Oryx Energies Tanzania Limited vs Mo Assurance Company Limited & Another (Civil Appeal No. 705 of 2023) [2025] TZCA 945 (3 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PODOMA ( CORAM: LEVIRA. J.A. MASHAKA, 3.A. And NANGELA. J.A^ CIVIL APPEAL NO. 705 OF 2023 ORYX ENERGIES TANZANIA LIMITED ....................................... APPELLANT VERSUS MO ASSURANCE COMPANY LIMITED ..... ............................. 1 st RESPONDENT ENCOD LIMITED ......... ..................................................... 2 nd RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Mbagwa, 3.) dated the 17th day of May 2023 in Commercial Case No. 95 of 2022 JUDGMENT OF THE COURT 5th August & 3rd September, 2025 NANGELA, J.A.: What course should a court take when a party files a suit before it and attempts to circumvent an arbitration clause requiring such parties to resolve their disputes or differences through arbitration? In such a situation, should the court strike out or dismiss the suit, or should it issue a stay order in favour of arbitration or, should it ignore the arbitration clause and proceed to hear the suit? This Judgment of the Court seeks to, inter alia, respond to these questions. To bring context to the above, however, an account of facts constituting this appeal is warranted, albeit in brief. The appellant, a

licensed oil-supplying company, concluded a wholesale-supply-contract (the contract) with the second respondent for the supply of petroleum products to the latter. Clause 11 of the contract was an arbitration clause in which parties had agreed to subject whatever dispute, disagreement, or claim between themselves to arbitration in case such a dispute, disagreement, or claim failed to be informally resolved. It was also an agreed term under the contract that the second respondent would have access to a credit limit of TZS. 300,000,000/= worth of supply. The second respondent sought to exceed the agreed credit limit and, the parties resolved that, to do so, she must provide a Performance Bond to safeguard the appellant from any possible breach. On that account, the first respondent issued a Performance Bond in favour of the second respondent, which performance bond held unto the first respondent as surety in the maximum of TZS. 600,000,000/=, payable as indemnity to the appellant in event the second respondent's breach of the supply contract. Allegedly, however, the second respondent exceeded the credit limit of TZS. 300,000,000/= and defaulted in making payments amounting to TZS. 390,207,000/=. Attempts by the appellant to have the first respondent honour the performance bond, and immediately settle the claims against the second respondent, were futile. Aggrieved, the appellant preferred a civil suit

before the High Court of Tanzania, (Commercial Division), a suit designated as Civil Case No. 95 of 2022. In her suit, the appellant sued both respondents, jointly and severally, claiming for, among others, an outstanding amount of TZS. 390.207,000/= arising from the supplies made to the second respondent and guaranteed by the first respondent. Even so, both respondents denied the appellant's claims and, further, the second respondent raised a counterclaim, claiming from the appellant TZS. 720,000,000, being losses suffered due to the appellant's failure to honour the contractual obligations arising from the performance bond for TZS. 600,000,000/- issued by the first respondent. However, the first respondent's learned counsel raised a preliminary objection, at the earliest stage of the suit, to the effect that the suit was prematurely before the court for want of reference to arbitration. The trial court afforded all parties a right to be heard on that preliminary objection and, the trial judge issued a ruling. In its ruling, the trial court upheld the preliminary point of law and struck out the suit with costs. Dissatisfied by that ruling and its consequential orders as to costs, the appellant is now, in this appeal, seeking to have the ruling and its consequential orders set aside. The appellant relies on four grounds of appeal, which may be paraphrased to read as follows, that:

1. The trial Judge erred in iaw and fact by striking out the case for alleged incompetence based on the existence o f an arbitration clause, thereby contravening Section 15(1) and (4) o f the Arbitration Act, o f2020, which mandates the Court to stay the proceedings and direct the parties to arbitration.
2. The trial Judge erred in iaw when he struck out the matter by upholding a preliminary objection which was never raised by the first respondent.
3. The trial Judge erred in iaw and fad: when he ordered the appellant to bear the respondents' costs even though the proceedings were terminated at the preliminary stage and did not entail a protracted trial.
4. The trial Judge erred in iaw and in fact when he ordered the appellant to pay costs to the second respondent notwithstanding that the second respondent had filed a counterclaim in relation to the same matter. When this appeal was called on for hearing, Dr. Alexander Thomas Nguluma, a learned counsel, appeared representing the appellant, while Ms. Neema Roman Mahunga and Mr. Francisco Kaijage Bantu, also learned counsel, represented the first and second respondents, respectively. When Dr. Nguluma addressed the Court, he adopted the appellant's written submissions and list of authorities which were earlier filed in Court and made some clarifications thereto. His brief clarifications, in respect of the first ground of the appeal, were to the effect that the trial court ought to have acted in accordance with the dictates of section 15 (1) and (4) of

the Arbitration Act, Cap. 15 R.E. 2020 (the Arbitration Act) and stay the suit, having made a finding that the arbitration clause was valid. To support his contention, reliance was placed on the decision of this Court in the case of Scova Engineering S.P.A & Another vs. Mtibwa Estates Ltd & Others [2021] TZCA 74 (TanzLII). Besides, Dr. Nguluma contended that, in the circumstances of the suit before the trial court, even an order staying the suit would have been uncalled for due to three reasons: one, all parties had already submitted to the jurisdiction of the court, meaning that they had vacated the arbitration clause, two, the performance bond was a separate agreement which never bound the second appellant and, three, by virtue of clause 4.3.4 and 4.3.4.7 of the supply contract, the appellant had a right to pursue all legal avenues including litigation for the recovery of the overdue payments. As regards the second ground of appeal, Dr. Nguluma clarified that since there was no notice of preliminary objection formally pleaded and filed in court, it was erroneous for the court to have entertained the preliminary point of law, especially so because the court was moved by a mere concern raised by the first respondent. He shielded his argument by reference to the case of Ester Chakupewa vs. Amasha Mpenzi & Another [2023] TZCA 17979 (TanzLII). Other cases relied on in the written submission include the cases of George Shambwe vs. Attorney

General and Another, [1996] T.L.R 394, and Mukisa Biscuits Manufacturing Company vs. West End Distributors Ltd [1969] E.A 696. For the time being, we shall first confine ourselves to these two grounds of appeal. In their responses to Dr. Nguluma's submission, both Ms. Mahunga, and Mr. Bantu, refuted that submission. Starting with Ms. Mahunga, having adopted the first respondent's submissions, she was of the view, firstly, that since the performance bond had incorporated all terms and conditions of the fuel supply contract, the first respondent became a party to that contract, thus not a separate agreement as argued by Dr. Nguluma. Secondly, it was her submission that, contrary to what Dr. Nguluma submitted, clause 4.3.3 and 4.3.4.7 of the supply contract were not the dispute resolution clauses applicable to the parties' dispute. Instead, she argued, clause 11 which obligated the parties to refer their disputes or disagreements to arbitration was the applicable clause. Finally, concerning the applicability of section 15 (1) of the Arbitration Act, she submitted that such provision contained an obligation on the respondents which they had to discharge as an essential step. That requirement, she contended, included the filing of their respective defence, which fact is allowed under Order VIII rule 9 (1) of the Civil Procedure Code, Cap. 33 R.E. 2019, and,

thus, the second respondent was entitled to, as well, raise a counterclaim therein. Concerning the second ground of appeal, it was Ms. Mahunga's contention that, unlike what Dr. Nguluma submitted, there was a proper notice of preliminary objection, and the trial court acted rightly when it chose to determine it. According to her submission, what Dr. Nguluma regarded as the first respondent's concern was, indeed, raised by the first respondent and made known to the appellant's counsel beforehand, but he ignored it, a fact which was even acknowledged in paragraph 2.4 of the appellant's written submissions. Consequently, it was her conclusion that such a foreknowledge was a sufficient notice, and, for that matter, the case of Ester Chakupewa (supra) was distinguishable. As earlier alluded to hereabove, Mr. Bantu equally opposed this appeal and the submissions made by the appellant's counsel and raised several points worth considering. Firstly ; he maintained that the second respondent was entitled to file the counterclaim given that the Arbitration Act, mandates a party to first acknowledge the suit and, so, having filed the defence, she was entitled to file a counterclaim. Secondly, he contended that the performance bond was part and parcel of the supply agreement because, for it to be effective it was mandatory for the second respondent to have in place a performance bond.

He contended, therefore, that, the first respondent was equally a party to the arbitration agreement. Thirdly, Mr. Bantu maintained that the suit was rightly struck out because, a stay of a suit under section 15 (1) and (4) of the Arbitration Act is not automatic; a party must move the court to that effect. There being no evidence of such application having been made to the court, he maintained that the trial court was right. He, thereby, distinguished the case Scova Engineering (supra) which the appellant's counsel relied upon in his submissions. Regarding the second ground of appeal, Mr. Bantu was of the view that the existence of the arbitration clause touched on the issue of exercise of the jurisdiction of the court over the matter before it, and, as.the.record, of this appeal would reveal on pages 201 and 202, the appellant's attention was brought to that point but she instead chose to ignore it. It was Mr. Batu's contention, therefore, that, while it is a principle that a preliminary objection can be raised at any stage, so long as first respondent as a party had intimated to the court that the suit was unmaintainable, that intimation sufficed to be a preliminary objection worth of being addressed by the court. He pointed out, as well, that, the parties were thereby called upon to address it and the trial court rightly delivered its ruling. He concluded, therefore, that the appellant cannot fault the trial court on the ground that it acted on an improper preliminary objection and,

concluded that, the case of Ester Chakupewa (supra) was distinguishable. We have carefully considered the rival submissions in respect of the first and second grounds of appeal, the record of this appeal, the authorities relied on by the learned counsel for the parties, as well as the applicable provisions of the law. In our view, the two grounds of appeal can be addressed together as the central question is whether, having found that the parties ought to have submitted their dispute to an arbitrator, it was appropriate, on the part of the trial court, to have the suit struck out instead of having it stayed. This issue at hand resonates with the earlier questions which prefaced this Judgment of the Court regarding the appropriate course which a court should take where parties have chosen an arbitration route over litigation. A proper sequence in addressing the questions raised herein, therefore, starts by looking at the arguments regarding the propriety of the preliminary objection since it is its conclusion which led to the striking out of the suit. In his submission, Dr. Nguluma assailed the trial court's ruling on the grounds that there was no valid preliminary objection pleaded and filed in court. But connected to that submission was his contention that, even if there was one, the trial court ought to have stayed the proceedings instead of striking out the entire suit. As already demonstrated, those two 9

points were vehemently opposed by Ms. Mahunga and Mr. Bantu in their submissions. As for us, based on what the record of this appeal reveals, we are of the view, firstly, that the second ground of appeal is misconceived. We hold that view because, even if there was no formal notice of objection as argued by Dr. Nguluma, the pleadings (which include the annexures annexed to them) having revealed to the court that the parties had an arbitration clause which obliged them to submit any of their dispute or difference to arbitration, that alone raised a sufficient preliminary point of law regarding whether it was appropriate for the trial court to proceed with the suit before it. The above position is not farfetched. In the case of Mukisa Biscuits Manufacturing Company (supra) (Law, J.A), while defining what constitutes a preliminary objection, the Court stated, thus: "So far as I am aware, a preliminary objection consists o f a point o f law which has been pleaded or which arises bv dear implication out o f pleadings, and which , if argued as a preliminary point, may dispose o f the suit Examples are an objection to the jurisdiction o f the Court, or a plea o f limitation, or a submission that the parties are bound bv the contract giving rise to the 10

suit to refer the dispute to arbitration" [Emphasis added]. Two points may be noted here: one, it is clear, based on the above excerpt, that, since the pleadings conspicuously revealed to the trial Judge that there was an arbitration clause requiring parties to submit to arbitration, and given that the first respondent had as well raised that point to the attention of the trial court earlier enough, be it as a concern or otherwise and the appellant was aware of it the respondent counsel's position, the appellant cannot claim to have been unaware or taken by surprise as Dr. Nguluma seems to suggest to us. Two, it is also clear, based on the case of Mukisa Biscuits (supra), that, a preliminary objection may be raised with a view to seek enforcement of an arbitral agreement. Based on those two points, we are of a settled view that, since issue raised by the respondent was of sufficient legal importance and more so beinga pure point of law; it qualifiedas~a' preliminary objection. Consequently, it was appropriate to have it resolved first as it constituted a preliminary point of law. To that end, the case of Ester Chakupewa (supra) was distinguishable since it was on a completely different subject other than an arbitration clause in a contract. But, secondly, having said that there was a sufficient legal issue worth being addressed by the trial court as it did and, having arrived at its

own findings, there comes the issue regarding whether the route taken by the trial court, which ended up striking out the suit, was an appropriate course. According to Dr. Nguluma, based on the decision of this Court in Scova Engineering (supra), the trial court erred, and the suit ought to have been stayed. His position was partly supported by Ms. Mahunga but opposed by Mr. Bantu who held a view that, a stay was unwarranted, simply because it is not automatic and, none of the parties moved the court as required by the law. So, in Mr. Bantu's view, the suit was rightly struck out. In his ruling, the learned trial Judge was not short of reasons regarding why he chose the route which Mr. Bantu has supported. The trial Judge's reasoning was based on discouraging the practice by parties who know very well that they should abide by their agreement to arbitrate and yet rush to the courts to file suits which, having been stayed creates an endless circle of backlogs. While the reasoning of the learned trial Judge is, indeed, laden with practical wisdom, we pose to ask what does the law say in a situation where the court finds that the parties before it ought to have submitted their dispute to arbitration in line with their arbitration agreement? In our view, as a matter of general principle, when parties with an arbitration agreement bring their dispute to court instead of pursuing their earlier agreed arbitral route, the court, once satisfied as to the validity of 12

that arbitral clause, should obviously stay its proceedings and refer the matter to arbitration. That approach is warranted because it aligns well with the principle of party autonomy envisaged under section 5 (b) of the Arbitration Act, which respects the parties' initial choice to resolve disputes through arbitration. However, there are, in our view, three exceptions which may necessitate a court not to order a stay of proceedings: first, is where it is shown that the arbitration agreement is null and void, inoperative or incapable of being performed. Second\ where it is proved that the parties have waived their right to submit to arbitration or repudiated from the arbitration agreement. (See The Elizabeth H [1962] 1 Lloyd's Rep. 172; John Downing vs. Al Tameer Establishment [2002] EWCA Civ 721 and Aero-Gate Pte Ltd vs. Engen Marine Engineering Pte Ltd [2013] SGHC 148 at [39], We note, however, that in his oral clarifications to his written submissions, however, Dr. Nguluma tried to convince us to believe that, since both parties in this case had submitted themselves to the jurisdiction of the court, they waived their right to resort to arbitration. While we are aware of the cases we have cited hereabove regarding waiver or repudiation, we do not think the waiver or repudiation principle would apply where there is an outright contestation of the suit in favour of 13

arbitration by the first respondent and more so where both parties did not contest the validity of the arbitral clause. In the Indian case of Ministry of Sound International Ltd. vs. Indus Renaissance Partners Entertainment Pvt. Ltd., 156 (2009) DLT 406, for instance, it was held that, a waiver of the right to arbitrate is not an automatic exercise but one that depends on specific circumstances and conduct of the parties. As such, in the case of John Downing (supra), the English Court held that a contention that no contract existed coupled with a refusal to appoint an arbitrator amounted to a repudiation of an arbitration agreement that may be accepted by commencement of proceedings in court. In the case before us, we do not think that the first respondent's reluctance to bypass the arbitration clause was a conduct that was consistent with Dr. Nguluma's waiver assertion. Third, is where the court, having examined the facts of the case and the scope of the arbitration agreement, finds that the suit falls outside the scope of that arbitration agreement. However, as far as this appeal is concerned, we do not think that any of those exceptions able applies. In our view, what we need to examine keenly under our law, is the import of sections 14 and 15 of the Arbitration Act. Whereas section 14 (1) of the Act grants power to the court before which a suit is filed to refer parties to arbitration in line with their initial agreement, section 15 is specifically about 14

the right which a party to such an arbitration agreement enjoys of having the court proceedings stayed in favour of arbitration. In his submission, however, Mr. Bantu argued that a stay of a suit under both sections 14 and 15 is not automatic but a party must move the court to act. Essentially, Mr. Bantu's submission on that point is legally correct but it is not without qualification. In essence, the issue raised in his submission is whether a court before which a suit is brought should, in a matter which it is satisfied that should have been submitted to arbitration, stay that suit even if there is no formal application to that effect. A response to this issue is what we consider a general qualification to the submission made by Mr. Bantu. We shall clarify on that. As alluded to earlier hereabove, sections 14 (1) and 15 (1) and (4) of the Arbitration Act are clear that, courts have power to refer parties to arbitration as well as stay proceedings pending arbitration where any o f the parties so applies, unless it finds, prima facie, that no valid arbitration agreement exists (meaning that the arbitration agreement is null and void, inoperative or incapable of being performed). It is worth noting, however, that, under section 14 (1) of the Act, the court may refer a matter to arbitration once it is satisfied that the parties'arbitration agreement is valid. The court may do so as part of its inherent right to manage its proceedings and will thereby stay the proceedings in favour of arbitration. 15

In the Singaporean case of Gulf Hibiscus Ltd vs. Rex International Holding Ltd and Another [2017] SGHC 210, the court held that: "The power to order a case management stay is part o f the Court's own inherent and immediate powers to control proceedings before it...the existence o f an arbitration agreement between the parties would give strong grounds for a stay of Court proceedings taken in contravention o f that agreement... "[Emphasis added]. In yet another the case of Tomolugen Holdings Ltd and another vs. Silica Investors Ltd and other appeals [2015] SGCA 57, the Court of Appeal of Singapore held that: The Court must in every case aim to strike a balance between three higher-order concerns that may pull in different considerations: first, a plaintiff’ s right to choose whom he wants to use and where; second, the Court's desire to prevent a plaintiff from circumventing the operation o f an arbitration clause; and third \ the Court's inherent power to manage its processes to prevent an abuse of process and ensure the efficient and fair resolution o f disputes. The balance that is struck must ultimately serve the ends o f justice". [Emphasis added]. 16

The above cited authorities are, in our view, quite persuasive and relevant to our discussion. However, once a court finds that the parties should be referred to arbitration under section 14 (1) of the Act, should it proceed to strike or dismiss the case from its records, or should it proceed under section 15 of the Arbitration Act to stay the proceedings pending the outcomes of the arbitration? Although section 14 (1) of the Act does not state further what should be the course to take in respect ofthematter which isthe subject of the referral order of the Court, in ourview, the response to that question, which we also raised at the commencement of this Judgement of the Court, is clear when one considers what this Court stated in the case of Scova Engineering (supra). In that case, this Court, after referring to its earlier decision in Sunshine Furniture Co. Ltd vs. Maersk China Shipping Co. Ltd & Another [2020] TZCA 1934 (TanzLII), was very categorical that: "the court in which the suit is instituted has discretion to stay the suit once it learns o f existence o f an agreement between the ____________ . __________ parties to sue in a particular forum, whether foreign or not. For, it neither can dismiss the suit because it has not heard and determined it on the merits nor can it strike it out because, except for the choice o f a different forum, it is otherwise competent to try the matter". [Emphasis added]. 17

The above quoted excerpt does tally with what the Singaporean cases of Gulf Hibiscus Ltd (supra) and Tomolugen Holdings Ltd and another (supra) stated in their conclusion regarding the inherent powers which the Court has in staying a suit in favour of arbitration. The decision of this Court in the case of Scova Engineering (supra) indicates that, once a court learns of the existence of a valid arbitration clause which would warrant a referral of the parties' disputes to arbitration, it has the discretion to exercise and stay the suit. In that regard, we wish to add that, such discretion is exercisable even without there being a formal application to stay the suit. Whether such a stay of proceedings will be regarded as a case management stay, given that it is done at the court's discretion, or a statutory stay in its proper context under section 15 (1) and (4) of the Act, it makes no difference because the end results will be the same, the proceedings will be temporarily halted in favour of arbitration. We are fully aware that, a stay under section 15 (1) and (4) of the Act is statutorily provided for unlike a stay which would naturally flow from section 14(1) of the Act when a Court invokes its discretion under that provision. However, as we stated, by necessary implication, once a referral of the parties to arbitration is ordered under section 14 (1) of the Act, such an order will automatically necessitate a time bound stay of the suit in question, just as a stay under section 15 (1) and (4) of that Act would 18

demand, whether applied for or not, to pave way for the parties' submission to arbitration in accordance with their agreement. In the English case of Reichhold Norway ASA & Another vs. Goldman Sachs International [1999] EWCA Civ 1703), the English court, when interpreting section 9 (4) of the English Arbitration Act, 1996, (which is essentially in pari materia with our section 15 (4) of Cap. 15 R.E. 2020), stated that: - - - ------------------------ "It has been observed that English Courts have accepted that a Court has "inherentjurisdiction" to stay its own proceedings where the action depends upon the outcome o f an arbitration between either the same or different parties". In that case, the court was of the view that such a stay may be ordered by the court even where the requirements of that section 9 (4) are not satisfied. In our view, since section 15 (4) of the Arbitration Act is in pari materia with that English provision pointed out herein, the same consideration will apply even to our jurisdiction. In that regard, even where a matter has been referred to an arbitration under section 14 (1) of the Act, a stay order will follow as a necessary implication, and the suit cannot be terminated by the court. 19

The necessity to stay the proceedings flows from three basic reasons: first, is the inherent authority which entitles the court, while managing its own proceedings, to refer parties to arbitration. Second, is because a stay order acknowledges the parties' agreement to arbitrate and suspends the court proceedings while the arbitration takes place. Essentially, it is the court's duty to ensure that the sanctity of the Agreement between the parties prevailed. If the parties have chosen to arbitrate their disputes, then these disputes should be determined by way of arbitration and not by the courts. Doing so promotes not only the long- cherished principle of party autonomy but also the principle embedded in the Latin maxim of pacta sunt servanda thereby promoting a pro-arbitration approach. See for that matter, the cases of Scova Engineering (supra), Jovet Tanzania Limited vs. Bavaria N.V [2022] TZCA 557 (TanzLII); Zurich Australian Insurance Limited T/A Zurich New Zealand vs. Cognition Education [2014] NZSC 188 and Sodzawiczny vs. Ruhan [2018] EWHC 1908 (Comm), In Sodzawiczny vs. Ruhan (supra), a decision we consider persuasive, the court was of the view that, 'if a dispute is arbitral, effect should be given to the parties'bargain to arbitrate it That applies to any dispute with which the court proceedings are, or will foreseeably be, concerned.' 20

The third reason regarding why a stay of the proceedings should be necessary is that such a stay is time bound, and, for that reason, it preserves the possibility of resuming litigation if, for any.reasonabie cause, the arbitration fails, and the dispute remains unresolved. From the foregoing discussion, it is our considered view, therefore, that the first ground of appeal, and partly the second, have merit. Once a court is satisfied that the parties' arbitration agreement is valid and their dispute fits within its scope to warrant a reference to arbitration, the correct approach which it must take is not to strike out or dismiss the proceedings but to have them stayed pending the outcomes of the arbitration proceedings to be commenced in line with the arbitration agreement. The decision of this Court in Scova Engineering (supra) is quite instructive on that point. Concerning the third and fourth grounds of appeal which Dr. Nguluma combined and argued jointly, the complaint is that the trial judge should not have awarded costs because, first, the matter was determined at a preliminary stage and, second, both parties were equally on a wrong footing having submitted themselves to the jurisdiction of the court in breach of their arbitration agreement. He contended, therefore, that none should have been awarded costs and urged this Court to allow the appeal, set aside the ruling and drawn order of the trial court and direct the High 21

Court to proceed with the hearing of the matter. However, both Ms. Mahunga and Mr. Bantu were averse to Dr. Nguluma's submission. For our part, we do not think these two last grounds of appeal should detain us long. It is trite law that costs are awarded at the discretion of the court. In the appeal before us, the trial Judge exercised his discretion and stated the reasons why he awarded costs. It remains, as a matter of principle, therefore, that, where-the-court exercised its-discretion, that discretion would not be disturbed unless matters that were irrelevant to the issue had been taken into consideration or the court had applied a wrong principle of law; see: Kohil and others vs. Bachulal Popatlal [1947] EA 219 and Kiska Ltd vs. Augelias [1969] EA 6. In our view, as we examine the record of this appeal, we see no reasons why we should fault the learned trial judge on the issue of award of costs because, all parties had time to prepare and appear before the court to argue the preliminary objection, meaning that, time and resources were duly spent. Moreover, had the appellant heeded to the first respondent's concern about the need to adhere to the arbitration clause, wisdom would have perhaps prevailed. The third and fourth grounds of appeal are, thus, unmerited and we hereby reject them.

In the upshot of what we have discussed hereabove, we hereby allow this appeal to the extent stated herein, set aside the decision of the High Court and, direct that the relevant file be sent back to the trial court for it to make appropriate orders in accordance with the applicable law. In the circumstances of this appeal, we make no orders as to costs. It is so ordered. DATED at DODOMA this 1s t day of September, 2025. M. C. LEVIRA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgement delivered this 3r d day of September, 2025 in the presence of Mr. Alexander Thomas Nguluma, learned counsel for the appellant and Denis Mwaisiga learned counsel for the 2n d respondent holding brief for the 1s t respondent via virtual Court and Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the original. 23