comviva technologies vs venance edson 2022 tzhcld 940 29 september 2022

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 354 OF 2016 (Arising from an Award issued on 25/7/2016 by Hon. Kiwelu, L, Arbitrator, in Labour dispute No. CMA/DSM/ILA/684/12/570 at Ilala) COMVIVA TECHNOLOGIES LIMITED ………..................................... APPLICANT

VERSUS VENANCE EDSON ......................................................................... RESPONDENT

JUDGMENT Date of last order: 27/09/2022 Date of judgment: 29/09/2022 B. E. K. Mganga, J. On 18th October 2012, Venance Edson, the respondent filed Labour dispute No. CMA/DSM/ILA/684/12/570 before the Commission for Mediation and Arbitration henceforth CMA at Ilala alleging that he had a fixed term contract with the applicant and that the later terminated the said contract on 19th September unfairly. At CMA, five issues were drafted namely (i) whether the complainant (the herein respondent) was an employee, (ii) whether the complainant was terminated, (iii) whether the employer had valid reason for terminating the complainant, (iv) whether 1 the employer followed procedures in terminating the complainant and (v) what reliefs are the parties entitled to. On 25th July 2016, Hon. Kiwelu, L, Arbitrator, having heard evidence of both sides, issued an award that respondent was an employee of the herein applicant and that termination of the fixed term contract of the respondent was both substantively and procedurally unfair. The Arbitrator therefore awarded the respondent to be paid USD 45,526, as compensation for 20th months' and 12 days remaining period of the alleged fixed term contract of employment and USD 4,450 being two months' notice in lieu of notice all amounting to USD 49,976. Applicant was aggrieved by the said award hence this application for revision. In support of the

Notice of Application, applicant filed the affidavit affirmed by Aziza Mhina, advocate. In the said affidavit, the deponent raised six (6) grounds namely: - i). That, the arbitrator erred in law by exercised jurisdiction not vested to her by law entertaining the dispute which was not based on labour laws while knowing that the respondent was not an employee rather than a contractor. ii). That, arbitrator erred in law by exercised jurisdiction not vested to her by law entertaining the dispute while knowing that the dispute between the applicant and respondent was vested to the laws of India namely Indian Arbitration and Conciliation Act, 1966 and the Court in New Delhi, India. 2 iii). That, arbitrator erred in law by failed to exercised jurisdiction so vested to her by failing to hear and determine the applicant’s preliminary objection filed at the Commission on 18th December, 2012. iv). That, arbitrator erred in law by failed to exercised jurisdiction so vested to her by failing to analyze properly the evidence of applicant that the respondent was not employee rather he was a consultant and laptop given to him was due to security purpose considering nature of assignment. v). The honourable arbitrator erred in law and fact by considering respondent’s uncollaborated testimony. vi). That the honourable arbitrator erred in law and fact by failure to abide with the elementary

principle of burden of proof thus ordered the applicant to start adducing evidence as if the dispute was for unfair termination and hence lead to injustice on the applicant. The respondent filed both the notice of opposition and the counter affidavit to oppose the application. When the application was called on for hearing, Mr. George Shayo, advocate appeared and argued for and on behalf of the applicant while Ms. Stella Simkoko, Advocate appeared and argued for and o behalf of the respondent. Mr. George Shayo, Advocate for the applicant argued the 1st and 2nd jointly, 4 and 5 jointly and the 3rd separately. Counsel for the applicant abandoned the 6th ground of revision. Submitting on the 1st and 2nd grounds relating to jurisdiction namely (i) that the arbitrator erred to 3 entertain the dispute that is not of labour relation hence had no jurisdiction and (ii) that arbitrator had no jurisdiction because the jurisdiction was on Indian Courts, submitted that on 31st May 2012 parties entered into Consultancy Agreement (exh. D1) expiring on 30th November 2013. He went on that they had another consultancy agreement (exhibit A1) dated 31st July 2012 expiring on 30th November 2013. He went on that on 25th July 2012 parties signed addendum to extend the contract to 31 st May 2014. He argued that the agreement between the parties was for consultancy and not employer and employee

relationship. Mr. Shayo submitted that in Clause 1.6 parties indicated that the agreement is exclusively for consultancy and in clause 2 they agreed that respondent will be paid consultancy fee. Mr. Shayo submitted further that in Clause 9 parties agreed that the laws applicable were those of India and in Clause 8, they agreed that arbitration will be done in India using Indian laws. Counsel for the applicant submitted further that based on evidence that was adduced, respondent was supposed to follow dispute mechanism provided in the contract by resorting to arbitration in India. Counsel for the applicant maintained that the contract between the parties was of consultancy in nature and not of employment relationship and implored the 4 court the court to apply the provisions of Section 100(1) of the Evidence Act [cap. 6 R.E.2019]. He argued that there was no employee/employer relation hence CMA had no jurisdiction and that the award was improperly procured. Mr. Shayo cited the case of Peter Mwasandube V. Habibu African Bank Ltd, Labour Revision No. 172 of 2009, HC (unreported) to support his submission that since CMA had no jurisdiction, the award was improperly procured. He submitted further that the arbitrator considered only oral evidence of the respondent and disregarded documentary exhibits that were tendered by the parties and reached a wrong conclusion. Mr. shayo

submitted further that the Arbitrator erred to award the respondent without specifying whether it was salary or fees. He went on that, the said consultancy agreements shows that they agreed that respondent will be paid fixed consultancy fee in Tanzania shillings but in the award, respondent was awarded in US Dollar. Counsel for the applicant submitted further that there is no evidence that enabled the arbitrator to award the respondent in US Dollars. On the 3rd ground, Mr. Shayo, learned counsel for the applicant submitted that arbitrator erred in law for failure to determine a preliminary 5 objection raised by the applicant on 18th December 2012 relating to jurisdiction. He submitted that arbitrator suspended her decision on the preliminary objection promising to give her decision in the award, but she did not determine that preliminary objection in the award. Counsel submitted that it has been held several times that once a preliminary objection is raised, it must be decided or withdrawn or conceded and cited the case of Benjamin P. Masota v. Mrs. Esther Maneno, Civil Appeal No. 84 of 2010, CAT (unreported) to support that position. Submitting on the 4th and 5th ground namely that (i) the arbitrator erred for failure to analyze evidence that respondent was a consultant and not employee and (ii) that arbitrator erred to rely on uncorroborated evidence of the respondent, Mr.

Shayo submitted that evidence of the applicant especially documentary proved that the contract between the parties was for consultancy. He went on that respondent was given a laptop for security purposes and that there were reasons for the respondent to be issued with a laptop and that issuance of the said laptop alone did not create employment relationship. Counsel for the applicant concluded that the Arbitrator failed to analyze evidence and prayed the application be allowed. 6 In resisting the application, Ms. Stella Simkoko, Advocate for the respondent submitted on the 1st and 2nd ground that parties were bound by the contract that was not tendered. In the alternative, she submitted that parties were bound by the contract of contract for Consultancy Assignment (exh. A1) dated 31st July 2012 and the Addendum. She went on that, according to consultancy addendum, the contract was supposed to expire on 31st May 2014 as it was also testified by DW1 and the respondent (PW1). She submitted further that exhibit A1 was tendered by the employer i.e., the applicant in this application. In her submissions, counsel for the respondent conceded that parties had Consultancy Agreement but was quick to submit that the said consultancy agreement is not exhibit D1. When probed by the court as whether respondent raised an objection on admissibility of exhibit D1, she readily conceded that there

was none. In imploring the court that parties had employer /employee relationship, Ms. Simkoko, learned counsel for the respondent submitted that Section 4 of the Employment and Labour Relations Act [Cap. 366 R.E.2019] and Section 61 of the Labour Institutions [Cap. 300 R.E.2019] provides situations in which employer and employee relationship can be created even if the contract was not termed as contract of employment like 7 the situation in the application at hand where the contract that the parties entered was titled as “Consultancy Agreement”. Counsel cited the case of John Ngwegwe V. Super Spring (T) Ltd, Revision No. 306 of 2013 (unreported) to support her argument and maintained that the relationship between the parties was that of employer and employee hence CMA had jurisdiction. She went on that since parties had employment relationship, there was no need for the respondent to subject himself to the jurisdiction of India and Indian laws. Counsel for the respondent strongly argued that it does not matter how the contract was written, but the conduct of the parties that created employee and employer relationship must be considered. She argued that the conduct that respondent was given tools e.g., laptop, access to internet and office and that this is the conduct that created employer and employee relationship between the parties. in her when asked to clarify they work

which respondent was employed for, she replied that respondent was dealing with IT. Counsel for the respondent also submitted that respondent (PW1) testified that he was reporting daily to the Operation Manager of the applicant and that PW1 was not examined meaning that applicant admitted that as a truth as it was held in the case of Emmanuel Saguda @ 8 Salukuka & Another V. The Republic, Criminal Appeal No. 422 “B” of 2013 CAT (unreported). She however conceded that respondent was paid fee and that neither P.A.Y.E nor social security deductions was deducted. She concluded that CMA had jurisdiction. Counsel for the respondent submitted further that the fixed term contract between the parties was unfairly terminated on 19th September 2012 and the dispute was filed 18th October 2012 because Rule 8(1) and (2) GN. No. 42 of 2007 was not complied with at the time of termination of employment of the respondent. Counsel for the respondent cited the cases of Sandvick Mining Construction Tanzania Ltd V. Joseph Mlaponi , Revision No. 27 of 2012 and Generics & Specialties Ltd V. Kalenga Katele, Revision No. 833 of 2019, HC (unreported) to support her position as to what is the procedure to be followed in termination of a fixed term contract. On the 3rd ground, relating to failure of the arbitrator to determine the preliminary objection, counsel for the respondent briefly submitted

that the preliminary objection was determined on 22nd February 2013. 9 Submitting on the 4th and 5th ground, counsel for the respondent argued that evidence was well analyzed by the arbitrator. Submitting on the issue relating to fee or salary payment, counsel for the respondent submitted that respondent testified that he was paid in US Dollars and was not cross examined on that. She argued that that is the basis of the arbitrator to award respondent in US Dollars. She went on that the complaint that arbitrator relied on uncorroborated evidence has no merit because what was testified by the respondent was not disputed. Counsel concluded that respondent was entitled to be paid salary for the remaining period of the contract and prayed that the application be dismissed. In rejoinder, Mr. Shayo, learned counsel for the applicant responding on the argument that the preliminary objection was determined argued that there were three sets of preliminary objections namely, (i) jurisdiction, (ii) recusal of the parties and (iii) respondent worked for not more than six months. He argued that Preliminary objection on jurisdiction raised on 18 th December 2012 was not determined. Mr. shayo submitted that whether a contract is for consultancy or not, a person must report to the person who 10 gave work. He concluded by submitting that parties were bound by the contract they entered. I have

examined the CMA record and find that on 4th February 2013 three objections namely (i) the contract between the parties does not give rise to employment relationship hence CMA had no jurisdiction, (ii) the contract between the parties vested jurisdiction to the courts in New Dell India, and (iii) respondent worked for less than six months. On 22nd March 2013, Hon. Kiwelu L, Arbitrator, delivered a ruling dismissing the preliminary objection relating to the nature of the contract on ground that it requires evidence hence it is not a preliminary objection. On the preliminary objection that respondent worked for less than six months', the arbitrator dismissed that preliminary objection on ground that CMA has powers to award the respondent the remaining period under Part F of the Employment and Labour Relations Act [Cap. 366 R.E. 2019]. On the preliminary objection that the dispute was supposed to be filed in India, the arbitrator held that respondent was working in Tanzania hence CMA had jurisdiction. It is not true therefore that, the arbitrator did not determine the preliminary objection relating to jurisdiction as argued by counsel for the applicant. Whether in the ruling dismissing the preliminary 11 objection the arbitrator was right or wrong, that is another issue but for now, it suffices to hold that preliminary objections were determined. The preliminary objection relating

to recusal of parties namely advocate of each side due to conflict of interest was raised on 18 th June 2013 and on 13th December 2013, the arbitrator issued a ruling thereof. I therefore dismiss the 3rd ground. It is undisputed fat that the parties had a fixed term contract. The most contented issue in this application is the nature of the said contract namely whether it gave rise of employer and employee relationship and jurisdiction of CMA And a follow up issue being whether arbitrator analyzed evidence of the parties properly. In disposing this application, for convenience, I will deal first with the issue relating to analysis of evidence of the parties including but not limited to the wording of the fixed term contract the parties had. I have taken that route though may be long but conveniently can lead to better conclusion. It was evidence of Poonam Tharad (DW1) that in July 2011 applicant entered a consultant agreement (exhibit D1 collectively) with the respondent to hand customer issues and managing the system operations. 12 It was further evidence of DW1 that later the parties signed an addendum to the said consultant agreement. It was also evidence of DW1 that respondent was consultant for a particular assignment and for a particular duration. She testified further that respondent was not like any normal employee because he was neither subjected to office process

like performance appraisals nor filling the time sheet because he was a consultant. There was no one who was controlling the complainant in his daily activities. Dw1 testified also that it was a delivery contract and that there was no hours of work and hat respondent was not supposed to stay at home for more than 7 days without informing applicant because respondent was supposed to be solving complaints from customers. While under cross examination, DW1 testified that the said fixed contract was supposed to end in July 2012 but it was extended to May 2014. She testified further that respondent was not an employee and that he was paid monthly after raising invoices while other employees were paid without issuing invoices. When responding to the question raised by the arbitrator, DW1 testified that respondent was not entitled to be given leave because he was not an employee. 13 On the other hand, Venance Edson Bilintyao (PW1), the applicant testified that initially he was employed for unspecified period by IBM but when applicant came, he moved to the applicant. In his evidence, respondent (PW1) on 25th July 2011 he entered a one-year fixed term contract with the applicant in May 2012 he signed a two-years fixed term contract with effective from 1 st August 2012 and later on he signed an addendum. He tendered a contract dated 31 st July 2012 as exhibit A1 and Addendum as exhibit

D1. PW1 testified further that he was reporting to Pricilla Clavasi, the Operation Manager, who was based in Kenya, the applicant’s headquarters in Africa. He testified further that he was given a laptop and other tools to enable him to perform his duties including office, internet, identity card and footing telephone bills. Testifying on reasons for termination, respondent (PW1) stated that in early September 2012 there was allegation of theft of money from Airtel Money system, as a result, he was suspended and on 19th September 2012 he was terminated. He testified that he was claiming salary for 22 months' remaining on the contract the parties had as shown in the addendum that it was expiring on 31st May 2014, two (2) months' salary in lieu of notice, 19 days salary for 14 September 2012. When under cross examination, respondent (PW1) is recorded stating inter alia: - “S. Unaeleza ulikuwa unaanza kazi saa 1:45 na kutoka saa 11 jioni kila siku? J. Ndiyo. S. umesema uthibitisho ni mkataba? J. Ndiyo. S. Kwenye Mkataba (Kielelezo A1) ni wapi imeelezwa. J. siwezi kuonesha hapa. Nilihamia Conviva nikitoka Airtel Mkataba wa Airtel ulionesha muda. … S. ulitoa Addendum ambayo ni mwendelezo na mkataba wa awali. Adendum ilikuwa ni ya 25/7/2012, ndiyo? J. ndiyo. S. Paragraph 4 wana refer consultancy agreement ipi wana refer. J. ile ya kwanza ya 2011, ila sina uhakika. … S. kuwa kwako

consultant ilikuwa inazuia kureport kazi kwa conviva. J. Haikuwa inazuia. S. katika D1 na A1 kuna sehemu inaonesha kuwa utapewa vifaa vyote vya kazi? J. Kazi nilianza kwa mkataba wa mwanzo was 2011. Mkataba huo haujatolewa lakini ndiyo unaoendelea…” (Emphasis is mine) I have examined the contract tendered by DW1and the addendum thereof (exhibit D1 collectively) together with the contract tendered by the respondent (exhibit A1) and the addendum (part of exhibit D1) and find 15 that the contract between the parties was for consultancy and did not create employment relationship. More so, the said contract ousted jurisdiction of our courts or CMA. The contract that is part of exhibit D1 reads in part: -

CONTRACT FOR CONSULTANCY ASSIGNMENT Executed on 31st May 2012 with effect from 1st June 2012 Between Venance Edson, residing at P.O. Box 9623, Dar es Salaam, Tanzania, hereinafter the “Consultant”, of one PART, And Comviva Technologies Limited at A-26, sector 34, Infocity, Gurgaon- 122001, Haryana, India (hereinafter referred to as “Conviva” or “Company” … 1. TERMS AND CONDITIONS 1.1… 1.2 Capacity of Consultant The Consultant shall work in the capacity of an independent contract and not as an agent or regular employee of Conviva.

2. CONSULTANCY FEE 2.1 Consultancy fee and Reimbursements Unless revised, the Consultancy fee, its structure and other reimbursements to the Consultant shall be as per Appendex-2 3. TERMINATION 3.1 Comviva and the Consultant may terminate this contract by giving 2(two) months' written notice in advance or equivalent Fixed Consultancy Fee in lieu of … 4. ABANDONMENT OF THE ASSIGNMENT. 16 In case the Consultant does not report to the Comviva office for seven (7) or more consecutive calendar days without any prior information and /or approval, it shall be deemed that the Consultant has abandoned the contract. This shall be without prejudice to the right of Comviva to initiate legal proceedings against the Consultant to safeguard its genuine business interest.

8. DISPUTE RESOLUTION MECAHNISM Any dispute in relation to or arising from this (sic) will be resolved in discussions between Comviva and the Consultant. In the event the parties fail to resolve the same through discussions within fifteen days from intimation by one Party to the other of such dispute, either Party may refer the dispute exclusively to arbitration for final settlement. The arbitration proceedings shall be conducted as per the Indian Arbitration and Conciliation Act, 1996 and Rules made there under unless decided otherwise by Comviva in its discretion. Arbitration shall be conducted by a sole arbitrator appointed mutually by the parties. In the event the Parties fail to mutually decide place of arbitration shall be New Delhi, India. The language of arbitral proceedings shall be English and the award shall be made in English language. …” (Emphasis is mine) I have examined Appendix 2 that is, Consultancy Fee Structure (Consultancy Fee and Reimbursement) and find that it shows that parties agreed that the consultant will be paid (i) TZS 22,113,312/= as Fixed Consultancy Fee, (ii) TZS 5,528,328/=as performance Based Consultancy Fee and that the total consultancy fee will be TZS 27,641,640/=. In addition to the foregoing, parties agreed that the consultant shall be paid 17 (i) TZS 18096000/= as skill based per annum and (ii) TZS 345520/=per month as advance from the

variable Consultancy fee. They agreed further that, the later payment will be paid with the monthly Fixed Consultancy Fee till the Consultant’s next Consultancy Fee review or 31 st May 2013, whichever is earlier. The said Consultancy agreement (part of exhibit D1) was signed by the parties on 22nd August 2012. Further to that, parties executed an addendum (part of exhibit D1) extending the contract period to 31 st May 2014. The said Addendum reads in part: - “ADDENDUM TO CONSULTANCY AGREEMENT” THIS AMENDMENT, effective as of the 25th of July 2012(“addendum”) COMVIVA TECHNLOGIES LIMITED whose registered office is at A-26, Info City, Sector, 34, Gurgaon, 122001, Haryana, India And Mr. Venance Edson, residing at PO. Box 9623, Dar es Salaam, Tanzania on the other part hereinafter referred to as the “Consultant” It is clear from exhibit D1 collectively that respondent was employed as consultant and not as an employee. I am of that conclusive opinion because Clause 1.2 of the said contract (part of exhibit D1) Clearly 18 provides that “the Consultant shall work in the capacity of an independent contract and not as an agent or regular employee of Comviva”. On the other hand, as pointed hereinabove, respondent (PW1) tendered Contract for Consultancy Agreement (exhibit A1) with similar terms to that in Contract for Consultancy Agreement tendered by DW1 (part of exhibit D1). The only

difference is the date of execution of these contracts. I have noted that while exhibit D1 shows that it was executed on 31st May 2012 with effect from 1st June 2012, exhibit A1 shows that it was executed on 31st July 2012 with effect from 1st August 2012. For clarity and better comparison, I reproduce part of exhibit A1 which provides: - “… 1.2 Capacity of Consultant The Consultant shall work in the capacity of an independent contract and not as an agent or regular employee of Conviva.

4. ABANDONMENT OF THE ASSIGNMENT. In case the Consultant does not report to the Comviva office for seven (7) or more consecutive calendar days without any prior information and /or approval, it shall be deemed that the Consultant has abandoned the contract. This shall be without prejudice to the right of Comviva to initiate legal proceedings against the Consultant to safeguard its genuine business interest.

8. DISPUTE RESOLUTION MECAHNISM 19 Any dispute in relation to or arising from this (sic) will be resolved in discussions between Comviva and the Consultant. In the event the parties fail to resolve the same through discussions within fifteen days from intimation by one Party to the other of such dispute, either Party may refer the dispute exclusively to arbitration for final settlement. The arbitration proceedings shall be conducted as per the Indian Arbitration and Conciliation Act, 1996 and Rules made there under unless decided otherwise by Comviva in its discretion. Arbitration shall be conducted by a sole arbitrator appointed mutually by the parties. In the event the Parties fail to mutually decide place of arbitration shall be New Delhi, India. The language of arbitral proceedings shall be English and the award shall be made in English language. …” (Emphasis is mine) I have noted that page 2/8 of exhibit A1 that contains consultancy agreement and mode of termination is missing in that exhibit, but other pages are the same. As pointed hereinabove, exhibit A1 was tendered by the respondent (PW1) to advance his case that he had a fixed term of employment with the applicant. But the wording of the said exhibit shows that the parties entered a consultancy agreement. Respondent testified that the contract the parties entered was not tendered but admitted that the addendum

extended life span of the said contract to the period appearing in the addendum (part of exhibit D1). In fat, in his evidence, respondent (PW1) did not disown the addendum (part 20 of exhibit D1). Whatever arguments can be raised by the respondent, his evidence (exhibit A1) that is similar to exhibit D1 tendered by the applicant prove that the parties signed consultancy agreement and that respondent was a consultant and not an employee. It is my view that, the arbitrator erred to treat the agreement between the parties as employment relationship in clear presence of clause 1.2 which shows that the contract did not create employment relationship. It was an error and unnecessary on part of the arbitrator to invoke the provision of section 61 of the Labour Institutions [Cap. 300 R.E. 2019] while things were quite open. I am of that view because, in absence of ambiguities, the court must enforce what parties agreed and respect their intention unless it is contrary to public interest and security. In fact, the court of Appeal in the case of Simon Kichele Chacha vs Aveline M. Kilawe, Civil Appeal No. 160 of 2018 [2021] TZCA 43, Kilanya General Suppliers Ltd & Another vs CRDB Bank Ltd & Others, Civil Appeal No. 1 of 2018) [2021] TZCA 3529, held that parties are bound by the terms of the contracts they entered freely. In Kilawe’s case (supra) it was held:- “It is settled law that

parties are bound by the agreements they freely entered into and this is the cardinal principle of the law of contract. That is, there should be a sanctity of 21 the contract as lucidly stated in Abualy Alibhai Azizi v. Bhatia Brothers Ltd [2000] T.L.R 288 at page 289 thus: - 'The principle of sanctity of contract is consistently reluctant to admit excuses for non- performance where there is no incapacity, no fraud (actual or constructive) or misrepresentation, and no principle of public policy prohibiting enforcement " Guided by the above Court of Appeal authorities, I hereby hold that the parties had a consultancy agreement hence CMA had no jurisdiction. Again, from the wording of clause 8 of exhibit A1 and D1, the parties were supposed to refer the dispute in India within fifteen days from the date the dispute arose and the laws that were applicable are not Tanzanian laws. The mere fact that the parties executed their agreement while in Tanzania and the fact that respondent was working in Tanzania, did not cloth CMA jurisdiction to determine the dispute between the parties in presence of clear and unambiguous terms of the contract in which the parties chose the law and place in which the dispute will be handled. In the cases of Sunshine Furniture Co. Ltd vs Maersk China Shipping Co. Ltd & Another, Civil Appeal No. 98 of 2016 [2020] TZCA 1934 , Scova Engineering S.P.A &

Another vs Mtibwa Estates Ltd & Others, Civil Appeal 133 of 2017 [2021] TZCA 74, Jovet Tanzania Limited vs Bavaria N.v, Civil Appeal No. 207 of 2018 [2022] TZCA 557 to mention a 22 few, the court of Appeal had an advantage of deliberating on the effects of clauses in contracts between the parties like the application at hand. In all these cases, the Court of Appeal held that parties chose the law and a forum for dispute to determined and that the clause did not oust jurisdiction of the courts. In Jovet’s case, the Court of Appeal held inter- alia: - “… sanctity of the Agreement between the parties prevailed. The principle embedded in the Latin maxim of pacta sunt servanda is what is relevant here. This maxim simply means agreements must be kept. In Scova Engineering S.p.A and Another v. Mtibwa Sugar Estates Limited and Three Others, Civil Appeal No. 133 of 2017 (unreported), we discussed at some considerable length and cited a plethora case from within and outside this jurisdiction on whether the jurisdiction of our courts may be ousted. We held that: ‘... the jurisdiction of the High Court or any court for that matter, having been conferred by statute, is not capable o f being ousted by agreement of the parties except by statute in explicit terms. In the case at hand, applying the above legal position, the parties having been agreed that disputes arising out of the Agreement

would be resolved by a certain forum, they did not mean to oust the jurisdiction of the courts in Tanzania…” In the above Court of Appeal cases, it was held that parties were supposed to submit themselves to the forum they chose for the dispute to 23 be determined. I therefore hold that, since parties in the application chose Indian laws and their Forum to determine their dispute as India, then, they were supposed to file the dispute in India. For the foregoing, I find that the application is merited. I therefore allow it to quash and set and aside the CMA award because CMA had no jurisdiction. Dated in Dar es Salaam on this 29th September 2022. B. E. K. Mganga

JUDGE Judgment delivered on this 29th September 2022 in chambers in the presence of George Shayo, Advocate for the Applicant but in the absence of the respondent. B. E. K. Mganga

JUDGE 24