vivo energy tanzania limited vs alchemist energy trading dmcc and 2 others 2021 tzhccomd 3430 1 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM MISC.COMMERCIAL APPL. NO.94 OF 2021 (Arising from Commercial Case No.76 of 2021) VIVO ENERGY TANZANIA LIMITED APPLICANT VERSUS ALCHEMIST ENERGY TRADING DMCC—.1st RESPONDENT NATIONAL BANK OF COMMERCE LTD-^^S^NDENT ODDO BHF AKTIENGESELLCHAFT./4.,...3r? RESPONDENT Date of Last Order: 16/11/2021 Date of Ruling: 01/12/2021 RULING; NANGELA, J This is^fuling Fs^in respect of an application filed by the Applicant~under a certificate of urgency. The application\was brought under Order XXXVII Rule 2 (1) ano^Sgdpn 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 and thereby issued an ex-parte interdict order as deemed appropriate. I proceeded to schedule the application for inter partes necessary orders. Page 1 of 6 On 13th July 2021, Mr Josiah Noah Samwel, learned advocate, appeared for the Applicant. On the other hand, Mr Joseph Nuwamanya, learned Advocate, appeared from the 2nd Respondent while the 1st and 3rd Respondents were absent. Given the absence of the 1st and 3rd Respondent in Court, the learned counsel for the Applicant prayed that summons to appear be issued to the/zl^and^3rd Respondents. For his part Mr Nuwamany^prayecto''file a counter affidavit and, all those prayers wejj^granted and the matter was scheduled for orderssgn 19th July 2021. Unfortunately on the 19th Jdl^^02i, it was only the learned counsel for thes Applicant who showed up in Court. Consequently,^the matterwas again set for order on the 14th day of^gyg^t^l. On the*respective<date, the learned counsels for the App!icant^a^^the^nd Respondent appeared in Court but the^l^^apd 3yR'espondents never showed up. Mr Josiah for^the Applicant informed the Court that there were some^ongoing discussions between the Applicant and some of the Respondents which could signal an amicable settlement. As such, a prayer was made to have the matter adjourned to give the parties an opportunity to have meaningful engagements. Prayers of the like nature were sought thrice until when this Court informed the parties, Page 2 of 6 that, any further adjournment would attract costs as per the rules of this Court. Indeed, on 3rd of November 2021, this Court had to adjourn the matter with costs and set it for hearing on the 16th November 2021. On the material date, Mr Dismas Mallya, learned advocated appeared for the Applicant while Mr Nuwamanya appeared for the 2nd Respondent. As usual, the 1st and 3rd Respondents did not show upland, hence, the matter proceeded ex-parte against them. Since/there was an earlier order of the Court,regfriiihg^costs, for which the Court was to receive ^feedback regarding whether it was complied z with or not, it was Mr Nuwamanya who started^o ad^ress^the Court. In his submission, Mrl Nuwamanya informed the Court that the prderxwtji^tilly complied. He further told the Court, as-r.egardsvthe matter at hand, that, the 2 Respondent^jstnotecontesting this application. However, he toicNihe Court that, pursuant to paragraph 15 of the 4 z . affidavit ofizMr Mallya, it is shown that the 3 Respondent hasSlFiady deducted from the 2nd Respondent NOSTRO Account a total of EURO (€) 170,676 (which is equivalent of USD ($) 201,398.44, the amount referred to under the Letter of Credit No. 002LCNB210540001). He referred to this Court Exh.NBC -5 attached to the 2nd Respondent's counter affidavit. Page 3 of 6 The Exh.NBC -5 shows that the deductions were effected on 16th July 2021. I take note that these deductions were "made even after the orders of this Court dated 9th July 2021". Mr Nuwamanya told this Court that the 2nd Respondent complied with the orders of this Court and has not debited the Applicant's account, but, as it has been shown herein, the 2nd Respondent's NOSTRO Account was debited by the 3rd Respondent on the 16th July 2021. For his part, Mr Mallya told this ^Coufcthat, it is nd indeed true that the 2 Respondent filed a counter affidavit and, based on paragRSf5HT5of it and Annex. NBC -5, it shows that^the 3-^Respondent has already debited an amount irj EUR6 (€) which is equivalent to the amount j^def^^^z Letter of Credit No. 002LCNB210540u01z("LC"). He charged that, the 3rd Respondeffes JoHduct was contrary and was in flagrant breaefi^the^rfers of this Court dated 9th July 2021. jLMr^llya submitted that, under the said order of this CoSrt, the 2nd and 3rd Respondents were restrained from taking any action aimed at encashing the LC No. 002LCNB210540001 or giving the 1st Respondent any amount under the LC. He contended that, both the 2nd and 3rd Respondents were fully aware of the said restraint order dated 09th July 2021. In view of that, Mr, Mallya prayed that: Page 4 of 6 1. The 3rd Respondent be summoned to appear before this Court. 2. The 3rd Respondent be made to show cause regarding why this Court should not make a finding that the 3rd Respondent is guilty of having committed a contemptuous act for having defied the lawful orders of this Court. ✓ Mr Nuwamanya rejoined by restating\whav he earlier stated, regarding the non-conrentious.^osition taken by the 2nd Respondent in respect orthis application. However, he prayed that, this,Gourt^6e=pleased to deliver its ruling regarding the mat^Raffefcit has addressed the new prayers brought tdm^tah^by the Applicant. Indeed, I can s^etfwthere is logic in determining the prayers madefy the Applicant regarding the payments/^^^dy fpade by the 3rd Respondent under the "LC"Ng.x002LCNB210540001, despite the fact that on the\09th July 2021, this Court restrained all Respondents fromMakirig steps which would make it possible for the 1st Respondent to realize monies under the LC. In view of that, this Court orders as follows: 1. THAT, the 3rd Respondent (ODDO BHF AKTIENGESELLCHAFT) be made to appear in Court on 10th of December 2021, at 9.00 am, and show cause why this Court should Page 5 of 6 not make a finding that the 3rd Respondent is in contravention of the clear and lawful orders of this Court dated 09th July 2021. 2. THAT, further orders to follow after the 10th of December 2021 in respect of this application. It is so Ordered DATED at DAR-ES-SALAAM, this 01st DAY OF DECEMBER 2021 HON. DEO JOHN NANGELA JUDGE, High Court of the United Republic of Tanzania, Commercial Division. Ruling delivered in the presence of Mr Josiah Noah Samwel and Mr Dismas Mallya, Learned Advocates for the Applicant, and Mr Joseph Nuwamanya, Advocates for the 2nd Respondent, in the absence of the 1st and 3rd Respondents. HON. DEO JOHN NANGELA JUDGE, High Court of the United Republic of Tanzania Commercial Division. Page 6 of 6 vC/z.L