AfricaPress-Tanzania: ACACIA Mining Subsidiary Company, Pangea Minerals Limited, and Power Roads (T) Limited, have lost their bids to challenge the High Court judgment for payments of over 400m/-to Petrofuel (T) Limited over a dispute involving supply of fuel.
This follows a decision by the Court of Appeal to “strike out” the appeal and cross-appeal lodged by the two companies, respectively, after allowing a ground of objection advanced by Petrofuel (T) Limited to oppose the hearing of the matter.
Justices Richard Mziray, Lugano Mwandambo and Rehema Kerefu ruled against the two companies agreeing with submissions by counsel for Petrofuel (T) Limited that the appeal and cross-appeal were lodged prematurely.
They noted that the impugned judgment was issued by the High Court ex-parte, that is, in absence of the two companies, thus, they were required under the Civil Procedure Code to first apply to the High Court for an order to set it aside.
“In the circumstances, we are satisfied that the appellants have lodged the appeal and the cross appeal prematurely without exhausting all the available remedies in the High Court, hence rendering the same incompetent,” the justices declared.
An ex parte decision is one decided by a judge without requiring all of the parties to the dispute to be present. Ex parte means a legal proceeding brought by one party in the absence of and without representation of or notification to the other party.
The justices noted that pursuant to Order IX rule 13 (1) of the Civil Procedures Code, the remedy available to a party to a suit determined ex parte is to apply to the court which passed the said order, that he had sufficient reasons for his non-appearance and pray for the said order to be set aside.
“It is settled that where a defendant against whom an ex-parte judgment was passed, intends to set aside that judgment on the ground that he had sufficient cause for his absence. The appropriate remedy for him is to file an application to that effect in the court which entered the judgment,” they said.
The justices then declared, “For the foregoing reasons, the incompetent appeal and the cross appeal are hereby struck out with costs.” On October 15, 2007, Power Roads Limited entered into a business agreement with Fuchs Oil (T) Limited to supply 2,000,000 litres of Automotive Gas Oil (diesel fuel).
On January 4, 2008, Fuchs Oil (T) Limited executed an Assignment Deed with Petrofuel (T) Limited to supply the said diesel fuel to Power Roads Company, which she did, but was not paid.
Lycopodium Tanzania Limited, vide a letter dated September 5, 2008 and while acting on behalf of Pangea Minerals Ltd, guaranteed payment of the diesel fuel supplied.
It was alleged that Petrofuel (T) Limited had persistently demanded for payment of the said monies from Pangea Minerals Ltd without success. As a result, the company decided to take before the High Court’s Commercial Division, for determination.
In that case, Petrofuel (T) Limited sued Power Roads (T) Limited, Lycopodium Tanzania Limited and Pangea Minerals Limited for payment of 199,931,520/- being unpaid invoices for diesel fuel supplied to Petrofuel Limited.
Petrofuel (T) Limited also claimed for payment of compound interest at the tune of 515,072,528/-, general damages of 300m/-and costs of the suit.
It is on record that, upon being served with the plaintiff, Pangea Minerals and Power Roads filed their defences, but Lycopodium Tanzania Limited did not, as she was not served and the trial court had her served through substituted service.
Pangea Minerals Ltd managed to file witnesses’ statements, while Power Roads did not. The final pretrial conference was conducted on March 12, 2014 before all parties where the hearing date was scheduled for May 13, 2014.
However, on that date it was only Petrofuel (T) Limited who entered appearance, thus the suit proceeded ex parte. At the end, the trial Judge decided the suit in his favour and ordered Power Roads and Lycopodium Tanzania Limited together with Pangea Minerals Ltd to pay Petrofuel (T) Limited.
The payments ordered include sum of 16,500,000/-and compound interest of 30,946,128/-for diesel fuel supplied to Buzwagi; Sum of 292,679,126/-for fuel supplied to Buzwagi with the accrued interest and 100m/-as general damages and costs of the case.
