a caste corporation formerly milo constr co ltd vs the registered board of trustees of ppf 2023 tzhccomd 122 28 april 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC. COMMERCIAL CAUSE NO. 16 OF 2009 A CASTE CORPORATION (Formerly MILO CONSTRUCTION COMPANY LTD) …………APPLICANT VERSUS THE REGISTERED BOARD OF TRUSTEES OF PPF….RESPONDENT RULING Date of last order: 09/03/2023 Date of ruling: 28/04/2023 AGATHO, J.: This ruling is in respect of the two issues raised by the court with assistance of the parties regarding the registration of the award, that: (1) Whether the arbitral award had been registered? (2) If the answer is in the affirmative then, the issue is whether the pending Notice of Appeal to the CAT is a bar to the enforcement of the registered award. To appreciate the context of the ruling it is worthwhile to state briefly the background of matter. Sometimes in 2009, the applicant herein emerged victorious in the arbitration proceedings, and thereafter the award was forwarded for filing in this court under Section 17(1) of the repealed Arbitration Act [Cap 15 R.E. 2002]. The Responded aggrieved by the award challenged by petitioning before this court in a bid of having the award set aside. Hon. Mansoor J sitting in this court on 30/10/2015 dismissed the petition for want of jurisdiction. I will not go into details of that ruling. Dissatisfied by that ruling the respondent filed notice of appeal to appeal to the Court Appeal. That 1 process has hibernated for years. Due to the presence of the notice of appeal nothing has been done in this court in as far registration of the award is concerned. That state of affairs has dived the parties to this matter. It is equally true that the law is not plain as to whether once the petition to challenging an award is unsuccessful then it is automatic that the award is registered. The matter is complicated by the presence of the notice of appeal. The opaqueness of the law on this is revealed by the divergent views of the parties and the Court. The CAT in the Tanzania Cotton Marketing Board v Cogecot Cotton Company SA [1997] TLR 165 at page 171 suggests that once the award is submitted to this court then it is regarded as being filed. And hence it is not necessary as a matter of law to have any further proceedings and ruling after the award has been received by the court. It is not necessary to conduct proceedings before an order of filing is made. The receipt of the award by the court registry constitutes the filing of the award. Thereafter the court is required to notify who may wish to challenge or to enforce the award in terms of the law. Suffice to add here that the CAT traversed several authorities from India to draw the said guidance. A contrast view was given by Mwambegele J (as he then was) in Kigoma/Ujiji Municipal Council v Nyakirang’ani Construction Ltd, Misc. Commercial Cause No. 239 of 2015 HCCD at Dar es salaam. His Lordship at page 12 of the ruling held: Obviously, where there is no challenge against arbitral award filed in Court and considering the parties had chosen to deal with their problems out of court through arbitration, it is not for the court to refuse or delay to give meaning thereto, in terms of the 2 law on the apprehended re-engineering of the challenging process by either party. He added further that: That, notwithstanding, a court of law being not a party to such procedure cannot move suo motu to make the order adopting or registering the Award as a decree of the court. Thus, it is upon the relevant party to move the court to make such order as it deems fit. The court, in granting such order, in my considered opinion, will take into consideration various factors including any intention expressed by the opposite party there and then, as well as substantive justice tenets. I cannot help myself to state that I subscribe to the views of Mwambegele J (as he then was) that it is incumbent upon the awardee to move the court to make an order for registration of the award. That does not conflict the position in Cotton Marketing Board’s case. What was held by the CAT in the latter case is the presumption of filing of an award. In my view filing and registration or court order turning an award into a decree are two different things. While Ujiji Municipal’s case dealt with the registration of an award to become a decree, the Cotton Marketimg Board’s case was concerned with the filing of the award before the court prior to issuing of registration order. But before proceeding further there are two or three issues to be clarified. One the issue of functus officio raised by the respondent, in my view this is irrelevant in as far as this case is concerned. I am not dealing with what was decided by Hon. Mansoor J as her decision cannot anyhow be reopened by this court. Two, the issue of a letter written by the applicant’s counsel to the registrar of this court. I find this to be de minimis non curat lex. The law or a judge cannot deal with trivial issues. That letter is of no use in this matter. 3 Much as it relates to issue of registration of the award, it was not proper to be referred to. I thus proceed to ignoring it. Now back to the issue whether the award was registered, considering Cotton Marketing Board’s case and Ujiji Municipal Council case I am inclined to conclude that in the absence of court order to the effect that the award is registered or was registered there is no award registered in the court. As I have stated earlier the Cotton Marketing Board’s case addressed the question as to when the award is said to be filed. It did not tell when does the award turn into a decree. It is plain that a mere filing of the award does not make it a decree without the court order that the award is registered, hence becoming an executable decree. Having so observed I am of the humble view that the award was filed in this court because without such award being filed the ruling given by Mansoor J would not have been there. Therefore, the award was filed in this court, but what is missing is the court order that the award is registered as a decree of this court. This a distinct process from mere filing of an award. In fact, the arbitral award is filed in the court registry, and registration becomes lawful when the court/judge grants an order to turn the award into a decree. It is like the Catholics liturgy of hocus pocus, the bread turning into Christ’s body. That said it is loud that the award has not crystalized into a court decree yet. Had there been a decree of this court, the notice of appeal could not have operated as bar without an order of staying of execution. Moreover, the presence of notice of appeal means the ruling of this court dated 30/10/2015 will be before the CAT and nobody knows what the justices of appeal will decide. It will also be a misconception to hold that the ruling dismissing the petition that in itself is a conclusion that the award has been registered. As per the Kigoma/Ujiji Municipal Council’s case and even the Cotton Marketing Board’s case the award should turn into a decree before one can 4 execute it. It is important to stress a distinction between filing and registering of the arbitral award. Failure to appreciate that may lead to a wrong conclusion that once the award is submitted to this court it automatically turns into a decree without any further action or further order of the court. In lieu of the foregoing the first issue has been answered in the negative. And for that sole reason I see no need to proceed with the second issue whether the pending notice of appeal is a bar to enforcement of the registered award. As the issues addressed in this ruling were prompted by the parties, each party shall bear its costs. It is so ordered. DATED at DAR ES SALAAM this 28th Day of April 2023. U. J. AGATHO JUDGE 28/04/2023 Date: 28/04/2023 Coram: Hon. U.J. Agatho J. For Applicant: Elisaria Mosha and Jackline Rweyongeza, Advocates For Respondents: Jenifer Msanga, and Nyambilila Ndoboka, State Attornyers. C/Clerk: Beatrice Court: Ruling delivered today, this 28th April 2023 in the presence of Elisaria Mosha and Jackline Rweyongeza, counsel for the Applicant, and 5 Jenifer Msanga and Nyambilila Ndoboka, State Attorneys for the Respondent. U. J. AGATHO JUDGE 28/04/2023 6