Grand Confectionary Bakery Limited vs Petrofuel (T) Limited (Civil Application No. 06665 of 2026) [2026] TZCA 479 (4 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 06665 OF 2026 GRAND CONFECTIONARY BAKERY LIMITED..............................APPLICANT VERSUS PETROFUEL (T) LIMITED....................................................... RESPONDENT (Application for stay of proceedings of the High Court of Tanzania, Commercial Division at Dar es Salaam) £KadillLJi) dated the 17th day of March, 2025 in Commercial Cause No. 46 of 2016 RULING 29hApril & 4h May, 2026 MGEYEKWA. J.A.: Grand Confectionary Bakery Limited, the applicant, has moved this Court against Petrofuel (T) Limited, the respondent, seeking an order for stay of proceedings in the High Court of Tanzania (Commercial Division) at Dar es Salaam in Commercial Execution No. 6029 of 2026. The said execution proceedings emanate from Miscellaneous Commercial Application No. 017457 of 2025 (Kadilu, J.) dated 20th February, 2026, wherein the learned Judge lifted the corporate veil of the applicant so as to impose personal liability upon its director in enforcement of a decree arising from a default judgment in Commercial Case No. 46 of 2016 (Agatho, J.) dated 17thMarch, 2023. l The application is by way of notice of motion brought under Rules 4(2)(a) and (b) of the Tanzania Court of Appeal Rules, 2009. It is supported by an affidavit sworn by Youssef Malek Jabber, the Principal Officer of the applicant company. On the other hand, the application was opposed by the respondent who filed an affidavit in reply sworn by Stephen Mosha, contending, in essence, that the application is devoid of merit. In addition, learned counsel for the respondent lodged a notice of preliminary objection raising two points of law as follows: 1. That the present application is res sub judice in that there is a pending application before the Court, Application No. 1498 o f 2025 where the applicants seeks orders for stay of execution o f the default judgment and decree o f the High Court o f Tanzania (Commercial Division) at Dar es Salaam in Commercial Case No. 46 o f 2016 (Hon. Agatho, J.) dated 17th March , 2023 the instant application seeks a similar relief, is therefore incompetent for offending the doctrine o f res sub judice as enunciated in Manging Director, ABSA Bank Tanzania Limited v. Feiician Muhandiki, Civil Application No. 37 o f2021 [2021] TZCA 379. 2. That, the applicant is abusing the process o f the Court by pursuing parallel proceedings in different courts and the matter is over the same subject matter. In particular the 2 applicant in disguise has caused its directors to institute Misc. Commercial Application No. 7893 o f 2026 before the High Court (Commercial Division) in their person capacities seeking inter alia an order for stay o f execution o f the Ruling and Order in Misc. Commercial Application No. 17457o f2025 (Kadilu,!) dated 2Cfh February, 2026 together with all consequential execution proceedings arising from Commercial Case No. 46 o f 2016 (Agatha, J.) dated I7 h March , 202. The said application though framed differently is in substance intended to achieve the same result and confer the same benefit as the present application namely to stay execution o f the same decree arising from Commercial Case No. 46 o f 2016. This multiplicity o fproceedings is dear abuse o f court process and is contrary to the principle laid down in Managing Director, ABSA Bank Tanzania Limited v. Feiician Muhandiki, Civil Application No. 37 o f2021 [2021] TZCA 379. When the application came up for hearing, Mr. Nobert Mlwale, learned counsel, appeared for the applicant, while Mr. Stephen Mosha, learned counsel, appeared for the respondent. In accordance with established practice, I deemed it appropriate to determine the preliminary objections before embarking upon the merits of the application. I shall begin with the second objection, which, if upheld, is dispositive of the entire application. 3 In support of that objection, Mr. Mosha submitted that the applicant is engaged in parallel proceedings before different courts in respect of the same subject matter. He elaborated that the director of the applicant, who swore the affidavit in support of the present application, had earlier instituted Miscellaneous Commercial Application No. 7893 of 2026 before the High Court (Commercial Division), in his personal capacity, seeking a stay of execution of the ruling and order in Miscellaneous Commercial Application No. 017457 of 2025, together with all consequential execution proceedings arising from Commercial Case No. 46 of 2016. He pointed out that the said application was filed prior to the present one and that, in substance, it seeks to achieve the same relief as is sought herein. The learned counsel for the applicant further submitted that such conduct amounts to an abuse of the process of the Court, as it involves pursuing multiple proceedings contrary to the principle laid down in the case of Managing Director, ABSA Bank Tanzania Limited v. Felician Muhandiki, Civil Application No. 37 of 2021 [2021] TZCA 379, the Court held that the applicant's action is like riding two horses at the same time. Mr. Mosha accordingly urged the Court to uphold the objection and strike out the application with costs. 4 In response, Mr. Mlwale resisted the preliminary objection. He submitted that there is no abuse of the process of the Court, as there are no parallel proceedings between the same parties in respect of the same cause. He argued that the application before the High Court was instituted by the director of the applicant in his personal capacity, and not by the applicant company itself. He further contended that there is a pending notice of appeal before this Court, thereby rendering the present application properly before the Court. In support of his submission, he relied on Serenity on the Lake Ltd v. Dorcas Martin Nyanda, Civil Revision No. 1 of 2019. He therefore urged the Court to dismiss the preliminary objection. In his rejoinder, Mr. Mosha reiterated his earlier submissions and maintained that, in substance, the parties and the subject matter in both proceedings are the same, and that the decree sought to be stayed is identical. He referred me to annexure PTF1 in support of that contention. I have given anxious consideration to the rival submissions of learned counsel on the second preliminary objection, which alleges abuse of the process of the Court on account of multiplicity of proceedings. The doctrine against abuse of court process is now well settled. It is aimed at preventing a party from engaging in conduct that undermines the orderly 5 administration of justice by instituting multiple proceedings over the same subject matter in different fora, with a view to securing the same or substantially similar reliefs. In Managing Director, ABSA Bank Tanzania Limited (supra), this Court deprecated the practice of pursuing parallel proceedings and held that such conduct amounts to an abuse of the process of the Court, warranting the striking out of the offending proceedings. In the present matter, the record shows that prior to filing the instant application, the director of the applicant had already instituted Miscellaneous Commercial Application No. 7893 of 2026 before the High Court (Commercial Division) seeking, inter alia, a stay of execution of the ruling and order in Miscellaneous Commercial Application No. 017457 of 2025, together with all consequential execution proceedings arising from Commercial Case No. 46 of 2016. It is beyond dispute that the relief sought in that application is, in substance, identical to the relief sought in the present application namely, to halt execution of the same decree. The argument advanced by learned counsel for the applicant, that the proceedings before the High Court were instituted by the director in his personal capacity and not by the applicant company, does not, in my view, avail the applicant. The substance of the matter, rather than its 6 form, must prevail. The director is the controlling mind of the applicant company, and the relief sought in both proceedings is directed at the same decree and intended to achieve the same objective. To permit such parallel proceedings would be to elevate form over substance and to sanction a practice that the law clearly frowns upon. It is common ground that a litigant cannot be allowed to litigate in installment or to pursue multiple avenues simultaneously in respect of the same grievance. The court must guard against such conduct, lest its process be reduced to a forum for experimentation. Therefore, I am at one with the learned counsel for the respondent that the act of the applicant is like riding two horses at the same time while the law does not countenance such a course. A litigant must elect a single path and pursue it to its logical conclusion. To do otherwise is to invite confusion, duplication of effort, and the risk of conflicting decisions. In the circumstances, I am satisfied that the applicant has engaged in parallel proceedings over the same decree, seeking substantially the same relief. This, in my considered view, constitutes a clear abuse of court process. Accordingly, the second preliminary objection is well founded and is hereby upheld. Having so found, and since that objection is dispositive 7 of the entire application, it becomes unnecessary to consider the first point of preliminary objection. In the result, the application is hereby struck out with costs to abide the event. It is so ordered. DATED at DAR ES SALAAM this 4th day of May, 2026. A. Z. MGEYEKWA JUSTICE OF APPEAL The Ruling delivered this 4th day of May, 2026 via virtual Court, in the presence of Mr. Norbert Mlwale, learned counsel for the applicant and Mr. Stephen Mosha, learned counsel for the respondent and Mr. Ladislaus Msuba, Court Clerk; is hereby certified as a true copy of the original. 8