19880226 TZCA Dar es Salaam2

IN THE COURT OF APPEAL OF TANZANIA · AT DAR ES Sl1LAAM CIVIL APPEAL NO. 20 01i' 1987 CONSTRUCTION ENGINEERS AND BUILDERS LIMITF.n •• o ••••• • II.PF8LL1\NT vmsus SUGAR DEVELOPNENT CORPORATION. O • o O O O • O O • O O o·o O O O 0 O O O .ffESPONDENT (Appeal from the ruling of the IiiB"h _Court of Tanzania at Dar es Saloom) (Mapigano, J.) doted 24th dc1y of July, 1986 in High Court Civil Cose No. 40 of 1985_ JUDGMENT .01~ THE COURT' MA1CAME 2 J •!!.!. In High Court Civil C3se No. 40 of 1983 9 involvine the .same parties as in the present appeal 9 Mapig,:mo, J. gnve a ruling from which the present respondents 9 SUG/Jt DEVELOPMENT CO!lPORATION 9 hereipafte-r referred to ps SUDEC0 9 appealed to this Court. . The High Court ruling was in connect ion with an award which the _and parties' arbitrator, Mr. A.G. E. SHAYO, had madeL which award the ~resent appellants challenred in the Hirrh Court. SUDECO were disatisficd w.ith that Ruline so they duly appealed to this Court in Civil Appeal No. 3 of 1986. The present appellants were obviously unhappy with soine aspects of the d.Gcision of this Court in the appeal referred to and their f!Janagin& Director, one B. L. IUlPOOR, wrote a letter to the Honourable the Chief Justice, copied to the Honourable the Attorney General and six -other persons, saying in effect that hG' felt that the judgement was not fair. The Court of Appeal had decided.

that Mr. 8 hayo should work out the monGtary award again and the court spelt out six factors for Nr. Shayo 's guidance. Hr. Kapoor did not want Mr. Shayo to handle the award 1:my more, henne the said letter to the Honourable the Chief Justice. Subsequently the present appellants, whom wo now refer to as C.E.B., mode a Chamber •.•.• /2 I - 2 - Application to the Hieh Court, asking it to restrain Mr. Shayo .:firom proceeding with the nrbitrat ion 9 thcJt 1is to say, from carrying out the directions of the Court of Appeal; becausG in the words of Mr. Kapoor in his affidavit, he, Mr. Iwpoor, wos !!apprehensive that the said arbitrator will not do justice in this matter"·• Mr. Lakha, learned advocate, appeared for C.E.B., as he had done through out; and as it turned out thGt application wns heard by the s 8 me judge, Map:igano, J. ·Mr._ Bantur~ki~ leGrned counsel, appeared for SUDECO. Mro Lakha submitted before the Hi1.sh Court thot he was pro,cGeding under section 17 of the Arbitrotion Ordinance and, in reply to Mr. Banturaki 1 s protGstations that the High Court had no power to stop the orbitr£1tor f rorn executing the order of the Court of Appeal, Mr. Lakha replied, and we quote, 11 Court of Appeal has not considered the question of impartiality and. we feel that. this Court (that is the High Court) still has- power ·to remove the 8rbitrator 11 • In his brie?f ruling refusing the

application Mopi1:;on9l' J. remarkotl that to clo what he was being asked to do would be "tantamount to disturbing an order of a superior court which is fundamentally ·wrong •••••••••• I enjoy no power to do so". C ,E.B. was d isatisfied ·with the above rul ine; hence the present appeal. The same leorned counsel who appec1red bGfore the I-iigh Court represented their respective -clients befor0 us. '- The sectio? 17 the appella~ts sought to rely on scysg "Where an arbitrator or umpire has misconducted himself tho court may remove him.". It is beyond argument that the court referred to h<?re is the High Court but the point of the matter is that the al10gcd misconduct in the present ·case is the sc1me one the Court of Appeal in Civil Appeal No. 3 of 1986 was a:vmre of~ and took into account, when it ••• 0 •• /3 J' 3 made the decision that the parties should go back to Mr. ::ihayo for the monetary part of the award. That was the position which could not be changed by Mr. Kapoor 1 s outburst which was as irrelevant as it was irreverent. C.E.B. did not allege that Mr. Stiayo had in any way misconducted himself with regard to the arbitration .since the Court of Appeal made its decision. To go to the High Court in purported aocordance ·with Section 17 in those circumatarices was i.h our View an ill-advised effbrt to resurrect the tnatter. We are satisfied that Mapigano, J. acted with propriety artd jtlstice in refusing the application before him and that the appeal" before us :ls ciearly devoid bf merit•. It is accordingly dismissed with costs. DATED at DAR ES SALAAM this 26th day of February, 1988. F. L. NYALALI

CHIEF JUSTICE L. M. MAKAME

JUSTICE OF APPEAL A. M. A. OMAR JUSTICE OF_!~ I certify that this is a true copy of the original • . v?~'rf/ ( J. H. 1'1SOFFE) SENIOR DEPUTY RffiISTJ.y~.