Hamisi J. Mfundo v. Mediterranean Shipping Co. SA of Geneva, Commercial Case No. 11 of 2006

IN THE HIGH COURT OF TANZANIA

(COMMERCIAL DIVISION)

AT DAR ES SALAAM

MISC. Commercial Case No. 11 of 2006

HAMISI J. MFUNDO…………………………………………..…….. PETTIONER

VERSUS

MEDITERRANEAN SHIPPING CO. SA OF GENEVA

 (MSC GENEVA) …………………………………………………… RESPONDENT

RULING

LUANDA, J.

        In order to appreciate what the nature of the application is all about, it will be helpful to give the background to the matter.

        The above named petitioner acting as liquidators of NASACO, petitioned in this Court for the following reliefs, namely:

(i)                  Leave to revoke the arbitration agreement executed between NASACO and the Respondent.

(ii)                 Costs of the application.

(iii)                Any other and further orders as the Tribunal shall deem appropriate.

The petition was filed on 30/3/2006 vide ERV 25619414.

    In answer to the petition, the Respondent raised four preliminary objections on point of law. Two of those points raised were-

(i)                  The subject matter is res- subjudice the High Court of Tanzania, Dar es Salaam Registry

(ii)                 The petitioner has no locus standi:

Kimaro, J (as she then was) heard the objections raised in the answer to the petition. At the end of the day she upheld the objection on the ground that the matter was res – subjudice with Civil Case No. 250/2000 filed in the High Court of Tanzania, Dar es Salaam Registry. The petition was dismissed with costs. Since that suffices to dispose of the matter, she did not consider other points raised. That decision was handed down on 1/8/2006.

        On 4/8/2006 vide ERV 25620471 the petitioner though its liquidator filed a memorandum of review in respect of the decision of Kimaro, J. The ground for review reads:

1.   That this Hounourable Court dismissed with costs the petition on the ground that it was res – subjudice Civil Case No. 250/2000. It has however, been discovered from the Court records that Civil Case No. 250/2000 which was stayed because there is arbitration clause has been suo motto revived and subsequently struck out in the absence of the parties as per the order of that Court, Hon. Shangwa, J dated 19/04/2005.

Having realized that Civil Case No. 250/2000 was struck out on 14/8/2006 the advocate for the respondent one Mr. Ogunde informed the Court their desire to file an application to restore the suit and prayed the application for review to await the outcome of that application. Mr. Mwambo learned Counsel who represented the applicant did not object. The Court issued the following order. I reproduce:-

Order:- The present application is stayed pending the outcome of the restoration [of the] application in the High Court, Dar es Salaam.

Sgd Bwana, J.

14/8/2006

Following the transfer of Bwana, J. (as he then was) to another station the case was re – assigned to Luanda, J. The matter was to come for mention on 8/12/2006. Prior to that date, however, the respondent filed a notice of preliminary objection and raised the question of Locus standi. Parties were ordered to argue the issue by way of written submissions. A time frame for filing the submissions was put in place. The Ruling was to be delivered on 13/4/2007. The ruling is yet to be delivered as scheduled. The parties did not file their written submissions.

        On 20/8/2007 the Court received a letter from Julius Chambers- advocates for the respondent. In that letter the advocate for the respondent drew the attention of the Court to the order of this Court dated 14/8/2006 reproduced earlier in this Ruling. In short the advocate said since an application for restoration of Civil Case No.250/2000 is yet to be determined, it was not proper to continue with the hearing of the preliminary objection.

        In view of that development I summoned the counsel for the parties to come and see what to do. Unfortunately, the counsel for the respondent did not turn up. I decided to call the record Civil Case No. 250/2000 for peruse and then write Ruling. I managed to get the record today 24/4/2008.The record shows that so far no application has been made for the restoration of the suit neither from the date it was struck out by Shangwa, J. on 19/4/2000 a period of more than two years nor from the date the Court was informed of the respondent’s intention to file an application for restoration of the suit on 14/8/2006 a period of more than eight months. And the respondent did not attempt to say as to why such failure to file the application. This no doubt shows that the respondent is not interested any more to pursue the matter. Having said that the big question is whether it is proper for this Court is to entertain the application to review the decision of this after Court failure on the part of the respondent to abide with the Court order of 14/8/2006?

        The order of this Court of 14/8/2006 which was reproduced earlier is very clear. The application to review the decision of the Court was stayed pending the outcome of the restoration of the application in the High Court, Dar es Salaam. According to the Oxford, Advanced Learner’s Dictionary Sixth Edition the word “outcome” has been defined thus – the result or effect of an action or event. In legal circles an outcome of any application filed in Court is the decision of that Court after the parties to the application had adduced evidence. An order of a Court to struck out an application for lack of prosecution as in our case doesnot in my views, falls under the ambit of an outcome of an application.

In any case Court orders are not issued for funny. They are issued so that they be obeyed and complied with. Indeed Court orders are basic part in the administration of justice. Any one who disobey them should be taken to task.

        We have seen the parties did not comply with the order of this Court of 8/3/2007 by filing their written submissions. Further, the respondent did not also comply with the Court order dated 14/8/2006. Since the Court orders were not complied with, the Court is entitled to dismiss the application. The preliminary point raised and the application for review are hereby dismissed with costs.

        Order accordingly.

B. M. Luanda, J.

JUDGE

24^th April, 2008

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