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