| dc.contributor.author | MWARIJA, KOROSSO, J.A. AND LEVIRA, J.A J.A., | |
| dc.date.accessioned | 2023-04-21T07:34:42Z | |
| dc.date.available | 2023-04-21T07:34:42Z | |
| dc.date.issued | 2019-08-06 | |
| dc.identifier.uri | http://localhost/handle/123456789/1045 | |
| dc.description | JOVET TANZANIA LIMITED VS. BAVARIAN N.V COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM (Mwambegele, Fikirini and Makungu JJ. A)
CIVIL APPEAL NO. 207 OF 2018
(Appeal from the Ruling of the High Court of Tanzania (Commercial Division) in Misc. Civil Cause No. 183 of 2018 by Philip J)
Civil Procedure and Practice- Appeal- Whether the Court of Appeal can determine an issue not decided in trial or lower Court?
Civil Procedure and Practice- Arbitration – What amount to taking proceedings in Court of law for the purpose of waiving right to go to arbitration proceedings?
Contract- Arbitration clause- whether arbitration clause of resolve dispute without involving Courts in Tanzania amounts to ousting jurisdiction of the Court?
Facts;
This appeal has its origin in the decision of the Commercial Division of the High Court in Miscellaneous Commercial Cause No. 183 of 2018 in which they granted the respondent's application for stay of proceedings in Commercial Case No. 94 of 2018 pending arbitration. In their agreement, the parties agreed to resolve their dispute in Amsterdam, the Netherlands by the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut) by way of arbitration. The language of the dispute resolution was chosen to be English.
The dispute arose after the respondent issued the appellant with a termination notice under the pretext that the latter did not achieve the minimum volume of stock and was not making due payments timely. The appellant was aggrieved by the notice and sought recourse in the Commercial Division of the High Court by instituting Commercial Case No. 94 of 2018 seeking, inter alia, a declaration that the appellant's failure to achieve the minimum volumes sale, was justifiable and thus the Termination Notice was null and void and an order that the respondent specifically performs the terms and conditions of the Agreement.
Upon being served with the Chamber Summons and affidavit in respect of Miscellaneous Commercial Application No. 171 of 2018, the respondent filed a counter affidavit and a preliminary objection. As already stated above, the High Court decided in favour of the respondent by the dispute to refer to arbitration within ninety (90) days.
Held;
1. The Court reinstated the principle enunciated in the case of Elisa Mosses
Msaki v. Yesaya Ngateu Matee [1990] T.L.R. 90 in which it was held "This Court will only look into matters which came up in the lower Court and decided; not on which were not raised nor decided by neither the trial Court nor the High Court on appeal".
2. The Court borrowed the holding of the Supreme Court of India in the case of Rashtriya Ispat Nigam Limited and Another v. M/S Verma Transport Company, Appeal (Civil) 3420 of 2006 where it was held among others "... taking any other steps in the proceedings must be confined to taking steps in the proceedings for resolution of the substantial dispute in the suit Appearing and contesting the interlocutory applications by seeking either vacation thereof or modification thereof cannot be said to be displaying an unambiguous intention to acquiesce in the suit and to waive the benefit of the arbitration agreement"
3. The parties to the agreement having been agreed that disputes arising out of the Agreement would be resolved by a certain forum, they did not mean to oust the jurisdiction of the courts in Tanzania.
Appeal dismissed with costs.
Case laws referred to;
1. Elisa Mosses Msaki v. Yesaya Ngateu Matee [1990] T.L.R. 90
2. Rashtriya Ispat Nigam Limited and Another v. M/S Verma Transport Company, Appeal (Civil) 3420 of 2006 | en_US |
| dc.description.abstract | 1. The Court reinstated the principle enunciated in the case of Elisa Mosses
Msaki v. Yesaya Ngateu Matee [1990] T.L.R. 90 in which it was held "This Court will only look into matters which came up in the lower Court and decided; not on which were not raised nor decided by neither the trial Court nor the High Court on appeal".
2. The Court borrowed the holding of the Supreme Court of India in the case of Rashtriya Ispat Nigam Limited and Another v. M/S Verma Transport Company, Appeal (Civil) 3420 of 2006 where it was held among others "... taking any other steps in the proceedings must be confined to taking steps in the proceedings for resolution of the substantial dispute in the suit Appearing and contesting the interlocutory applications by seeking either vacation thereof or modification thereof cannot be said to be displaying an unambiguous intention to acquiesce in the suit and to waive the benefit of the arbitration agreement"
3. The parties to the agreement having been agreed that disputes arising out of the Agreement would be resolved by a certain forum, they did not mean to oust the jurisdiction of the courts in Tanzania. | en_US |
| dc.language.iso | en | en_US |
| dc.publisher | THE COURT OF APPEAL OF TANZANIA, DAR ES SALAAM. | en_US |
| dc.subject | DAR ES SALAAM. | en_US |
| dc.title | JOVET TANZANIA LIMITED V.S BAVARIA N.V CIVIL APPLICATION NO. 207 OF 2018 | en_US |
| dc.title.alternative | CIVIL APPLICATION NO. 207 OF 2018 | en_US |
