Ardhi Plan Limited vs CRDB Bank P L C (Civil Appeal No. 449 of 2022) [2026] TZCA 633 (5 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA. J.A.. MWAMPASHI. J.A. And MLACHA. J.A.^ t CIVIL APPEAL NO. 449 OF 2022 ARDHI PLAN LIMITED ........................................ ......................... APPELLANT VERSUS CRDB BANK P L C ................................................ ....................... RESPONDENT (Appeal from the Ruling of the High Court of Tanzania (Commercial Division) at Dar es Salaam f NanaelaJ.) dated the 11th day of July, 2022 in Commercial Case No. 24 of 2022 JUDGMENT OF THE COURT 7th November, 2025 & 5th June, 2026 MLACHA, J.A.: The High Court of Tanzania (Commercial Division) at Dar es Salaam in its ruling dated 11,07.2022 found Commercial Case No. 24 of 2022 to be res subjudice and an abuse of the court process. Based on this finding, the suit was dismissed with costs. Aggrieved by both the finding and the resultant order, the appellant preferred this appeal. The respondent is resisting the appeal. The facts relevant to the appeal can be presented as follows: The appellant, a body corporate incorporated in Tanzania, dealing with land matters, approached the respondent for a loan facility to fund its business. They reached an agreement and a loan facility letter dated 21.12.2015 was issued in favour of the appellant. The terms of this letter were varied later by two loan facility letters dated 30.06.2016 and 18.08.2017 respectively. It appears that the appellant could not service the loan facility as agreed leading to the signing of a cooperation agreement for recovery of the debt through selling of the appellant's plots of land. The outstanding loan amount due and payable to the respondent immediately before the signing of the cooperation agreement was TZS. 5,870,880,777.09 as the principal amount plus TZS. 1,908,601,844.40 as arrears, total TZS. 7,779,482,621.49. The cooperation agreement could not yield the expected results. Faced with this difficulty, the respondent filed Commercial Case No. 90 of 2020 against the appellant seeking recovery of the money through the court process. While the case was still pending, the appellant filed Commercial Case No. 24 of 2022 alleging breach of the cooperation agreement for which payment of general damages was sought. When service was affected to the respondent, she filed a Written Statement of Defence accompanied by a preliminary objection claiming that Commercial Case No. 24 of 2022 was ressubjudice in view of the existence of Commercial Case No. 90 of 2020 on the same issues. The High Court upheld the preliminary objection and dismissed the suit for being both res subjudice and an abuse of the Court process hence the appeal. The grounds of complaints in this appeal can be presented as follows: one, the finding that Commercial Case No. 24 of 2022 was res subjudice was erroneous; two, Commercial case No. 24 Of 2022 was supposed to be stayed instead of being dismissed with costs and; three, the finding that Commercial Case No. 24 of 2022 was an abuse of the Court process was erroneous. The appellant was represented by Ms. Ziada Omari Mkwazu, learned advocate whereas the respondent was represented by Mr. Zuriel Kazungu, also learned advocate. On taking the floor, Ms. Mkwazu adopted the contents of the Written Submissions and had a short oral submission to make. In ground one, she submitted that Commercial case No. 24 of 2022 was seeking payment of damages for breach of contract whereas Commercial Case No. 90 of 2020 sought for recovery of the loan amount plus interest under the loan contract. She contended that the reliefs were different so the finding that the case was res subjudice was erroneous. In ground two it was submitted that, after finding that the suit was res subjudice the trial Judge was supposed to make an order staying the proceedings before him, pending the hearing and final determination of the former suit, instead of dismissing it with costs. He cited section 10 of the Civil Procedure Code (the CPC) and our decisions in Mire Artna Ismail v. Sofia Yasin Njati [2005] TZCA 133 and CRDB Bank Limited v. Tanga Hard Ware & Auto parts Limited [2007] TZCA 155 to support her contention. On the third ground of complaint, Ms. Mkwazu submitted that, if the learned Judge had taken into account the fact that the appellant's prayer to amend the written statement of defence was denied, he could not find the suit to be an abuse of the court process. When she was probed by the Court to support what she was saying by the record of appeal, she failed to do so. That notwithstanding, she argued that the finding that the suit was an abuse of the court process was erroneous because the appellant had a right to sue following a breach of the cooperation agreement. She urged the Court to allow the appeal. In reply, Mr. Kazungu adopted the contents of his written submissions and had this to say in elaboration. He submitted that, Commercial case No. 24 of 2022 and Commercial Case No. 90 of 2020 are based on the loan facility extended by the respondent to the appellant. The parties and issues around the cases were the same. On this understanding he contended that, the finding that Commercial Case No. 24 of 2022, which was filed at a later stage, was res subjudice to Commercial Case No. 90 of 2020, was correct. He went on to submit that as the appellant was fully aware of the existence of Commercial case No. 90 of 2020 filing another case on the same issues was nothing but an abuse of the court process. He contended that with this material fact before the court, it was proper to dismiss the suit with costs. He went on to submit that the argument that the appellant was denied to amend the pleadings is not supported by the record so has to be ignored. On the complaint that the High Court ought to have ordered stay of proceedings, he submitted that the court could not make an order for stay of proceedings because Commercial Case No. 90 of 2020 was withdrawn soon later. He supplied a copy of the order of the High Court dated 11.07.2022 (Maruma J.) during the hearing. He relied on our decisions in The Registered Trustees of Kanisa la Pentecoste Mbeya v. Lamson Sikazwe & 4 Others, Civil Appeal No. 210 of 2020 and Hamisi Saidi Mkuki v. Fatma Ally, Civil Appeal No. 147 of 2017 to support his contentions. He urged the Court to dismiss the appeal. We had time to examine the record and consider the submissions of the parties. We plan to combine the complaints together because they 5 are closely related. We will start with the law. The relevant law is section 10 of CPC which provides as follows: "A court sh all not proceed with the tria l o f any su it in which the m atter in issue is aiso directly and substantially in issue in a previously instituted su it between the same parties, or between parties under whom they or any o f them claim litigating under the same title where such su it is pending in the same or any other court in Tanzania having jurisdiction to grant the re lie f claim ed" This provision carries the principle of res subjudice which prevents courts from proceeding with trial of any suit in which the matter in issue is directly and substantially the same in another suit previous instituted between the same parties where the court in the former suit was instituted has power to hear the case and grant the reliefs sought. The purpose of this principle is to prevent multiplicity of suits in courts, prevent litigants from unnecessary harassments and prevent the possibility of having two conflicting decisions on the same matter. See our decisions in Karori Chogoro vs Waitihache Merengo [2022] TZCA 83, Mary John Mitchell vs Sylvester Magembe Cheyo and Others [2009] TZCA 238 and Managing Director, ABSA Bank Tanzania Limited vs Felician Muhandiki [2022] TZCA 379 to mention but a few. In Karori Chogoro (supra) it was restated thus: 6 "The Doctrine o f re s-su b ju d ic e prevents a court or Tribunal from proceeding with the tria l o f any su it in which the m atter in issue is directly and substantially the same with the previously instituted su it between the sam e parties pending before same or another court with ju risd iction to determ ine it" Given the undisputed fact that Commercial Case No. 24 of 2022 was filed while Commercial Case No. 90 of 2020 was already in court and the fact that the two cases were based on the loan facility extended by the respondent to the appellant and issues arising there to, involving the same parties, we have the view that the learned Judge was correct in his finding that the suit was res subjudice. There was thus no need, so to say, to file the suit seeking to get a right which could be obtained in the former suit by amendment of pleadings to insert a counter claim in the Written Statement of Defence. No wonder the trial Judge termed it as an abuse of the court process. Next is whether it was correct to dismiss the suit with costs. And if so, what is the way forward. Counsel for the appellant had it that it was wrong to dismiss it with costs arguing that the proper course could be to stay the proceedings pending determination of the former suit. Counsel for the respondent has the opposing views arguing that section 10 of the CPC called for an order of stay of proceeding. In an endeavor to resolve the controversy, we had a look at an Indian book by C.K. Takwani, CIVIL PROCEDURE, 5th edition, published by Eastern Book Company, at page 52 where the author, making reference to section 10 of the Indian Civil Procedure Code, which is in p a ri m ateria with section 10 of our CPC, and the decision of the Supreme Court of India in Manohar Lai v. Seth Haralal, AIR 1962 SC 527 (536) he stated as follows: "For the application o f this section, the follow ing conditions m ust be satisfied: (i) There m ust be two suits, one previously instituted and the other subsequently instituted. (ii) The m atter in issue in the subsequent su it m ust be directly and substantially in issue in the previous su it (Hi) Both the su its m ust be between the same parties or their representatives. (iv) The previously instituted su it m ust be pending in the sam e court in which the subsequent su it is brought or any other court in India or any court beyond the lim its o f India established or continued by the Central Governm ent or before the Supreme Court. (v) The Court in which the previous su it is instituted m ust have ju risdiction to grant the re lie f claim ed in the subsequent su it (vi) Such parties m ust be litigating under the same title in both the suits. 8 A s soon a s th e above co n d itio n s a re sa tisfie d , a c o u rt ca n n o t p ro ce e d w ith th e su b se q u e n tly in s titu te d s u it sin ce th e p ro v isio n s co n ta in e d in se ctio n 1 0 a re m an d atory a n d no d iscre tio n is le ft w ith th e cou rt. The o rd e r sta y in g th e p ro cee d in g s can be m ade a t a n y sta g e ." [Emphasis supplied] See also our decision in CRDB Bank Limited v. Tanga Hardware & Auto Parts Ltd and Others, [2007] TZCA 155 where the interpretation of section 8 of the CPC (now section 10 of the Revised Edition 2023) was given in an akin situation as follows: "The above quoted section needs no interpolation a t ail. Even w ithout looking a t the m arginal note it is d ifficu lt to extract therefrom a " dism issal " as an order that the court is required to give once it is established that there is a sim ilar case pending in term s o f section 8 o f the C ivil Procedure Code ... And, a s rig h tly p o in te d o u t b y M r. M w andam bo, even in In d ia , se ctio n 1 0 o f th e ir Code o f C iv il P roced u re w hich is in p a r m a te ria l w ith o u r se ctio n 8 p ro v id e s fo r s ta y a n d n o t d ism issa l'" [ Em phasis supplied] We are therefore in agreement with counsel for the respondent that the learned Judge was in error when he dismissed the suit after a finding that it was res subjudice. The proper course could be an order for stay of 9 proceedings pending the decision in the former case. As the former case has already been withdrawn as intimated above, we vacate the order of the High Court dismissing the suit and direct the case to proceed for hearing from the stage it had been before making the dismissal order. That said and done, the appeal is allowed with costs. DATED at DODOMA this 3rd day of June, 2026. S. A. LILA JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered virtually this 5th day of June 2026 in the presence of Ms. Ziada Omary Mkwazu, learned Counsel for the Appellant, Mr. Zuriel Kazungu, learned Counsel for the Respondent and Mr. Elias Nkwabi, Court clerk, is hereby certified as a true copy of the original. R. W. CHAUNGU EPUTY REGISTRAR COURT OF APPEAL 10