shekha nassor vs commercial bank of africa tanzania ltd another 2018 tzhccomd 86 8 june 2018

e IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC COMMERCIAL CAUSE NO 368 OF 2017 BETWEEN MS SHEKHA NASSOR --------------------------------------------------------------CLAIMANT VERSUS COMMERCIAL BANK OF AFRICA TANZANIA LIMITED----------------RESPONDENT MlJTlJAL DE'\'ELOPMENT LIMITED----------------------------------------THIRD PART"Y' RULING SONGORO,J On the 9th November, 2017 the court was served with a letter from Hon. Justice Thomas B Mihayo the Arbitrator forwarding an Final Award in the arbitration which took place between MIS Shekha Nasser and Commercial Bank of Africa Tanzania Limited and Mutual Developers. Then on the 7/2/2017 Mr Nyange Godson appeared for claimant and was ordered to serve summons to the Commercial Bank of Africa Tanzania Limited and Mutual Development Limited informing them that, the fmal award has been filed in this court by Arbitrator. Next the court fixed the matter on 19/2/2018 for necessary order. Later on 19/2/2018 when the suit was called for necessary order Mr Godson Nyange, Learned Advocate appeared for the claimant and Ms Neema Hald, Learned Advocate appeared for the Respondent Then, Ms. Neema Hald briefed the court on 19/2/2018 that, Respondent intend to challenge the final Arbitration Award. The court upon hearing the Respondent' Counsel that, she intent to file a Petition, it granted 14 days to Respondent to file Petition to challenge a Final Award. Page 1 of 4 e Pursuant to the court order Respondent filed a Misc Commercial Cause No 47 of2018 on the 5th March, 2018 which is a petition to challenge the Final Award. The court perused the Petitioner's petition and find is based under Section 15 of the Arbitration Act, Cap 15 [R.E 20021 read together with Rules 5,6,7 and 8 of the Arbitration Rules GN 427 and other enabling provisions of the Law. Responding to the Petition, Mr. Godson Nyange Learned Advocate of the Respondent filed a reply to the Petition and raised and filed three Preliminary objections on points oflaws that;- 1) That, the Petition is bad in law for having been filed under the wrong provisions of the law 2) The petition includes wrong parties In the light of preliminary objections which were raised, the Respondent prayed that, the petition be dismissed. Thus on 17/4/2018 when the petition was fixed for Orders Mr Yassin Maka and Ms Lucy Kiangi Appeared for the Claimant. Then Mr Yassin Maka notified that, court that, that, there are conceding to the Preliminary Objection on points of Law raised by Respondent and they prayed to withdraw the petition with the leave to refile. Following, Mr. Yassin and Ms Lucy Kiangi admissions that, the petition was bad in law and their prayer to withdraw the petition the court then granted an order that, Misc Commercial Cause No 47 of 2018 was marked to have been withdrawn with no order as to costs. Then the court made an order that, the Petitioner are at the liberty to institute the Petition to challenge the Award subject to the laid down procedure. But a prayer for leave to refile which was prayed was rejected. Page 2 of 4 e Then on the 17/4/2018 the Misc Commercial Cause No 368 of 2017 was called for necessary order and Mr. Attley Tawe Learned Advocate appeared for the Claimant and Yassin Maka and Ms. Lucy Kiangi Learned Advocates appeared for the Respondent and Third Party. Then Mr. Attley after noting that, there is no any other petition which is pending he applied to the Court to make an order that, the final award be registered and enforced as a court decree. On their part Mr. Yassin Maka, Learned Advocate he insisted that, the court should desist from registering the Final Award and making an Order that, be enforced as a court decree because is bad in law despite the fact that, their petition was withdrawn. The Respondent's Learned Counsel insisted that, they still intend to file a petition to challenge the Arbitration. The court has subjected the arguments from both parties into clause scrutiny and find a Final Award was filed into this court on 9th November 2017 and up to-date 6/6/2018 when the court cross checked the case file it find there is no a valid petition to challenge the Final Award was filed. Due to the fact that, there is no any valid petition before the court by 6/6/2018 I hereby find that, item 21 of the Third Schedule to the Law of Limitation Act No 89 [R.E.2002] provides a period of 60 days to file a "Petition to challenge the Final Award made under the Arbitration Act Cap 15 [R.E 2002] which fall under" any written laws has elapsed without any other valid petition or application for extension of time. In that, regard, I hereby pursuant to Sections 29(2) and 30(1) of the Arbitration Act, Cap 15 [R.E 2002] makes an Order to the effect that, the Final Award and filed in court, by Justice (rtd) Thomas B Mihayo, the Arbitrator is hereby registered in this court and shall be enforceable as a decree of the court. The right of appeal is fully expressed to the parties. Dated and Delivered at Dar es Salaam this 8th .day of June 2018 Page 3 of 4 e Page 4 of 4