Court dismisses banks’ case against power firm

DAR ES SALAAM: THE High Court’s Commercial Division has dismissed the application lodged by two Standard Chartered Banks, seeking to challenge the decision of setting aside registration of foreign judgment for 168,800,063.87 US dollars payments against Independent Power Tanzania Limited (IPTL).

Judge ruled against the two banks, Standard Chartered Bank (Hong Kong) Limited and Standard Chartered Bank Malaysia Berhad, the applicants, after failure to prosecute their application for extension of time to lodge a notice of intention to appeal against such High Court decision.

“I find the applicants failed to prosecute their application and therefore I hereby dismiss it with costs. It is so ordered. Right of Appeal explained,” the judge declared in a ruling delivered recently in Dar es Salaam.

Before reaching into such a decision, the judge had to determine some issues lodged by IPTL and VIP Engineering and Marketing Limited on whether the applicants improperly filed an amended chamber summons without leave of the Court, as such it need not be considered.

The applicants referred the court to what they termed to be applicable procedural regime governing the Commercial Division; Rule 24(2) of the High Court (Commercial Division) Procedure Rules, 2012, where a party is expressly permitted to amend pleadings before service without leave of the Court.

While the judge agreed with the applicants that rule 24(2), in a fit case, gives leeway to file an amended application without leave of the court before effecting service of the application, he decided, however, that such opportunity do not exist under circumstances of present matter.

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“The instant matter, is an application for extension of time to lodge a notice of appeal to the Court of Appeal. The governing law is section 11(1) of the Appellate Jurisdiction Act. Be the Civil Procedure Code or Rule 24(2) of the High Court (Commercial Division) Procedure Rules, are the laws which are inapplicable to the instant matter,” the judge said.

The applicants obtained a foreign judgment from the High Court of Justice of England in November 2016 against IPTL arising from a loan facility agreement. Pursuant thereto, they moved the High Court of Tanzania (Commercial Division) seeking registration of the said foreign judgment under the Reciprocal Enforcement of Foreign Judgments Act.

The Court, being satisfied that the statutory requirements had been met, granted an ex parte order on February 9, 2017, registering the foreign judgment in Tanzania. Subsequently, upon being served with the order of registration, IPTL and VIP Engineering challenged the same by filing two applications.

Upon hearing the parties, the High Court, by its ruling delivered on August 26, 2020, allowed the applications and set aside the registration of the foreign judgment. The court ruled that there existed parallel proceedings in Tanzanian courts concerning the same subject matter, thereby posing a risk of conflicting judicial determinations.

It was at that point when the applicants were aggrieved and crossed over to the Court of Appeal. After hitting bricks walls, the applicants later came back to the High Court by way of filing the application for extension of time to lodge a fresh notice of intention to appeal.