airtel tanzania limited vs kmj telecommunications limited 2021 tzhccomd 3349 28 august 2021

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION Nd.105 OF 2020 (Arising from Misc. Commercial Cause No.34 of 2019) AIRTEL TANZANIA LIMITED........................... APPLICANT VERSUS KMJ TELECOMMUNICATIONS LIMITED ..................... RESPONDENT Date of Last Order: 11.08.2021 Date of Ruling: 20^08.2021 RULING MAGOIGA, J- The applicant, AIRTEL TANZANIA LIMITED by chamber summons filed under the section 5(1) (c) of the Appellate Jurisdiction Act [Cap 141 R.E.2002J, Rule 45(a) of the Court of Appeal Rules, 2009 as amended by Tanzania Court of Appeal (Amendment) Rules,2019 praying that this court be pleased to grant the following orders, namely: 1. That the Honourable court be pleased to grant the applicant leave to appeal to the Court of Appeal of Tanzania against the Rulingand Order of the High Court of Tanzania (Commercial Division) at Dar es Salaam (Hon. Fikirini, as she then was) delivered on June, 9th 2020 in Misc. Commercial Cause No.34 of 2019; i 2. Costs of this application abide the outcome of the intended appeal; 3. Any other relief(s) this Honourable Court may deem fit and just to grant The chamber summons was accompanied by the amended affidavit of Mr. Gaspar Nyika, learned advocate for the applicant stating the reasons why this application should be granted. Upon being served with the application, the respondent through his learned advocate filed a notice of preliminary objection and counter affidavit stating the reasons why this application should not be granted. The preliminary objection after being heard inter parties was overruled and an order for amending the affidavit was granted. The respondent never bothered to file counter affidavit to the amended affidavit. The facts leading to this application as gathered from the affidavit of the applicant are imperative to be stated. Vide Misc. Commercial Cause No.384 the respondent herein successfully registered for enforcement of final award and decree of the court was dully issued on 7th December, 2018. Aggrieved, the applicant filed Misc. Commercial Application No.34 of 2019 to challenge the already registered award by the court in vain. The court struck out the application on the reason that the court is functus officio. The applicant as 2 such has preferred this application seeking leave to appeal to the Court of Appeal against the ruling of the court dated 9th June, 2020, hence, this ruling. When this application for leave was called on for hearing, the applicant has the legal services of Mr. Gaspar Nyika, learned advocate and the respondent has the legal services of Mr. Marcel Kanoni, learned advocate. Both learned advocates were ready for hearing. Mr. Kanoni readily informed the court that, they don't oppose the application and that is the reason why they did not file the amended counter affidavit and prayed that upon grant of the application, same be granted without costs. Mr. Nyika argued that they have preferred this application for leave to appeal to the Court of Appeal of Tanzania against the decision of Hon. Fikirini, J (as she then was) in Misc. Commercial Cause No.34 of 2019, in which the learned sister Judge (as she then was) struck out the petition which was seeking to set aside an arbitral award on the ground that the application was incompetent for court being functus officio because the award had been registered by Hon. Phillip, Judge as court decree. Mr. Nyika went on to argue that they were aggrieved by that decision and as such filed notice of Appeal to the Court of Appeal of Tanzania on 12.06.2020 and are now pursuing this 3 application for leave to appeal against that decision. According to Mr. Nyika the reason why they want this court to grant leave is as contained in paragraph 8 of the amended affidavit. The said paragraph provides as follows: (i) That the learned judge erred in holding that the application was overtaken by events because the award subject of this petition had already registered as decree of the court and therefore the court was functus officio and could not set aside the award. In doing so, the learned Judge erred in failing t appreciate:- (a) That in law, an application to set aside could only be filed after the award has been registered and ready for enforcement; (b) That the decree issued by the court did not and could not in law supersede the award which was being souqht to be set aside. Further argument by Mr. Nyika was that, the intended appeal raises serious issues of law that are worth the Court of Appeal of Tanzania's consideration. The learned advocate in support of the his arguments cited the case of TANZANIA COTTON MARKETING BOARD vs. COGECOT COTTON COMPANY 4 SA [1997] TLR165 in which interpreting the provisions of section 11(2) of the Arbitration Ordinance Cap 15 observed that the court is moved by an application for an order for filing which is then followed by proceedings. Guided by the Indian decisions which had dealt with similar provision or rather are in pari material with section 11(2) of the Ordinance, the Court of Appeal of Tanzania, concluded that, the receipt of the award by the court registry constitute the filing of the award. Thereafter, the court is required to notify the parties who may wish to challenge or to enforce the award in term of the law. On the above reasons and guidance in the Court of Appeal decision, Mr. Nyika implored this court to find and hold that, the procedure as stated in above cited case is the intact and as such this court be pleased togrant leave to appeal to the Court of Appeal of Tanzania as the issue raises an important point for determination by the highest court of the land. Mr. Nyika joined issue with Mr. Kanoni that this application be granted without costs. This marked the end of hearing of this application. Before granting or not granting the leave which is not contested between parties, I have noted that the decision of Hon. Fikirini, Judge (as she then 5 was) was given on 12th June, 2020 long after the coming into force of the new Arbitration Act, 2020 (to be referred herein as the 'Act'). Further guidance is the provisions of section 91 of the new Act, which for easy of reference provides as follows: Section 91-(1) The Arbitration Act, 1931 is hereby repeated. (2) Anything done or concluded under repealed Act or regulations shall be deemed to have been done or concluded under this Act. (3) Anything Arbitration arrangement concluded before the coming into effect of this Act which was not yet materialized shall be renegotiated and brought in line with this Act. (4) Any proceedings pending shall be proceeded in the light of this Act. (5) Any award which has been granted shall be deemed to have been granted under this Act. The wording of the above section are clear and bring no ambiguity that, all pending proceedings much as are still pending shall be construed in the light of this Act. In the premise, therefore, there is no dispute that this application, 6 stems from the old law to the new law, in particular, the provisions of section 69 of the Act which now provides for manner to file an award and the way forward. For easy of reference section 68 provides as follows: Section 68 (1) An award made by the arbitral tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as judgement or order of the court. (2) Where leave of the court is given, judgment may be entered in terms of the award. (3) Save as otherwise provided, leave to enforce an award shall bot be Given where, or to the extent that, the person against whom it is sought to be enforced shows that the arbitral tribunal lacked substantive jurisdiction to make an award, (Emphasis mine) One cannot fail to see and find that there is big turnaround on how now deal with enforcement of award. Under the old regime, I agree with Mr. Nyika and the decision by the Court of Appeal of Tanzania in the case of TANZANIA COTTON MARKETING BOARD CASE (supra) that filing of the award was to be registered first and parties be notified for challenge or enforcement of the same. But as the law stands now, the filing alone is not enouqh but in my 7 own considered view guided by the provision of section 68 (1) it is until the court grants the leave no way an award can be enforced. More so, sub section 3 of section 68 underscore the point which is crystal clear that, leave to enforce cannot be granted until the award has passed the test of challenge by the person whom the award is sought to be enforced. The grounds to challenge an award are as provided for under sections 69 and 70 of the Act. The question I have to answer before granting or not to grant leave to appeal is, was the decision of Hon. Fikirini, Judge (as she then was) made after coming into force of the new Act? And if yes, was she justified to decide so and as such rendering the leave of no essence to the court of appeal as alleged? As earlier noted, the decision of Hon. Fikirini, Judge, on Misc, Commercial Cause No.34 of 2019 was given on 09th June, 2020 long after coming into force of the new Act and as such was pending in the light of section 91(4) was to be given in the light of the above stance that once the award is registered or leave is granted the court cannot sit to it and actually becomes functus officio. This automatically answer the second question that the decision by Hon. Fikirini, Judge( as she then was) was given within the four corners of the law. 8 The arguments by Mr. Nyika, though sounds logical and raises legal issue but with great respect to him, have been overtake by events. The learned counsel was to be vigilant with the effect of the new law in place in our jurisdiction because it had retrospective effect in its application. The best they could do was, to go for review of the earlier decision of Hon. Phillip, Judge and there from take up the matter within the ambit of the procedure in place to arrive at the safe destination. Failure to go by prescribed procedure definitely will arrive at wrong destination as well. This is the case here. On the totality of the above reasons, I find that the application for leave is misconceived and same must be and is hereby rejected. This application, is thus, struck out with no order as to costs. It is sb ordered. 9