Reef Gold Limited vs Gold Africa Limited (Civil Appeal No. 303 of 2024) [2026] TZCA 593 (20 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA f CORAM: LILA. J.A., RUMANYIKA 3.A. And MANSOOR, J.A.) CIVIL APPEAL NO. 303 OF 2024 REEF GOLD LIMITED................. .............. ................................. APPELLANT VERSUS GOLD AFRICA LIMITED..............................................................RESPONDENT (Appeal from the Ruling and Drawn order of the High Court of Tanzania (Commercial Division) at Dar es Salaam) Aaatho. J. dated the 10th day of November, 2023 in Miscellaneous Commercial Case No. 61 of 2021 JUDGMENT OF THE COURT 5th December, 2025 & 20th May, 2026 RUMANYIKA. J.A.i This appeal emanates from the decision of the High Court of Tanzania, Commercial Division, at Dar es Salaam (Agatho, J.) dated 10th November 2023 in Miscellaneous Commercial Cause No. 61 of 2021. In that case, the respondent, Gold Africa Limited had sought for an order compelling the appellant, Reef Gold Limited, to convene a shareholders' meeting. It was intended, in that meeting to select directors who would represent her in the i

appellant company attempting to sort out the existing conflict between the parties. In those proceedings, however, the appellant raised a jurisdictional issue in that, as it stood, the dispute was exclusively subject to arbitration, as required in the respective Joint Venture Agreement (JVA). However, it transpired that, the JVA had been executed between the respondent and one EB Hance Company Limited. The latter was not a party to the JVA, just as she is not a party to the present appeal. As such, the trial Court held that, being an alien to the JVA, the appellant was not bound by the said arbitration clause. Rather, it was held that the relief sought by the respondent is a matter regulated by the Companies Act, hence, not arbitrable. Therefore, the preliminary objection was overruled and the matter was ordered to proceed on merits. Dissatisfied with that decision, the appellant has preferred the present appeal, with eight points of grievance. Besides, the respondent filed a cross-appeal comprising nine grounds. She challenged the ruling of the High Court (Magoiga, J.) in the similar proceedings, regarding, among other orders, nullifying the minutes of the said meeting sought and granted previously. He directed for a fresh one to be conducted. The appellant was also ordered to present a report as feedback. Therefore, we are called upon to consider and determine such points by way of cross appeal. 2

It is worth noting, essentially, that the substantive appeal and cross appeal revolve around two main issues as follows; One, whether the High Court acted properly in not entertaining the appeal before it, for the reason of there being arbitration clause in the JVA, two, whether, upon granting an order for the appellant to convene a meeting and select directors, as sought and granted, the learned Judge was functus officio to reopen the proceedings, nullifying whatever had transpired at the meeting and make such auxiliary orders. Therefore, for the reasons that will come to light shortly, we shall not restate the grounds of appeal because their irrelevance in the circumstances of the case. Rather, we will deliberate on the cross appeal, whose grounds are trimmed down to a single issue as stated above. We find it to be solely decisive of the cross appeal, much as we shall so confine ourselves to the respective learned counsel's submissions only. At the scheduled hearing of the appeal and cross appeal, Messrs. Philemon Mutakyamirwa and Killey Mwitasi, learned counsel represented the appellant and the respondent, respectively. Tracing the background to the matter giving rise to the cross appeal, with the view to assailing the trial court's decision dated 21/02/2022, upon adopting the respondent's/ cross appellant's written submission filed on 3

23/08/2024 as part of his oral submission Mr. Mwitasi highlighted on the present respondent's disatisfaction with the proceedings before Magoiga, J. It was contended that, as long as the relief sought, namely, for the appellant to convene a meeting of the majority and minority shareholders to select directors was accordingly granted and the respondent no longer had issues, the learned Judge was done and hence, functus officio. Therefore, it was asserted, the subsequent orders dated 06/12/2021, as appearing on pages 10 to 12 of the supplementary record of appeal are inconsequential. Mr. Mwitasi pointed out that, what occurred to him as mischievous orders include; one, the appellant being required to report back on the intended meeting. Two, the respective meeting being declared a nullity, as appears on pages 158 to 197, 208 and, 323 of the record of appeal and three, removing the appellant's advocate from the conduct of the proceedings. He asserted that, in doing so, the learned Judge acted wrongly and improperly reducing himself into a third party with interest in those proceedings. Moreover, Mr. Mwitasi contended that, given the prevalence of the misunderstandings between the parties that almost lead to the business to a stand- still, and that a meeting to select directors, in attempt to resolve the misunderstandings was successfully sought and granted at the instance of the respondent in terms of section 137 of the Companies Act, from there, 4

the learned Judge was done. To reopen those proceedings and annul the minutes of the meeting, he stressed, the learned Judge no longer had jurisdiction as he was functus officio eve r since. The learned counsel cited our decision in NHC v. Tanzania Shoe Company Ltd & Two Others, Civil Appeal No. 48 of 1994 (unreported) to reinforce his contention. Therefore, Mr. Mwitasi urged the Court to quash the impugned decision and set aside the resultant orders, with the direction that the matter proceed on its merits as it was ordered by Agatho, J. previously. He asked for the cross appeal to be allowed with costs. Replying, Mr. Mutakyamirwa began by adopting the appellant's written submission filed on 27/09/2024 to form part of his oral arguments. He urged the Court to find the cross appeal unmerited. He contended that, the learned Judge cannot be faulted in any way whatsoever for having made any one of the orders complained of. It is so, Mr. Mutakyamirwa argued, despite the granting of the substantive application, Misc. Commercial Cause No. 61 of 2021, yet as did, it occurred to the learned Judge that, still the disputes persisted between the parties hence, need of his further attention. Therefore, it was asserted, the said subsequent orders were proper in the circumstances of the case, as the issues raised called for a fresh attention and decision of the learned Judge for a better and conclusive determination of the dispute, within the confines of section 137 of the Companies Act. On 5

that one, Mr. Mutakyamirwa stressed, the learned Judge cannot be taken to have interfered the parties' internal affairs, as alleged by Mr. Mwitasi. He added that, given the unusual circumstances of the day, namely the persistence and gravity of the management conflicts between the parties, the learned Judge cannot be faulted. For that reason, Mr. Mutakyamirwa wound up arguing that, the learned Judge was right to annul the proceedings of the meeting and order as such. Therefore, the Court was implored to find no merit in the cross appeal and dismiss it. Upon hearing the submissions of the learned counsel for and against the cross appeal, and having considered the record of appeal, together with the authorities cited, we are convinced that, the strength of the complaints before us cannot be under rated. Primarily, being concerned is the propriety of the learned Judge's decision, post granting of the substantive application before him on 06/12/2021 to order as he did. To appreciate the gist of the said application, for clarity, we take the liberty of quoting, verbatim, the operative part of the respective chamber summons, as appearing on pages 8 to 9 of the record of appeal. It reads thus,

1. "That the Honorable court be pleased to order the respondent to conduct a m eeting o f the com pany 6

in the m anner provided in the articles o f association..., with the soie agenda o f appointing the directors o f the company representing the appiicant nam eiy A bdiei M engi and Benjam in Abraham Mengi... Notably, ever since the said petition was substantively determined in terms of section 137 of the Company's Act. In essence, with that decision in place, the appellant was at liberty to convene a meeting with the view to selecting the directors, as sought. If anything, therefore, whatever may have caused the intended meeting abortive, the learned Judge was no longer concerned with it. Nevertheless, in what would appear to us to be a "second bite" ruling, as appearing on page 207 of the record of appeal, he observed, unusually as follows: "...no m eeting as directed and ordered by the court was done and I hereby re-order [the sam e]... the Company Secretary to com ply by calling fresh m eetings as soon as possible..." Therefore, we agree with Mr. Mwitasi's contention that ever since, as far as the proceedings were concerned, the learned Judge was too functus o fficio to make the orders complained of. With respect, its effect was but

re-opening the proceedings which were substantively concluded, which we fault for being improper. As we pen off, it is worth noting that the functus officio maxim also intends that; one, no litigation shall be endless and two, in any judicial proceedings any court decision has to be sustainable, certain, consistent and most importantly, predictable. It is stressed, therefore, that to avoid endless litigation, and for a court of law to be predictable, judicial officers should re open the proceedings so sparingly and not casually at their pleasure. It is plain to us, in the present case that, upon the learned Judge re opening the proceedings, not only the resultant orders were made unsolicited, but also, they were improper and uncalled for in the circumstances, as observed above. Whether or not upon the proceedings being re-opened the parties appeared before the learned Judge it counts nothing. In any case, therefore, any court decision that is made unsolicited it is tantamount to running the risks of giving unpopular, in executable and worse a redundant decision which has to be discouraged. All said, we allow the cross-appeal. Subsequently, the impugned decision and orders are quashed and set aside, respectively. For the avoidance of doubt, therefore, the decision of Agatho, J. dated 10/11/2023 8

in Miscellaneous Commercial Case No. 61 of 2021 remains valid and intact. We make no order as to costs, given the circumstances of the case. DATED at DODOMA this 31st day of March, 2026. S. A. LILA JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 20th day of May, 2026 virtually in the presence of Ms. Jadeness Jason, learned counsel for the appellant, Mr. Kiliey Mwitasi learned counsel for the respondent and Mr. John Gervas, the Court Clerk, is hereby certified as a true copy of the original. 9