Oilcom Tanzania Limited vs Oryx Oil Company Limited and Another (Civil Reference No. 915 of 2024) [2024] TZCA 1090 (13 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL REFERENCE NO. 915 OF 2024 fCORAM: MKUYE. J.A.. MWAMPASHI. J.A. And NGWEMBE. 3.A.) OILCOM TANZANIA LIMITED.......................................................APPLICANT VERSUS

1. ORYX OIL COMPANY LIMITED .................... ..................... 1 st RESPONDENT
2. ORYX ENERGIES S A ...................................... ................2 n d RESPONDENT (Application for Reference from the Decision of the single Justice of the Court of Appeal of Tanzania at Dar es Salaam) ( Masoud. J.A1 ) dated the 03r d day of October, 2024 in Civil Reference No. 06 of 2024 RULING OF THE COURT 01s t& l J h November, 2024 MWAMPASHI. J.A.: It all started on 10.06.2024, when Oryx Oil Company Limited and Oryx Energies SA, the respondents herein, with a view of filing their application for stay of execution of an arbitral award, approached the Registrar of the Court for that purpose. The Registrar rejected the application and refused to admit the application. In so rejecting the respondents' application, the Registrar stated: "THE EX PARTE ORDER FOR STA Y OF EXECUTION OF THE FINAL ARBITRAL AWARD IN MISC CIVIL CAUSE NO. 27821 OF[2024] WASISSUED BY THIS COURT ON 7™ MAY, [2024] PENDING HEARING OF THE

APPLICATION INTER PARTES AND THE APPEAL IS RESERVED FOR JUDGMENT HENCE NO NEED OF FURTHER APPLICA TIONS" [Emphasis added] At this juncture, it should also be noted that, as stated in the above rejection order by the Registrar, when the admission of the respondents7 application for stay of execution of the arbitral award was being rejected by the Registrar on 10.06.2024, the respondents herein, had, in Civil Application No. 299/01 of 2024, obtained an ex parte stay order of the execution of the arbitral award on 07.05.2023. Furthermore, and more importantly, the hearing and determination of the application interparteswas pending before the Court. Aggrieved by the decision of the Registrar rejecting their application, the respondents, in terms of rule 14 (10) and (11) (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules), vide Civil Reference No. 06 of 2024, referred their grievance to the single Justice of the Court (Masoud, J.A), seeking reversal of the decision by the Registrar. The single Justice of the Court determined the matter ex parte a s required by rule 14 (10) of the Rules and found that in rejecting the respondents' application, the Registrar acted beyond the scope of his administrative mandate. The decision of the Registrar was thus, reversed with an order for the respondents' application to be received for admission. Hereunder, is what the single Justice of the Court observed and decided:

" Having considered the reference in the light o f the oral submission made by Mr. Nyika, I am satisfied that the application was timeously made in writing and is merited because the reasons assigned by the Honourable Registrar in his decision rejecting filing o f the applicants'application for stay o f execution were, in my view, beyond the scope o f his administrative mandate. Consequently, in terms o f rule 14 (12) o f the Rules, I reverse the decision and proceed to order admission o f the applicants' application for stay o f execution o f a decree o f the High Court which is a subject o f Execution No. 12491 as indicated in the reference at hand". Dissatisfied with the decision of the single Justice, the applicant has, in terms of rule 62 (1) and (2) of the Rules preferred the instant application for reference. The Court is being asked to reverse the order of the single Justice of the Court which reversed the Registrar's decision rejecting the admission and registration of the respondent's application for stay of execution. The application is premised upon the following four grounds:

1. That the Honourable Justice o f Appeal erred in law by and in fact by holding that the reasons assigned by the Honourable Registrar in his decision rejecting the filing o f the Respondents' application for stay o f execution were beyond the scope o f his administrative mandate.
2. The Court erred in its decision by failing to consider other important facts surrounding the Registrar's refusal to admit the Respondents'application for stay o f execution, specifically, the Court erred to take into account

that the Respondents had already filed another application for stay under Rules 4(2) (a), (b), 11(3), 11(4), 11(5) (a), 11(5) (b) and 11 (6) and obtained an exparte order for a stay o f execution on 07thMay, 2024 in Civil Application No. 299/01 o f 2024 between Oryx OH Company Limited & Oryx Energies Sa versus Oitcom Tanzania Limited, which was the basis o f the Hon. Registrar's decision to reject the Respondents'application for stay o f execution. 3. That the Court erredby failing to consider other critical facts surrounding in Civil Application No. 299/01 of 2024 between Oryx OH Company Limited & Oryx Energies Sa versus Oiicom Tanzania Limited, particularly the Respondents'arguments regarding the nature and status o f the application, which arguments, were reiterated and amplified in Execution No. 12491 o f 2024 before the High Court o f Tanzania, Dar es Saiaam Sub-Registry to the effect that, the application before the Court was an application for stay o f execution. 4. That the Honourable Justice o f Appeal erred in law and in fact by misapplying relevant legal precedents and amendments, leading to an erroneous decision. At the hearing of the application, the applicant was represented by a team of three learned advocates namely: Messrs. Anthony Mark, Thobias Laizer and Sabbas Shayo. On the other side, the respondents had the services of Mr. Gasper Nyika, also learned advocate. Upon being invited to argue the application, Mr. Mark began by adopting the written submissions together with the list of authorities, he had earlier filed on 25.10.2024. It is noted that, in the written submissions, the applicant

abandoned ground 4. Further, whereas ground 1 was argued separately, grounds 2 and 3 were argued conjointly. However, having considered the substance of the Registrar's order refusing to admit the respondents' application, the ex parte order made by the single Justice of the Court and the submissions made for and against the application, we, at the outset, find grounds 2 and 3 misconceived and irrelevant. Under the circumstances of this matter, where the rejection order by the Registrar in which the reason for the rejection is clearly expressed, was availed to the single Justice of the Court and where the only issue before him was whether the Registrar had acted within the scope of his mandate, it cannot be complained on grounds 2 and 3 of the application that there were any other material facts which needed to be availed to the single Justice of the Court, for him to reach at the decision on the issue before him. It is our observation that, based on the Registrar's rejection order, and the ex parte order by the single Justice of the Court, though to the Registrar, the rejected application was similar to the pending application before the Court, the issue before the single Justice of the Court was, however, not on the two applications being similar or not. As we have alluded to above, the issue before the single Justice of the Court was simply on whether the rejection was within the Registrar's scope of administrative mandate. We are thus, of a settled mind that, the facts availed to the single Justice of the Court were sufficient for the determination of the

issue before him and there was no need of any other facts as it is complained on grounds 2 and 3 of the application. For that reason, grounds 2 and 3 are thus, summarily dismissed for being misconceived and irrelevant. From what we have discussed above and for the purposes of the instant application, the only ground worth consideration and determination of the Court is ground 1. The critical issue arising from ground 1 is whether the Registrar's rejection of the respondents' application on the ground that there was, in existence, another similar application pending before the Court or in other words, that the application was res sub-judice, was within the scope of his mandate. The arguments on ground 1 in the applicant's written submissions and the respective amplification and explanations at the hearing of the application by the advocates for the applicant, were to the following effect: It was argued by Mr. Mark that under rule 14 (3) read together with rule 12, of the Rules, the Registrar has powers to reject documents which are defective not only in form but also which are defective in other aspects. Focusing on the phrase "defective in other aspects", Mr. Mark referred us to the definition of the word "defective" as given by Black's Law Dictionary, 8th Ed. wherein the word is defined to mean "lacking in legalsufficiency” In that respect, it was submitted by Mr. Mark that, as at the time the respondents attempted to file their application which was rejected by the Registrar, there was another similar

application pending before the Court, then the rejected application lacked legal sufficiency hence, defective in other aspects and the Registrar had powers to reject it under rule 14 (3) of the Rules. It was insisted that, in a broader sense, the Registrar is given discretion and has wide latitude in rejecting documents which are defective in other aspects. It was further submitted by Mr. Mark that, the powers of the Registrar under rule 14 (3) of the Rules are not cosmetic and that the Registrar was duty bound to prevent the Court from being overburdened with unnecessary or improper applications. He insisted that the respondents' rejected application was intended to be filed in bad faith and it amounted to an abuse of court process. Mr. Mark expounded that, the rejected application amounted to multiple applications resulting into an endless litigations and further that, in filing the application, the respondents were trying to ride two horses simultaneously. To cement his argument that the rejected application was an abuse of court process, Mr. Mark referred the Court to the decision of the Court in Jalibu Mrisho Mwenemilao v. The Hon. Attorney General and Others (Civil Application No. 53817 of 2022) [2023] TZCA 17799 (7 November, 2023) and also of the High Court of Tanzania in JVTangerm Constructions Co. Limited and Another v. Tanzania Posts Authority and Another (Commercial Case No 117 of 2015) [2021] TZHC 3362 (1 October,2021). It was thus, argued by him that, the Registrar had mandate to reject the

respondents' application. He also submitted that it was wrong for the single Justice of the Court to reverse the Registrar's decision. He thus, prayed for the decision of the single Justice of the Court to be reversed otherwise the Registrar's powers under rule 14 (3) of the Rules, would be undermined. In addition to the submissions made by Mr. Mark, it was argued by Mr. Laizer that, the rejected respondents' application was intended to be used as a shield in case the similar pending application fails. He also submitted that, had the single Justice of the Court been adequately informed of the existence of an ex parte order in the pending application, he would not have reversed the Registrar's decision. Mr. Nyika strongly opposed the application arguing that in rejecting the respondents' application on the ground that the same was not maintainable because there was already another similar application pending before the Court, the Registrar acted beyond the powers given to him under rule 14 (3) of the Rules. He insisted that the Registrar's power is confined to rejection of documents which are defective in form or those which are defective in other aspects. Mr. Nyika disagreed with the definition of the phrase "defective in other aspects" as given by the counsel for the applicant. He argued that according to the rule of ejusdem generis, "defective in other aspects" should be in aspects of the same kind of those provided under rule 12 of the Rules.

It was further argued by Mr. Nyika that, the fact that the Registrar's power to reject documents under rule 14 (3) of the Rules is confined to documents defective in form and not in substance, can also be inferred from sub-rules (4) and (5) of rule 14 whereby the document refused by the Registrar can be amended or adjusted before being filed. He insisted that the Registrar had no power to reject the respondents7application on the ground that the application was res sub-judice and the single Justice of the Court did not err in reversing the decision. Furthermore, it was argued by Mr. Nyika that the only issue before the single Justice of the Court was whether it was within the Registrar's mandate to reject the respondents' application on the ground that there existed another similar application pending before the Court. He pointed out that whether the rejected application was similar to the pending application hence an abuse of court process or not maintainable, were matters not before the single Justice of the Court. Mr. Nyika submitted that in applications for reference, the Court deals only with matters which were dealt with and decided by the single Justice of the Court. On this, he referred us to our decisions in Gem Rock Ventures Co. Ltd v. Yona Hamis Mvutah, (Civil Reference No. 1 of 2010) [2011] TZCA 200(6 October 2011;TanzLII), Tri-Telecommunication (T) Ltd v. Tanzania Telecommunication Co. Ltd and 3 Others (Civil Reference No. 12 of 2003) [2005] TZCA 45(2 September 2005;TanzLII) and Phares Partson Matonya

(as the Administrator of the Estate of the Late Partson Matonya) v. Registrar, Industrial Court of Tanzania and 2 Others (Civil Reference No. 26 of 2019) [2023] TZCA 160(29 March 2023;TanzLII). Finally, he prayed for the application to be dismissed with costs. In their brief rejoinder, the counsel for the applicant, reiterated their earlier stance that since the existence of the pending respondents' similar application was in his knowledge then, in rejecting the respondents' application, the Registrar acted within the scope of his mandate. It was insisted that the reason for the rejection of the application that there was a similar application pending before the Court was sound empowering the Registrar to reject the application. It was also argued that, the cases cited by Mr. Nyika are distinguishable because unlike the instant application which is predicated upon rule 62 (2) of the Rules, the cases cited by Mr. Nyika were for striking out notice of appeal and extension of time hence, not based on rule 62 (2) of the Rules. As pointed out earlier, the only issue for our determination is whether the decision by the single Justice of the Court which reversed the Registrar's decision rejecting to admit the respondents' application for stay of execution on the ground that the application was res sub-judice, can be faulted. In other words, the issue is whether it was within the Registrar's power to reject the respondents' application on the ground that the application is res sub-judice.

This issue takes us to rule 14 (3) read together with rule 12 of the Rules underwhich the mandate of the Registrar to refuse documents, is given and delimited. It is provided under rule 14 (3) of the Rules, that: "14.-(3) The Registrar, Registrar o f the High Court or tribunal or deputy registrar thereof, as the case may be, may refuse to accept any document which does not comply with the requirements o f rule 12 or which is defective in other aspects'1 . As to what are the requirements the documents for use in the Court, in as far as documents in civil applications are concerned, should comply with, it is provided under rule 12 (1), (2), (4) and (5) of the Rules, that: " 12.-(1) Except where the nature of the document renders it impracticable, every document prepared for use in the Court shall be on paper of durable quality/ and shall be dear and easily legible and may be produced by computer, printing, lithograph, stencil duplicating, photography, xerography, typewriting, electronically generated or any combination o f these media. (2) Where these Rules requires the filing o f a document in the Court, that document may be filed electronically and the Judicature and Application o f Laws (Electronic Filing) Rules, shall apply mutatis mutandis.

(4) The pages of every application and, in criminal cases, o f the record o f appeal, and in civil cases, o f the memorandum o f appeal and the record o f appeal shall be numbered consecutively. (5) In all applications and appeals, every tenth fine o f each page o f the record shall be indicated in the margin on the right side o f the sheet". [Emphasis supplied]. It is clear from the provisions under rule 12 of the Rules, as reproduced above, that the requirements to be complied with for a document to be accepted and not refused by the Registrar under rule 14 (3) of the Rules, are in respect of their form and not their substance. It is only where a document is on a paper not of durable quality or not clear and easily legible or where the pages are not numbered consecutively or where every tenth line of each page is not indicated in the margin on the right side of the sheet, that the Registrar may refuse to accept it. In the instant case, the refusal by the Registrar to accept the respondents' application was not based on the reason that the application was not in the required form but that the application was ressub- judice. The rejection was thus based on the reason that goes into the substance of the application and not on a defect in form. It is our firm view that, the power of the Registrar to refuse documents under rule 14 (3) of the Rules is limited to the documents which are defective in form and not in substance.

With due respect, we are also not in agreement with the counsel for the applicant that the Registrar's rejection of the respondents' application is justifiable for a reason that since the rejected application was found by the Registrar to be ressub-judice then it was defective in other aspects as provided under rule 14 (3) of the Rules. We are in agreement with Mr. Nyika that this is the case where the rule of ejusdem generis applies. The rule requires that, where in a statute, there are general words following particular specific words, the general words must be confined to things of the same kind as those specifically mentioned. See- Pan African Energy Tanzania Ltd v. Commissioner General Tanzania Revenue Authority (Civil Appeal No. 172 of 2020) [2021] 7ZCA 287(9 July 2021;TanzLII). Since the requirements to be complied with for the documents acceptable for use in the Court, failure of which render the documents defective and liable for rejection, are specifically stated under rule 12 of the Rules, then the phrase "defective in other aspects" referred to under rule 14 (3) of the Rules, must be read ejusdem generis with what is specifically provided under rule 12 of the Rules. The rejected application being res sub-judice is not a defect in form and it is not even closely related to the defects arising from noncompliance of the requirements specifically stated under rule 12 of the Rules. We are of a settled mind that, in rejecting the respondents' application on the ground that the same was res sub-judice, the Registrar acted beyond

the scope of his powers under rule 14 (3) of the Rules. The issue whether the application was not maintainable for being res sub-judice, was an issue not within the powers of the Registrar but the Court. It was not an administrative issue but an issue involving judicial adjudication hence, beyond the Registrar's mandate. We also note that in the rejection order, the Registrar, in justifying the rejection of the respondents' application on the ground which is not a defect in form but substantive, did so purporting to be the Court when he stated that "The ex parte order for stay o f execution o f the final arbitral award in Misc. Civil Cause no. 27821 o f [2024] was issued by this court on 7 th may, [2024]" With due respect, in doing so, the Registrar usurped the powers of the Court because the Registrar is not the Court. The Court is as defined by rule 3 of the Rules, to mean; the Court of Appeal of the United Republic of Tanzania established by the Constitution, and includes any division of that Court and a single Judge exercising any power vested in him sitting alone. As rightly argued by Mr. Nyika, the fact that the mandate of the Registrar in rejecting documents is limited to documents which are not in the required form as provided under rule 12 of the Rules and not otherwise, can also be inferred from sub-rules (4) and (5) of Rule 14. Under the said sub-rules, a party whose documents are rejected for not complying with the requirements under rule 12 of the Rules, has a chance of re-filing the said documents after

amending or adjusting them as directed by the Registrar. This is not the case where a document is rejected in the manner like the Registrar did in the instant case. In view of the foregoing, we find that in rejecting the respondents' application, the Registrar acted beyond the scope of his powers and the single Justice of the Court cannot be faulted in reversing the Registrar's decision and ordering the application to be accepted and admitted. The application for reference is thus, devoid of merit and it is accordingly dismissed with costs. DATED at DAR ES SALAAM this 12th day of November, 2024. R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 13th day of November, 2024 in the presence of Ms. Oliver Mark, learned counsel for the applicant and Ms. Irene Ruchaki, learned counsel for the respondent, is hereby certified as a true copy of the original. lU lfllW I A. S. CHjJGULU DEPUTY REGISTRAR COURT OF APPEAL