CIVIL APPEAL NO 474 OF 2021 AFRIQ ENGINEERING AND CONSTRUCTION COMPANY LIMITED VS THE REGISTERED TRUSTEES OF THE DIOCESE OF CENTRAL TANGANYIKA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA. J.A., KEREFU, AND 3.A. And NGWEMBE, J.AJ CIVIL APPEAL NO. 474 OF 2021 AFRIQ ENGINEERING AND CONSTRUCTION COMPANY LIM ITED................ ....................................................... APPELLANT VERSUS THE REGISTERED TRUSTEES OF THE DIOCESE OF CENTRAL TANGANYIKA......................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Commercial Division, at Dar es Salaam) fNanqela, JO dated the 14th day of April, 2021 in Consolidated Commercial Cause Nos. 4 and 9 of 2020 JUDGMENT OF THE COURT 12th & 17th July, 2024. KEREFU. J.A.: The main issue of controversy between the parties to this appeal, traces its origin in the contract executed by the DIOCESE OF CENTRAL TANGANYIKA, THE ANGLICAN CHURCH OF TANZANIA (the DCT) and M/S AFRIQ ENGINEERING AND CONSTRUCTION COMPANY LIMITED, the appellant herein. The contract in question, titled 'Proposed Construction of Diocese Investment Building on Plot No. 7, Main Cathedra! Madukani Area in Dodoma Municipality' (now the Dodoma City) was entered on 3rd July, 2017. In that contract, the DCT (the employer), procured the services of the appellant (the contractor), to construct the DCT investment building for a total sum of TZS 4,915,616,655.86 for execution period of twelve (12) months. It is on record that, initially, the commencement date for site possession was agreed to be on 3rd July, 2017, however, in one of the site meetings, which involved all relevant parties, it was agreed that the site was to be handed over to the appellant on 8th September, 2017 which would be an official contractual commencement date of the project and 7th September, 2018, the project completion date. Then, the DCT engaged the services of M/S K&M Archplan (T) Ltd as its project's Lead Consultant. According to the said contract, the DCT was to release an advance payment of TZS 737,342,498.00, equal to 15% of the contractual sum, upon submission of Performance Guarantee and Advance Payment Guarantee. It was the appellant's contention that, instead of paying the advanced payment at once, as agreed, the DCT paid in installments, whereas the first batch of TZS 180,000,000.00 was released on 2nd September, 2017; the second batch of TZS 30,000,000.00 was paid on 4th September, 2017 and the third batch for TZS 300,000,000.00 on 6th September 2017. Subsequently, on 13th October, 2017, a 2nd site meeting was allegedly convened where the appellant raised a red flag regarding the partial payments by the DCT. Thus, three days later, on 16th October, 2017, the DCT released the fourth batch at the tune of TZS 227,342,498.00. However, over a course of time, things did not work out well as planned because, in its letter, dated 20th April, 2018, the DCT terminated the said contract due to the failure by the appellant to adhere to the terms and conditions of the contract. The appellant unsuccessfully protested against the said termination and notified the DCT that there was a dispute between them. Subsequently, and pursuant to clause 40 of the contract, the appellant initiated the arbitral process under the National Construction Council (the NCC) where Engineer Sudhir J. Chavda was appointed as a sole arbitrator. The arbitral proceedings were governed by the NCC Arbitration Rules, 2001. During the pendency of the said arbitration, and in the course of verifying the legal status of the respondent, Mr. Ambrose Shayo, the learned counsel for the appellant, in his letter dated 19th May, 2018 addressed to the Registration, Insolvency and Trusteeship Agency (RITA), requested for the information on the legal status of the DCT. In its letter, dated 29th May, 2018, RITA responded that, the Board of Trustees for the DCT, composed of five members, was registered under the Trustees Incorporation Act, Cap. 318 (the Trustees Incorporation Act) on 12th July, 1945 with Registration No. 79. Upon receipt of that information, the appellant, on 12th March, 2019, filed an application for an interim award before the arbitrator seeking for (i) an interim award that the legal identity of the respondent is the registered trustees of the DCT; and (ii) that, all documents filed before the arbitral tribunal in connection with the contract to refer to the respondent as the Registered Trustees of the DCT. However, the said issue having been unsolved between the parties, was included among the disputed matters to be determined by the arbitrator upon hearing evidence from the parties. Having heard the parties and analyzed the evidence adduced before him, the arbitrator decided the matter in favour of the appellant. As regards the legal status of the DCT, it was the finding of the arbitrator that,' regardless o f other nam es used by the respondent in the contract or elsewhere, the respondent is the 'Registered Trustees o f the DCT...' As such, the arbitrator issued the final award in the name of the respondent who was ordered to pay a total amount of TZS 2,590,000,000.00 to the appellant together with interests and costs of the arbitration. On 21st January, 2020, the arbitrator filed the said award in the High Court vide Misc. Commercial Cause No. 4 of 2020. Subsequently, the respondent filled a petition through Misc. Commercial Cause No. 9 of 2020 challenging the enforcement of the arbitral award. The filing of the award and the petition was confronted with a number of objections raised by the parties which were, however, overruled by the learned High Court Judge thus, paving way for the two applications i.e Misc. Commercial Cause No. 4 of 2020 and Misc. Commercial Cause No. 9 of 2020 to be consolidated, heard and determined on merit. Before the High Court, the respondent assailed the final award on fifteen grounds which were to the effect that the said award was improperly procured as; one, the arbitrator did not have the requisite jurisdiction to determine the matter; two, non-compliance with the dispute resolution procedures set out in the arbitration contract and the NCC Arbitration Rules, 2001 as, the respondent, a legal entity was never notified to be a party to the arbitral proceedings and; three, the claim was brought against a wrong party incapable of being sued and the award was erroneously issued in the name of the respondent who was not a party to the appellant's claim. It was the argument of the respondent that, the said errors constituted fatal defects which rendered the matter before the arbitrator incompetent. As such, the respondent invited the learned High Court Judge to set aside the award for being improperly procured. In her response, the appellant refuted the respondents claims by arguing that, since the parties have agreed to settle their dispute in accordance with clause 40 of the contract, the respondent was precluded from reopening and re-arguing issues that were specifically referred to the arbitrator and determined in accordance with the parties' agreement. That, issues raised by the respondent were already determined by the arbitrator through an interim award. In addition, the appellant implored the learned High Court Judge to take judicial notice of the order of the High Court of Tanzania, Dodoma Registry, in Misc. Civil Application No. 15 of 2019 dated 11th March, 2019 where the respondent withdrew the case lodged against the appellant, on the said issues, without leave to re-file. The appellant also urged the learned High Court Judge to invoke the principle of estoppel and dismiss the respondent's petition and proceed with registration of the award as a decree of the court. Having considered the submissions made by the learned counsel for the parties, the learned High Court Judge found that the arbitrator had requisite jurisdiction to entertain the matter but questioned the propriety or otherwise of his conduct to make corrections and or amendments in the parties' pleadings by substituting therein the name of the respondent. Thus, the learned High Court Judge found that the act done by the arbitrator was not only in excess of his jurisdiction, but also unprocedural and amounting to a serious irregularity and misconduct contrary to section 70 (2) (b) of the Arbitration Act, 2020. As such, the said award was set aside with costs for being improperly procured. The above decision, prompted the appellant to lodge the current appeal comprised of sixteen grounds of complaint to express her dissatisfaction. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this judgment, to reproduce them herein. At the hearing of the appeal before us, the appellant was represented by Messrs. George Ambrose Shayo and Adrian Mhina, both learned counsel whereas the respondent had the services of Messrs. Nuhu Mkumbukwa and Dennis Malamba, also learned counsel. Pursuant to Rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009, the learned counsel for the parties had earlier on lodged their respective written submissions in support of and in opposition to the appeal, which they sought to adopt at the hearing to form part of their oral submissions. We wish to state at this juncture that for reasons that will be apparent in the course of this judgment, we will only summarize the arguments of the parties in respect of the eleventh and thirteenth grounds of appeal, which we think are sufficient to dispose of this appeal. For the sake of clarity, the said grounds are to the effect that: "11. The learned High Court Judge erred in law and facts by holding that the sole arbitrator should have struck out the appellant's statem ent o f claim fo r being file d against an entity that was incapable o f being sued; and 13. The learned High Court Judge erred in law and facts by holding that the course taken by the sole arbitrator was fatal to the arb itral proceedings and further erred in holding that in the circum stances, the award was tainted with ille g a lity and or was wrongly procured." Submitting in relation to the above grounds, although, Mr. Shayo admitted that the appellant's Statement of Claim before the arbitrator was instituted against the DCT, an entity which cannot be sued, he contended that, the issue of the respondent's name was adequately determined by the arbitrator through an application for an interim award filed by the appellant on 12th March, 2019 requesting the arbitrator to determine (i) the legal identity of the DCT and (ii) that, all documents filed before the arbitral tribunal, shall refer to the DCT as per the names discovered after the official search conducted by the appellant at RITA. It was, therefore, his argument that, since those issues were decided upon by the arbitrator and the parties have agreed to settle their dispute in accordance with clause 40 of the contract, therefore, the arbitral award issued by the said arbitrator on 13th December, 2019 was final and binding on the parties. As such, Mr. Shayo blamed the respondent to re-open the said issue before the High Court. To clarify on his point, Mr. Shayo referred us to page 1042 of the record of appeal and argued that, the arbitrator relied on the evidence adduced by RW7 and correctly found that the respondent was using two names, the DCT and The Registered Trustees of the DCT interchangeably. According to him, it was correct for the arbitrator to issue the final award in the name of the respondent. As such, Mr. Shayo urged us to find that the award was properly procured. In addition, and upon further reflection, Mr. Shayo argued that, since the respondent misrepresented herself by entering into a contract by using a name which she knew that cannot be sued, the Court should determine the appeal in favour of the appellant to avoid the respondent to unjustly enrich herself. Accordingly, the learned counsel prayed for the appeal to be allowed with costs. In his response, Mr. Mkumbukwa challenged the argument advanced by his learned friend that, it was based on the misconception of the law. He clarified that, since Mr. Shayo conceded that, before the arbitrator, the appellant instituted her claim against the DCT, a non­ existing entity which cannot sue or be sued, the said claim was legally unmaintainable. He clarified that, under the law, societies, as legal persons, are sued and can sue in their incorporation names and not registered names as the said names do not give them any legal personality. He thus faulted the procedure adopted by the arbitrator of amending the parties' pleadings by issuing his final award in the name of the respondent who was not a party to the arbitral proceedings. It was his argument that, having noted that the appellant's claim was brought under a wrong party, the arbitrator ought to have struck out the matter and or order for the amendment of the same, instead of him assuming the role of a party (the appellant) and amend the parties' pleadings. 10 Rounding up his submission, in support of his position, Mr. Mkumbukwa referred us to the cases of The Registered Trustees of the Catholic Diocese of Arusha v The Board of Trustees of Simanjiro Pastoral Education Trust, Civil Case No. 3 of 1998, High Court of Tanzania at Arusha (unreported) and Kanisa la Anglikana Ujiji v. Abel Samson Heguye, Labour Revision No. 5 of 2019 [2019] TZHC 37: [14 November 2019: TanzLII] and then urged us to dismiss the appeal with costs for lack of merit. In a brief rejoinder, Mr. Shayo reiterated what he submitted earlier and insisted on the appeal to be allowed. On our part, having carefully considered the rival arguments advanced by the learned counsel for the parties and examined the record of appeal before us, the main issue for our consideration is whether it was proper for the learned High Court Judge to set aside the award on account of the alleged misconduct of the arbitrator. Before doing so, it is crucial to state that, this being a first appeal, it is in the form of a re-hearing, therefore the Court, has a duty to re­ evaluate the entire evidence on record by reading it together and subjecting it to a critical scrutiny and, if warranted arrive at its own conclusion of fact - see D.R. Pandya v. Republic [1957] EA 336 and ii Jamal A. Tamim v. Felix Francis Mkosamali & The Attorney General, Civil Appeal No. 110 of 2012 [2013] TZCA 342: [3 May 2013: TanzLII]. We wish to start by stating that the issue of parties to the case is fundamental and central in all proceedings. It goes to the very root of the matter as, for a person to bring a matter before the court or a tribunal, they must be capable to sue and or beingsued. Seefor instance our previous decisions in The Registered Trustees of Islamic Propagation Centre v. The Registered Trustees of Thaaqib Islamic Centre, Civil Appeal No. 2 of 2020 [2021] TZCA 342: [27 July 2021: TanzLII] and Ilela Village Council v. Ansaar Muslim Youth Centre & Another, Civil Appeal No. 317 of 2019 [2021] TZCA 181: [7 May 2021: TanzLII]. In the instant appeal, there is no dispute that, before the arbitrator, the appellant instituted her statement of claim against the DCT, a non-existing entity which cannot sue or be sued. We are mindful of the fact that, in his submission before us, although, Mr. Shayo conceded to that fact, he contended that, since the issue of respondent's names was finally determined by the arbitrator it was not proper for the respondent to have re-opened it before the High Court 12 and also in this Court. With profound respect, we find the submission by Mr. Shayo on this aspect misconceived because, the same being a legal issue, can be raised at any stage, even at the appellate level. We wish to emphasize that, it is settled law that there are two types of persons who can sue and or be sued. These are the natural and legal (artificial) persons. The artificial persons include companies and the registered trustees or incorporated bodies which are incorporated under different laws. In this appeal, the DCT, being a religious institution, is required by law to be registered as a society under section 12 (1) of the Societies Act, Cap. 337 (the Societies Act). The procedure is well prescribed under the Societies (Application for Registration) Rules, GN. 119 of 1958. Upon being issued with a certificate of registration, it is required under section 2 (1) of the Trustees Incorporation Act, to be incorporated and be issued with a certificate of incorporation stipulating its name which under section 5 of the same Act shall include the words "Registered Trustees." Therefore, once the certificate is issued, the DCT is deemed to have been incorporated, thus can only sue and be sued in its incorporation name and not otherwise. It follows therefore that, before the arbitrator, the DCT could not have been sued in its registered name, as suggested by Mr. Shayo, 13 because, such a name did not clothe it with legal personality. We thus agree with the submission made by Mr. Mkumbukwa that, since the appellant's claim before the arbitrator was brought against the DCT, a non-existing entity, it was legally unmaintainable. Likewise, it was equally wrong for the arbitrator to proceed with the said matter and finally issue an award in the name of the respondent who was not a party to the arbitral proceedings. It is on record that, considering the above matter and the conduct of the arbitrator, the learned High Court judge, correctly in our view, concluded that: "...since the arbitrator was vested with the jurisdiction ; as I have stated herein, what he ought to have done was to ruie that, the proceedings were preferred against an im proper party (the DCT) and have them struck out. Continuing to correct or amend the pleadings, as he did, am ounted into stepping into the shoes o f the respondent (com plainant) and, that is tantam ount to an abuse o f h is position as a neutral um pire and, that outrightly constitutes m isconduct or a serious irregularity...therefore, such a course taken by the sole arbitrator was fata l to the proceedings and the aw ard having been procured under that circum stances, was 14 tainted with an illegality, was wrongly procured and, as a m atter o f law, should be se t aside." In the light of the above position of the law, we entertain no doubt that the learned High Court Judge marshalled capable argument to support his conclusion that the award was improperly procured as it was issued in the name of the respondent who was not a party to the arbitral proceedings. As intimated above, since the issue of parties to the case is fundamental in all proceedings, the act of the appellant to institute her claim against a wrong party and or a non-existing person had affected the entire arbitral proceedings, hence rendered it incompetent. In The Registered Trustees of the Catholic Diocese of Arusha (supra), when dealing with a similar matter, his Lordship Justice Rutakangwa, J (as he then was) stated that, " No other body o f unincorporated trustees can sue or be sued in any court o f law as they have no legal personality." Therefore, and as correctly argued by Mr. Mkumbukwa, having detected that the appellant's claim was brought against a non-existing person, the arbitrator ought to have struck out the matter for being incompetent and or order for the amendment of the same, instead of him assuming the role of a party and amend the pleadings. In the circumstances, we find the appellant's criticism of the learned High Court 15 Judge's findings is, with respect, without any justification. In the event, we find the eleventh and thirteenth grounds of appeal devoid of merit. Since the above finding disposes of the appeal, we see no compelling reasons to consider the remaining grounds of appeal raised by the appellant. In the event, and for the foregoing reasons, we hereby dismiss the appeal in its entirety with costs. DATED at DAR ES SALAAM this 16th day of July, 2024. G. A. M. NDIKA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 17th day of July, 2024 in the presence of Mr. George Ambrose Shayo assisted by Mr. Safari Malata both learned counsels for the Appellant and Mr. Denis Malamba assisted by Mr. Lucas Makoli Lucas, learned counsels for the Respondent is hereby certified as a true copy of the original.