Reprieve for Dangote as top court quashes order to pay Sh350 million

Summary

  • The top court said the High Court (Commercial Division) was not justified to dismiss appeal by Dangote which was protesting judgment of Kivukoni Resident Magistrate’s Court that ordered them to pay Warnercom (T) Limited the sum.

Dar es Salaam. Cement manufacturer Dangote Industries Limited Tanzania won a reprieve after the Court of Appeal quashed a decision requiring the firm to pay air cargo carrier Sh350 million over alleged breach of contract.

The top court said the High Court (Commercial Division) was not justified to dismiss appeal by Dangote which was protesting judgment of Kivukoni Resident Magistrate’s Court that ordered them to pay Warnercom (T) Limited the sum.

“The decision of the first appellant court (commercial court) is hereby quashed and set aside.

The file is thus remitted to the court for determination of the appeal on merit before another judge,” judges Mwanaidi Kwariko, Issa Maige and Abraham Mwampashi said in their recent decision.

The commercial dispute dates back to 2019 when Warnercom sued Dangote at Kivukoni Resident Magistrate’s Court for payment of Sh400 million in specific and general damages for breach of contract.

Court records show that Dangote did not enter its defence against the suit, leaving the door open for Warnercom to ask the court to issue an ex parte (one-sided) judgment.

Dangote contested the ex parte decision, saying in the nature of the suit, an ex parte hearing was appropriate procedure instead of a judgment in default.

While the case was still pending for ruling, Dangote raised complaint that the Kivukoni Resident Magistrate’s Court did not have jurisdiction to hear the application.

The court, however, declined to entertain the complaint, saying it was improperly before it and ordered that the suit be heard ex parte. The court finally awarded Warnercom Sh350 million in damages. The cement company was aggrieved by the decision and appealed to the commercial division of the High Court.

In opposition to the appeal, Warnercom asked the court to dismiss the suit because Dangote had no right to file appeal against the ex parte judgment, arguing that such decision were not appealable.

Agreeing with Warnercom, the court dismissed the appeal for being premature.

The court sided with Warnercom that one cannot appeal against an ex parte judgment without first attempting to set it aside.

But in their recent decision, Court of Appeal judges rejected the High Court position that an ex parte judgment cannot be appealed against.

“Section 70 (2) of the CPC (Civil Procedure Act), unambiguous at it is, does not impose any condition for appealing against an ex parte judgment,” said the court.

“…as the provision of section 70 (2) of the CPC clearly and unambiguously provides for an automatic right of appeal against an ex-parte judgment, it is not for the court to narrow down its scope by implying that the legislature intended that such an appeal would be conditional upon there being an attempt to set the ex parte judgment aside,” said the judges