was brought under Order XXXVII Rule 2 (1) and Section 68(e) of the Civil Procedure Act, Cap.33 RE 2019. It was filed on this 9th day of July 2021 and, noting that it was filed as an urgent matter, I called it on for its hearing ex-parte. Mr Josiah Noah Samwel and Mr Dismas Mallya, learned advocates, appeared for the Applicant. Mr Joseph Page 1 of 8 Nuwamanya learned Advocate, appeared from the 2nd Respondent while the 1st and 3rd Respondents were absent. Submitting before the Court, Mr Samwel requested this Court to adopt the facts stated in the affidavit of Natasha Galabawa which supports the application. Briefly, it is averred, as facts which led to this application for interim orders that, ori^22nd September 2021, the Petroleum Bulk Procurement Ag'ency, (PBPA) executed a contract for importation ofj^various^quantities of petroleum products ^vtfitk variousC OilyMarketing Companies (OMCs). TheT-BPA^acShi^s. an agent of the OMCs advertised a<zTender\:No.PBPA/CPP/PMS/C3- KOJ/02/2021^for\suppl^ofsuch' various quantities of Following)jtie floatipg of such a tender and the com^pieto^^f^^e-'/tendering processes, the 1st Respondent emerged a winner. Subsequently, a shipping and Supply^Cpntract dated 5th January 2021 was signed between the PBPA and the 1st

Respondent. That contract was attached as annex VIVO-AF1. Based on the existing arrangements between the PBPA and the OMCs, and, the Applicant being one of the OMCs, the latter ordered a consignment of the intended petroleum products valued at USD 201,398.44 (7iw Page 2 of 8 Hundred and one Thousands Three Ninety Eight, Forty Four Cents'). The Agreed delivery date was between 27th February 2021 and 1st March 2021. The dates were later changed to be between 3rd March and 5th March 2021 and further between 14th March and 16th March 2021. According to Mr Samwel, it was a condition for the supply that, the Applicant should issue a Letter of Credit via its bankers in favour of the 1st Respo^fent, this being one of the means by which the trahsactionxwas secured. As such, on 23rd February 2024, the\Applicantxsomplied with that condition, issuing,'^tkgi^h^ts^nkers (the 2 Respondent) a I3etter\ dfX. Credit No. /A. 'C \ 002LCNB210540001 (attached\tg the affidavit as 1 A X Annex, VIVO/AF2). for Settlement of a sum of the X X... \ petroleum;praducts.'ofclers,j,.e., the USD 201,398.44. „ . X ...X r ..... -.rd Respondentas'the Confirming bank. \\ ■ \Mr Samwel submitted that, the maturity date of this Letter of'Credit (LC) was 30th April 2021 in which the 1st Respondent would have encashed it upon meeting the conditions there under. It was Mr Samwel's submission that, despite the Applicant's

compliance with the conditions for the supply of the petroleum products, the 1st Respondent breached the contract as nothing was supplied on the agreed dates. Page 3 of 8 It was further submitted that, upon interventions, on 22nd March 2021, the 1st Respondent wrote a letter and undertook to remedy the situation by promising to supply the requisite amount by 15th to 17th May 2021. As such, the maturity date for the LC was extended from 30th April 2021 to 13th July 2021. To date, however, nothing has been delivered. It was Mr Samwel's submission that, despite such a fact, the 1st, 2nd and 3rd Respondents have initiated a process of encashing the LetterW CrediKwherbthp^same th X comes to maturity on 13?£3uly 2021. He informed this Court that, after notiahg the ’ifi^mjDdy^ of the 1st Respondent, the Applicant notified the 2™ Respondent to have the Letterfof Credit ca'ncellecfcsince the consideration upon whiehdt wasMSSued^has never been fulfilled. He submitted, \thati upoi^receipt of such notice, the 2nd Respondents communicated with the 3rd Respondent requesting n the -ft latter to seek consent of the 1st VK 1 Respondent-to’ cancel the Letter of Credit. However, neither the 3rd Respondent nor the 1st Respondent agreed to the cancellation. Instead, he submitted that, in the process, the 1st Respondent has submitted the Provisional Invoice and a Letter of Indemnity to the 2nd

Respondent for the purposes of seeking to encash the Letter of Credit on its Page 4 of 8 maturity date, i.e. on 13th July 2021 despite the fact that the 1st Respondent is well aware that it is in breach of the agreement. It is on the basis of such facts that the Applicant has come to this Court to seek for an interdict Order. The question that comes to my attention is whether this Court should grant the prayers sought. Essentially, an injunctive order, as the one sought^by the Applicant herein, is an equitable remedy. It isja rule oTequity that, . xx A he who comes to equity, must come wittbclean hapas. Looking at the sub'missi^S\by\the>Xpplicant's learned counsel; I find Wat the,.Appiicant-has come with clean hands. There^has ^en a<fulfillment of some X % F conditions in the submissionxby th'e Applicant. First, the facts disclosed, in the' affidayit, tells me that there is a prima facie^casejin the’pending application. That is one of the Krequirements^wRSff one seeks for interim orders as the ones sought herein. Second,^it is clear that, if the orders are not granted, the Applicant stands to suffer irreparably. Taking into account that the 1st Respondent is a foreigner residing outside the jurisdiction of the Court, it will even be more difficult on the part of the Applicant to seek for and recover monetary compensation for the impending loses he might suffer, if such an

eventuality is to unfold. Page 5 of 8 In the case Hussein Khalid Shoumar and Another v Ali Tohme, Civil Application No.54 of 2004 (unreported) the Court of Appeal emphasized on the rational of granting an application like this one to avert the danger on the part of the Applicant, of losing its monies and suffer an irreparable loss, especially when the Respondent is a residing outside the jurisdiction of this Court. Thirdly, on the balance of ^onvenien^, it is the Applicant who stands to bet^ncoiwenlencecMf this application is to be rejected^-In niv view, there are all reasons as to why an application hkeNhe one at hand should be granted. There aiXseveral cases tnat^T could have referred vs. ASAC CarejUnit Ltd.and 2 Others Civil Revision of 20^2^^T;(D'SM) (unreported), T. A. Kaare v General Manager Mara Cooperative Union (1984) Ltd [1^87] J[lR 17 (HC), the case of Total Tanzania Ltd vs. River Oil Petroleum (T) Ltd and Another , Misc.Land Appl.No.03 of 2020, HC (MZA Registry) (unreported) and in the case of Atilio vs. M bo we (1969) HCD 284, are a few of such cases. But more recently, is the case of OILCOM Tanzania Ltd v Alchemist Energy Trading DMCC Page 6 of 8 and 30thers, Misc. Commercial Application No.73 of 2021 (dated 8th July 2021) which is quite illustrative. For the reasons as stated herein, this Court makes the following orders, that: 1. Having read the

documents constituting the application and the fact disclosed in the supporting affidavit, and taking into account the urgency of this matter and the imminent peril\at which the Applicant^exposed^f^Nsx application is not granted, this/CoUrts^ does hereby/ordeRthatithe requirement of serving, notice to the Respondents in X respect of this ex-parte application be, . .. IV , ^and is^hereby ^ispenseq^ 2. That, the\2nd and\3rd Respondents, ^^their^rv^nfeand^or agents (if any), \ \\ Xs \s and any other person acting in that hereby interdicted and \\jestrained from encashing, issuing or giving the 1st Respondent, and, also “~'^the 1st Respondent, its servants, agents or anybody acting in that behalf, is here by interdicted and restrained from receiving or performing any act calculated to receive any monies payable under or encash the Letter of Credit No. 002LCNB210540001 to the tune of USD 201,398.44 or any part thereof, Page 7 of 8 pending the hearing and determination of the present application inter-partes.

3. That, the 1st Respondent, its servants are interdicted and restrained from receiving, accepting, initiating or engaging into any act or process or anything calculated to receive from the 2nd Respondent or anybody else acting in that behalf, any monies payable under the Letter of Credit No. 002LCNB210540001 to the tune of USD 201,398.44 or any part thereof, pending the hearing and determination of the present application inter-partes. It is so Ordered DATED at DAR-ES-SALAAM, this 09 JULY 2021 Page 8 of 8