20070802 TZHC Mwanza

IN THE ,. ;,-

HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ti'

IN THE DISTRICT REGISTRY

ATMWANZA MISC.CIVIL APPL.N0.4 OF 2007 JONATHAN KALAZE ....................................... APPLICANT Versus TANZANIA BREWERIES LTD ........................... RESPONDENT 5/7/2007 & 2/Si2007

RULING RWEYEMAMU,J: The applicant Jonathan Kalaze represented by counsel Mr. Banturaki advocate, has brought an application supported by affidavit against the respondent Tanzania Breweries Ltd, seeking orders:- "1. That the court be pleased to appoint an arbitrator to resolve the dispute which has arisen between the applicant and the respondent 2. That alternatively, the court be pleased to make an order to supersede the arbitration and allow the applicant to file a suit in Court against the respondent 3 .... costs... " The respondent opposes the application and through their - counsel, Mr. Kilingo of Law Associates Advocates have filed a counter affidavit in response, and therein raised a three pronged preliminary objection (PO) namely that: "(i) The application is brought under the wrong provisions of the Jaw; (ii) The application is incompetent as it contravenes the provisions of Arbitration Rules (Cap.JS R.£2002) G.N.No.427 of 1957 (iii) The application has been overtaken by events" '· I find it necessary to preface my decision on the raised points of PO, with a brief discussion of principles governing their use in civil ', 1 procedure. To that end, I find it best to quote verbatim the position as I summarized it in_the case of Musanga Ng'andwa v. Chief Japhet Wanzagi & others, HC civil case No. 9/2005 (Mwanza registry- unreported). I stated therein that:· "To gain a better

appreciation of parties arguments ...I find it expedient to begin by examining the meaning and use of the term PO in civil procedure - so as to answer the question of, what issues qualify to be raised as PO? The term PO in our Jurisdiction has been used as per rule established in Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd. (1969) EA 696. In that case, Law JA of the defunct Court of Appeal for East Africa giving examples of PO pointed to 'objection to the jurisdiction of the court, a· plea of limitation and the like.' He went on to observe that; ~ preliminary obiection contains a point of law........... and which if argued as a preliminary point may·dispose of the suit' And NEWBOLD JA in the same case continued that, •~ ••• a preliminary objection can not be raisedif any fact has to be ascertained." A "PO can not be based on unascertained factual matters" - said Kisanga JA (as he then was) in COTWU (T) OTTU Union & Another Vs Hon. Iddi Simba, Minister of Industries & trade and 7 others, Civil Appl.40/2002 {CA- unreported). Both authorities are as cited by my brother Shangwa J. in Mukubaganyi Mulumeo V TRC and 2 others, Civil case 300/1995 (DSM registry - unreported) which case I cited with approval in Hosea Mushumbusi & 49 Others V The Chairman Cum Secretary Kanyigo Sec. School D. Board, Misc. Cause No.7/2005 (Bukoba registry - unreported}. 2 With that in

mind, I proceed to consider the raised PO beginning with the last one, PO (iii). Elaborating on that PO, Mr. Mbwambo (counsel for the respondent at the hearing) submits that; the application is . incompetent for reason that it has been overtaken by events because the contract subject matter of the claim was a one year contract and its term ended on 8/10/1998. In response, Mr. Banturaki refutes that fact and submits that the same was extended under section 9 of the agreement for a further period ending October 2006; and that the breach subject matter of the application occurred within that period. Considering the use of PO as explained above, I find it unnecessary to go into the validity of the parties' arguments immediately above, in so far as the contested issue, existence or non existence of a contract, is a factual one entailing adducing of evidence before· a decision can be made; meaning the contested issue is based on "unascertained factual matters'; as such it can not be disposed of by way of PO. That issue can be decided after hearing the application. For that reason, I find PO (iii) unsustainable and dismiss it. Regarding PO (i) Mr. Mbwambo submits that; the section cited 7(2) of the Arbitration Act and section 5(2) of the 2nd schedule to the Civil Procedure Act, (CPC) do not relate to the application but to extension of time to commence arbitration; therefore that

the application was brought under a wrong section of the law and on the basis of existing precedent (one TCA case supplied); the court has 3 . . ' . . Jt not been properly moved; The application should for that reason be struck out. In response to Mr. Banturaki replies that the sections cited are proper as per Arbitration Ordinance and the CPC but not the Revised Edition; Mr. Mbwambo submits without authority that the law mandates use of the law as per Revised Edition 2002. I do not believe Mr. Mbwambo's last submission to be a correct statement of the law, in fact what I have noted in practice; the particular law is cited and its equivalent under the revised edition appended in brackets or both sources are cited. This practice makes sense in view of the fact that some of the revised edition texts contain mistakes. But that point need not detain us; a check of the Arbitration Act reveals that section 7 has been renumbered section 8 under the ' ·' Arbitration Act revised edition (CAP 15 R.E.2002). Section 8 gives· mandate to the court to do what the applicant asks. Further, I have checked section 5 of the 2nd schedule to the CPC (CAP 33 R.E. 2002); it empowers the court to appoint arbitrators in certain cases. Now, whether this is a fit case for the court to so act is not of immediate relevancy, the answer to the question whether a wrong section was cited is, and my reply

thereto is that the applicant cited a proper . section and therefore the respondent's PO on that issue is equally unsustainable and is accordingly dismissed. Regarding PO (ii), Mr. Mbwambo submits that the application contravenes the Arbitration Rules (Cap.15 R.E.2002) which requires all applications to be brought by way of petition. Mr. Banturaki replies 4 that such a requirement applies in respect of awards only. He is wrong. The plain meaning of the law as I understand it is that all applications; meaning awards and any . other, provided they are brought under the Act, must be by way of petition. The relevant law provides and I quote:- ''5. Save as otherwise provided, all applications made under the Act shall be by way ofpetition'~ Mr. Banturaki has not indicated, and I am not aware of any provision where the present application is made an exception to that rule. I accordingly accept the respondent's PO that the court has not been properly moved for reason that the application was brought contrary to the clear provision of the law as stated above. I thus sustain PO (ii) and order the application struck out, but make no order as to costs. Sgd: R. M. RWEYEMAMU

JUDGE 2/8/2007 AtMwanza 2/B/~007 Delivered in presence of Mr. Banturaki Advocate for the applicant and Mr. Mbwambo Advocate for the respondent this 2nd August 2007. Sgd: R. M. RWEYEMAMU

JUDGE 2/8/2007 5