IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(COMMERCIAL DIVISION)

AT PAR ES SALAAM

COMMERCIAL CASE NO 85 OF 2023

BETWEEN

ANADOLU ANONIM TURK SIGORTA SIRKETI................................... PLAINTIFF

VERSUS

TANZANIA PORTS AUTHORITY................................................ Ist DEFENDANT

AUERBACH SCHIFFAHRT GmbH & Co. KG................................. 2nd DEFENDANT

THE ATTORNEY GENERAL........................................................ 3rd DEFENDANT

RULING

Date of Last Order: 05/02/ 2024

GONZI, J.

The plaintiff, an Insurance Company based in Turkey, filed the present

suit seeking from the 1st and 2nd Defendants USD 49,641.60 as

reimbursement for the compensation it had paid to Yapi Merkezi Insaat ve

Sanayi Anonim Sirket (the insured) for damage to the insured's cargo caused

by the 1st and 2nd defendants' negligence. The Plaintiff is also seeking

payment of USD 30,000 in general damages, interest and costs of the suit.

i
The Plaintiff alleged that the insured cargo was damaged during discharge

at the Dar es Salaam port due to mishandling by the 1st and 2nd defendants'

agents.

The pleadings show that the 2nd Defendant was the carrier of the

insured cargo that was to be shipped and discharged at the Dar es Salaam

port owned by the 1st Defendant. The plaintiff alleged that it had insured the

cargo in favour of the shipper Yapi Merkezi Insaat ve Sanayi Anonim Sirket

(the insured) and that now it seeks to recover from the persons responsible

for the loss the amount it paid the owner of the cargo.

The 1st and 3rd defendants filed a preliminary objection, arguing that

the case violates clause 4 of the Bill of Lading, which mandates that any

disputes related to the Bill of lading must be resolved in Germany Courts

under German Law where the carrier's business is located.

The second Defendant also raised preliminary objections that in terms

of the Bill of Lading No.ISA-ANT-DAR-001, the Point of Origin is Germany

and that Clause 4 of the Bill of Lading prescribes that any dispute arising

from the said Bill of Lading shall be determined in accordance with the laws

of Germany. The 2nd Defendant also raised an objection that the cause of

2
action by the Plaintiff is anchored on the Bill of Lading whose statutory time

limit is 1 year from the date of discharge of the goods under section 6(1)

and (3) of the Carriage of Goods by Sea Act, CAP164 of the Laws of Tanzania.

The third preliminary objection raised by the 2nd Defendant was that the Bill

of Lading prescribed Arbitration as the chosen mode of dispute settlement

and not the ordinary courts.

By leave of the court, the preliminary objections raised by the 1st, 2nd

and 3rd Defendants were argued by way of written submissions. The 1st and

3rd Defendants had the services of Ms. Jacqueline Kinyasi, learned State

Attorney. The 2nd Defendant had the services of Maosa & Co Advocates while

the Plaintiff had the services of Mr. Mkama Kaleb, learned Advocate. I thank

all counsel for their insightful submissions.

Starting with the preliminary objection filed by the 1st and 3rd Defendants, it

was submitted that clause 4 of the Bill of Lading states that:

i. Dispute related to the bill of lading will be determined exclusively

by the courts and under the law of the carrier's principal place of

business

3
 ii. The carrier's principal place of business is Hamburg, German.

Thus, any disputes will be subject to the jurisdiction.

Ms. Jacqueline Kinyasi, learned Counsel argued that a Bill of Lading is

a contract outlining the terms of carriage between the ship owner and the

shipper. In this case, clause 4 specifies that disputes will be resolved under

the German laws and courts. Section 7(1) of the Civil Procedure Code CAP

33 R.E 2019 allows parties to choose jurisdiction for their disputes. The

Court of Appeal has supported the choice of forum in its decision in the case

of Sunshine Furniture Co. Ltd vs. Maersk (China) Shipping Co. Ltd

and Nyota Tanzania Ltd Civil appeal No. 98 of 2016 CAT at Dar Es

Salaam ( Unreported at page 16 ). Ms. Kinyasi, learned Counsel

submitted that the court of Appeal in Sunshine Furniture (supra) endorsed

Mulla's view that courts should honor contractually chosen forum for disputes

and therefore the Court of Appeal affirmed that a Bill of Lading's forum

choice is binding, thereby confirming that parties can select specific forum

for their disputes. Ms. Kinyasi, learned Counsel submitted further that in the

case of Reliance Insurance Company (T) LTD v. CMA CGM Society

Anoyme and CMA CGM (Tanzania) Limited, Civil Appeal No. 179 of

2020, the Court of Appeal at page 13 affirmed that the parties can select a

4
litigation forum through a Bill of Lading. The learned counsel submitted that

forum choice doesn't remove the court's jurisdiction. She cited the case of

Scova Engineering S.P.A v. Mtibwa Sugar Estate Ltd, Civil Appeal No

133 of 2017, for that position.

Ms. Kinyasi, learned counsel prayed that the case be struck out instead

of being stayed, so as to allow the parties to proceed directly to the specified

forum as per the terms of the Bill of Lading. She argued that striking out the

case will prevent delays as any judgement from the specified forum will be

treated as foreign and enforceable decision under laws of Tanzanian. She

prayed for the court to sustain their Preliminary Objection with costs.

Mr. Mkama Kaleb, learned Advocate for the Plaintiff filed reply

submissions to the preliminary objection raised by the 1st and 3rd Defendants.

He argued that a Bill of Lading is a contract between the ship owner and the

shipper, defining the terms of goods carriage. This definition is also

referenced in the case of Sunshine Furniture Co Ltd v. Maersk (China)

Shipping Co. Ltd Civil Appeal No. 98 of 2016 (Unreported). He argued,

however, that the Plaintiff was not a party to the Bill of Lading and that this

suit is not founded on the Bill of Lading rather on the tort of negligence. Mr.

Mkama Kaleb, learned Advocate, submitted that according to Black's Law

5
Dictionary, 10th Edition, page 1279, "party to the contract" is defined as a

person involved in a legal transaction or proceeding. This term applies to

those entering into agreements, leases, or similar documents.

It was the argument of Mr. Mkama Kaleb, learned Advocate for the

Plaintiff that the parties identified in the Bill of Lading on page 1 thereof are

Voestalpine Railway Systems GmbH as the shipper of Goods and Dship

Carriers GmbH & Co .KG as the sea carrier. Neither the plaintiff nor the 1st

or 3rd defendants are listed as parties in the Bill of Lading. He argued that

the plaintiff not being a party to the Bill of Lading, is not bound by its terms,

including the choice of law and forum. He argued that as per the prevailing

legal precedents, one cannot be bound by or enforce terms of a contract to

which they are not an original party. Mr. Mkama relied on the case Coface

South Africa Insurance Co. Ltd v. Kamal Steel Limited, for this

principle. He argued that the plaintiff, as an insurance company, insured Yapi

Merkez Insaat Ve Sanayi Anonim Sirketi's Cargo. The insurance contract did

not modify the Bill of Lading or create a new agreement. He stressed that

under the doctrine of privity of contract, only parties to the contract have

rights in it. He added that in such cases the assignee (like the Plaintiff in this

case) steps into the shoes of the original party and can enforce those rights.

6
He relied on the case of Scova Engineering SPA v. Mtibwa Sugar

Estates Limited, Civil appeal No. 133 of 2017 (Unreported) where

the Court of Appeal ruled that contractual clauses only bind parties to the

contract, not strangers to it. He also cited the decisions by the Court of

Appeal in Kayanja v. New India Assurance Company Limited [1963]]

EA 295 and Tarlok Singh Nayar v. Sterling General Insurance

Company Limited (1966) EA 144 to support operation of the doctrine of

privity of contract.

Mr. Mkama, learned Advocate, submitted that the learned counsel for

the 1st and 3rd Defendants misinterpreted the Bill of Lading, thereby wrongly

identifying the parties involved in it and the Plaintiff's basis for the present

lawsuit. He clarified that the Plaintiff did not sue under the Bill of Lading but

for negligence by the Defendants in failing to protect the insured's cargo.

Mr. Mkama submitted that section 7(1) of the Civil Procedure Code [CAP. 33

R.E. 2019] grants this court jurisdiction over civil suits unless specifically

barred. He distinguished the case cited by the Defendants, in Sunshine

Furniture Co Ltd v. Maersk (China) Shipping Co. Ltd (supra) that it

does not apply in the matter at hand because in that case parties had directly

mentioned in the pleadings that the suit was founded on a Bill of Lading.

7
 In conclusion, Mr. Mkama, learned Advocate argued that the cause of

action arose in Dar es Salaam where the 1st and 3rd Defendants reside and

conduct their business. According to Section 18 of the Civil Procedure Code,

suits can be filed where any defendant resides or carries on business, or

where the cause of action arises. He submitted that the Court's jurisdiction,

is conferred by statute and cannot be overridden by the parties except by

explicit statutory provisions. He relied on the case of Scova Engineering

v. Mtibwa Sugar (Civil Appeal No. 133 of 2017, Unreported). He

prayed that the preliminary objection raised by the 1st and 3rd Defendants be

dismissed with costs.

A brief rejoinder from Ms. Jacqueline Kinyasi, learned State Attorney,

was that although neither the Plaintiff nor the 1st and 3rd Defendants are

mentioned in the Bill of Lading therefore not privy to it, the present lawsuit

pertains to an insurance policy linked to the Bill of Lading. He referred to

paragraph 7 of the Plaint that specifies that, the Bill of Lading holds the 2nd

Defendant liable for loss or damage to the insured consignment from loading

to discharge at Dar es Salaam Port.

8
 Maosa & Co. Advocates filed their written submissions in support of

three preliminary objections raised by the 2nd Defendant. On choice of law

and forum, they submitted that Clause 4 of the Bill of Lading is unambiguous

that any dispute arising from the said Bill of Lading shall be determined in

accordance with the laws of Germany through arbitration process. They

submitted therefore that the court has no jurisdiction.

On time limit, they submitted that Sections,3, 4 and 6(1) of the

Carriage of Goods by Sea Act, CAP 164 of the Laws of Tanzania which

incorporates the Hague Visby Rules, 1924 prescribe that suits on Bills of

Lading should be filed within 12 months from the date of the carrier

discharging the goods at the Port of destiny. They argued that according to

paragraph 7 of the Plaint, the goods were discharged at the Port of Dar es

Salaam on 2nd November 2020 and the present suit complaining of damage

to those goods was filed on 13th July 2023 which was after the lapse of two

years and six months outside the statutory period of limitation. He cited the

case of CMA CGM) Tanzania) Limited versus AM Steel& Iron Mills

Ltd, Commercial Case No.2 of 2014 which held that Bill of Lading is the main

contract between a shipper and the carrier and which also held that the

Hamburg Visby Rules 1978 are applicable to Tanzania. They also cited the
9
case of Kaycee (ING) Limited versus Prompt Shipping Corp (1986) All

N.L.R 33 decided by the Supreme Court of Nigeria wherein the Court held

that under the Carriage of Goods by Sea Act 1924, the carrier ship is

discharged from any liabilities if the claim is not brought within a year.

The learned counsel for the 2nd Defendant prayed that the suit be

dismissed with costs.

Mr. Mkama Kaleb, learned Advocate for the Plaintiff, responded to the

written submissions filed by the 2nd Defendants learned counsel. He argued

that the present suit is not filed under the Bill of Lading but on tort. He

argued that the Plaintiff is not a party to the Bill of lading contract and could

not sue on it on the basis of privity to contract. He argued that the Plaintiff

has a valid cause of action against the 1st and 2nd Defendants in tort. He

referred to Paragraphs 5.1, 5.2 and 5.3 of the Plaint where the Plaintiff is

suing on the basis of negligence so as to be reimbursed the USD 49,641.60

it had compensated the insured person. He argued that mentioning the Bill

of Lading in the plaint was done solely for the purpose of showing the

connectivity between the 2nd Defendant and the insured Yapi Merkezi Insaat

Ve Sanayi A.S whose goods were damaged negligently by the 1st and 2nd

io
Defendants. He submitted that suits founded on tort of negligence have a

period of limitation of 3 years and therefore the suit is not time barred. He

reiterated his reply made in response to the preliminary objection raised by

the 1st and 3rd Defendants that the court has jurisdiction. He prayed for the

dismissal of the preliminary objections raised by the 2nd Defendant with

costs.

After hearing the arguments by the learned counsel for all the parties

to this case, I am now in a position to determine the preliminary objections

raised whose determination has been delayed due to mix-up of the online

case files and documents filed online by the parties between this case and

Commercial Case No.85/2023.

I will start with the preliminary objection on time limit raised by the 2nd

Defendant's learned counsel. In my settled view, the preliminary objection

is misplaced. The 2nd Defendant raised the preliminary objection on the

assumption that the present suit was founded on the Bill of Lading as a

contract regulated by the Carriage of Goods by Sea Act, which requires

claims thereon to be filed in Court within one year. The Plaintiff on the other

hand has been adamant that as per Paragraph 5 of the Plaint and many

ii
others, the cause of action is based on the tort of negligence and not contract

because the plaintiff was not privy to the contract in the Form of Bill of

Lading. In short, it is disputed fact between the Plaintiff and the 2nd

Defendant as to whether the present suit is premised on breach of Bill of

Lading as a Contract or on negligence. My decision is that so long as a fact

is disputed, it cannot form basis for preliminary objection as it needs

evidence to prove it one way or the other. Preliminary objections must be

raised on undisputed facts on the assumption that what is pleaded by the

other side is true. Now, the Plaintiff has pleaded under Paragraph 5 of the

Plaint that his claim is based on the tort of negligence. If that were to be

accepted as the truth, would the 2nd Defendant still be justified to insist, by

way of preliminary objection, that the suit is time barred? My answer would

be in the negative. To quote the Court of Appeal for Eastern Africa in the

case of Mukisa Biscuits Manufacturing Company LTD v West End

Distributors LTD (1969) EA 696, at page 701, Sir Charles Newbold P., had

this to say: -

"A preliminary objection is in the nature of

what used to be a demurrer. It raises a pure

point of law which is argued on the

12
 assumption that all the facts pleaded by the

other side are correct. It cannot be raised if

any fact has to be ascertained or what is the

exercise ofjudicial discretion."

In the case at hand the Plaintiff has filed a suit attempting to make the

1st and 2nd Defendants liable for negligence towards him as an insurer who

is subrogated to the would be rights of the insured person whom he has

already compensated for the loss. The 2nd Defendant is arguing that the suit

is (or rather should have been) one for breach of contract of Bill of Lading.

So, who is correct between the two? Evidence is needed. Where evidence is

needed, the issue cannot be disposed of as a preliminary objection even if it

touches on matters of time limitation, cause of action, jurisdiction or an

obligation to refer the dispute to arbitration. It is not the name-tag given to

the objection that matters, rather it is the nature of the objection raised.

Once an issue needs evidence to be resolved, it fails the test of being a pure

point of law which passes the test of self-proof. It may be a point of law but

not purely so, since it involves evidence for its determination hence failing

the test of self-proof. Therefore, as the preliminary objection on time

limitation raised by the 2nd defendant in this matter does not qualify as a

pure point of law, I dismiss it.

forum choice and applicable law. The Defendants herein have argued that

the present suit should have been filed in Germany in terms of Clause 4 of

the Bill of Lading and that the governing laws should have been the laws of

Germany and the 2nd Defendant added that the dispute should have also

been preceded by arbitration process. The Plaintiff has argued that the suit

at hand is not founded on the Bill of Lading and therefore all the terms of

the Bill of Lading including Clause 4 thereof do not apply.

Clause 4 of the Bill of Lading provided:

"Disputes arising out of or in connection with the Bill

of Lading shall be exclusively determined by Courts

in accordance with the law of the place where the

carrier has principal place of business, as stated on

page 1 except as provided elsewhere herein."

In my view under the above Clause, the parties to the Bill of Lading,

agreed on jurisdiction of the courts and application of the laws of the

principal place of business of the Carrier. The parties did not agree on

arbitration, contrary to the arguments by the second Defendant. In the

present case, there is no dispute that the Principal place of business of the

14
Carrier is Germany. The Plaintiff has argued however, that the provisions of

the Bill of Lading, including Clause 4 of the Bill of Lading, which has chosen

the courts of Germany as the forum courts and the applicable laws to be

those of Germany, do not apply to the Plaintiff because the claim at hand is

not based on the Bill of lading to which the Plaintiff is a stranger, but rather

on tort of negligence. All parties herein agree that the parties to the Bill of

Lading were YAPI MERKEZIINSAAT VE SANAYI A.S (the Insured) who was

the owner of the goods and the shipper and the 2nd Defendant who was the

carrier of the consigned goods.

I have considered the arguments by the learned counsel for the

Plaintiff but I am unable to agree with him. In the first place, the Plaintiff

has been clear and emphatic that the present suit is founded on the doctrine

of subrogation where the Plaintiff as the insurer of YAPI MERKEZI INSAAT

VE SANAYI A.S (the Insured) stepped into the shoes of the said YAPI

MERKEZI INSAAT VE SANAYI A.S (the Insured) after having paid her the

insurance indemnity. By being subrogated, the Plaintiff stands in the same

shoes like the said YAPI MERKEZI INSAAT VE SANAYI A.S (the Insured) with

respect to the Bill of Lading and the consigned goods thereunder. The

Plaintiff under the doctrine of subrogation, can only enforce those rights
15
which the Insured person YAPI MERKEZI INSAAT VE SANAYI A.S (the

Insured) could have enforced against the 1st and 2nd Defendants if he was

not insured. YAPI MERKEZI INSAAT VE SANAYI A.S (the Insured) could have

sued for breach of contract or could have sued for the tort of negligence.

The Plaintiff has stepped into the shoes of the said YAPI MERKEZI INSAAT

VE SANAYI A.S (the Insured) and has opted to sue for the tort of negligence.

The claim for negligence relates to and is connected with the relationship

and the transaction which YAPI MERKEZI INSAAT VE SANAYI A.S (the

Insured) had with the 1st and 2nd Defendants under the Bill of Lading. The

Plaintiff upon being subrogated, stands in the same position, with regard to

the Bill of Lading and claims incidental thereto, like the said YAPI MERKEZI

INSAAT VE SANAYI A.S (the Insured) could have stood.

In insurance law subrogation is the name given to the right of the

insurer who has paid for a loss, to be put in the place of the assured so that

he can take advantage of any means available to the assured to extinguish

or diminish the loss for which the insurer has indemnified the assured.

Subrogation means substitution of one person for another. The doctrine of

subrogation confers upon the insurer the right to receive the benefit of such

rights and remedies as the assured has against third parties in regard to the

16
loss to the extent that the insurer has indemnified the loss and made it good.

The insurer is, therefore, entitled to exercise whatever rights the assured

possesses to recover to that extent, compensation for the loss. Subrogation

involves transfer of right and remedies of the insured to the insurer who has

indemnified the insures in respect of the loss. That is why it is said that on

the payment of the claim of the insured, the insurer steps into the shoes of

the insured, to claim the damages/loss caused to the property by the third

parties. The Insurer therefore stepped into the shoes of the Insured and

enjoyed no better remedies over what the insured himself enjoyed as against

the 1st and 2nd Defendants in relation to the Bill of Lading.

My second reason for not accepting the Plaintiffs arguments in this

regard is that the drafting of Clause 4 of the Bill of Lading reproduced above

was broad enough to cover disputes arising out of the Bill of Lading directly

as well as disputes arising indirectly in connection with the Bill of Lading. The

Bill of Lading was with respect to the consigned goods of the insured person

which were being transported by the 2nd Defendant and discharged at the

Port of the 1st Defendant. Allegedly those goods were damaged by

negligence of the 1st and 2nd Defendants. The Plaintiff has allegedly paid

compensation to the insured for loss of those damaged goods and is now

17
seeking reimbursement from the 1st and 2nd Defendants in respect of the

value of the same damaged goods of the insured. There is no way that a

dispute touching the damaged goods of the insured could not be connected

directly or indirectly with the damaged goods covered by the Bill of Lading.

I find that Clause 4 of the Bill of Lading was drafted broadly in such a way

that it captured disputes directly emanating from the Bill of Lading and those

incidental disputes not arising directly from it but are rather connected to

the Bill of Lading, like the present claim based on tortious liability in respect

of the same goods covered by the same Bill of Lading.

The learned author R. Doak Bishop, in his work Practical Guide for

Drafting International Arbitration Clauses, King & Spalding,

Houston, Texas, at page 14 describes the implications of the broad-form

clauses with reference to the Standard Dispute Resolution Clause under the

International Chamber of Commerce (ICC) Arbitration Rules. The

clause provides:

"AH disputes arising out of or in connection with the

present contract shall be finally settled under the

Rules ofArbitration of the International Chamber of

Commerce by one or more arbitrators appointed in

accordance with the said Rules."

expressions"for an arbitral clause "AH disputes"... "in

connection with"... "finally settled". The term "all

disputes" encompasses all types of controversies,

without exception. The language, "in connection

with", creates a broad form clause that will cover

noncontractual claims such as tort and fraud in the

inducement. While "finally settled" indicates the

parties intend the arbitrator's ruling to be final so a

court will not try the case de novo" (underlining

supplied for emphasis).

this case, it was agreed that:

Disputes arising out of or in connection with the Bill

of Lading shall be exclusively determined by Courts

in accordance with the law of the place where the

carrier has principal place of business, as stated on

page 1 except as provided elsewhere herein."

(emphasis supplied).

I interpret the phrase "in connection with" which is contained in Clause 4 of

the Bill of Lading as creating a broad form clause that will cover non­

19
contractual claims such as tort and fraud in the inducement. The plaintiff

has argued that the present case is based on tort of negligence and not Bill

of Lading contract. I hold that, nevertheless, the Claim on tort of negligence

now preferred by the Plaintiff was also envisaged and captured by the broad

terms of the dispute settlement clause under Clause 4 of the Bill of Lading

by the use of the word "in connection with the Bill of Lading". The Plaintiff,

being an assignee of the insured's rights under the doctrine of subrogation,

stands in the same shoes like the insured person with respect to Clause 4 of

the Bill of Lading regardless of whether he is seeking to enforce the Bill of

Lading or to enforce incidental claims and remedies in connection with the

Bill of Lading. The Plaintiff was supposed to file the suit in Germany Courts

to be determined under the laws of Germany. That is the implication of

Clause 4 of the Bill of Lading.

Now that the Plaintiff has instituted the present suit in violation of the

agreement on forum choice and choice of law agreed with the Defendants,

what should happen? The issue is whether forum choice or choice of other

mode of dispute resolution ousts the court's jurisdiction? My answer is in the

negative. It is common in international trade for parties to choose the

applicable law to their contract as well as the forum to handle their dispute
20
and that forum can include an ordinary court or an arbitral tribunal. In the

book by Anthony Connery, titled Manual of International Dispute

Resolution, Commonwealth Secretariat (2006) at page 187 it is stated that:

"Despite the increasing use of international

commercial arbitration backed up by the New York

Convention, litigation in the national courts is

probably still the major international dispute

resolution process in use. In the context of

international contracts, the major problem in

relation to litigation is the prospect for one of the

parties of that litigation taking place in the courts of

a foreign country, conducted in a foreign language

and under a foreign system of law. However,

litigation maybe the dispute resolution process used

for a variety of reasons."

It becomes apparent, therefore, that a choice of foreign court, by the

parties to an agreement, as their preferred forum for dispute resolution, is

perfectly justified in the same way that it can be used in arbitration

proceedings. This court is therefore required to stay the proceedings and

refer the parties to their chosen forum. This position can be seen in the

decision of the Court of Appeal of Tanzania in Sunshine Furniture versus

21
Maersk (China) Shipping Co. Ltd and Nyota Tanzania Ltd Civil Appeal

No.98 of 2016 where the Court of appeal held that:

endorse the above view by the learned author

that the court in which the suit is instituted has the

discretion to stay the suit once it learns of existence

of 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 of a different

forum, it is otherwise competent to try the matter.

The high court in the instant matter, we think,

should have stayed trying the suit pending the

institution and determination of the claim in the

court ofRome. On that basis we vacate the dismissal

order and substitute for it an order staying the suit

in the High Court, Commercial Division".

A similar position was taken by the Court of Appeal in Scova Engineering

SPA and another Versus Mtibwa Sugar Estates Limited and 3 Others

(2021).

Therefore, as it is settled that there is an agreement whose terms were

expressed in writing in the Bill of Lading, by virtue of which the parties chose

22
the Courts of Germany as their preferable forum for settlement of disputes

emanating from their agreement, the role of this court is to uphold that

agreement by keeping parties to their bargain. That, however, does not

mean that this court lacks jurisdiction or that parties by their agreement have

ousted the jurisdiction of this court. It only means that whereas this court as

well as the foreign court chosen by the parties, both have jurisdiction over

the dispute on different grounds, the parties' own-chosen forum should be

given prominence under the doctrine of party autonomy. Party autonomy

has been a common principle in contract law; thus, it has been drafted into

most of the international conventions in contract law as well as into domestic

laws governing contracts. Party-autonomy entails, amongst others, the

parties' freedom of contract to decide the contractual terms and to negotiate

the terms of their contract for which they give their consents. It follows

therefore, that the Court has to stay the suit and refer the parties to their

agreed dispute resolution forum.

In the end, I do uphold the preliminary objection on forum choice raised

in this case. I order that:

23
a) The Plaintiff should institute the dispute at hand in the appropriate Court

pursuant to Clause 4 of the Bill of Lading.

b) Pending the processes ordered in (a) above, the present suit shall be

stayed.

c) The Preliminary Objections are is upheld with costs.

It is so ordered.

A. H. GONZI

JUDGE

02/08/2024

Ruling is delivered in Court this 2nd day of August, 2024 before Hon. Deputy

Registrar J. M. Minde, in the presence of Mr. Mkama M. Kalebu, Advocate

for the Plaintiff and in absence of Advocates for the Defendants.

INDE

DEPUTY REGISTRAR

02/08/2024

24