KIGOMA UJIJI MUNICIPAL COUNCIL VS NYAKIRANGANI COSTRUCTION LTD MISC

Page 1 of 13 IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION ) AT DAR ES SALAAM MISC COMMERCIAL APPLICATION NO 147 OF 2015 Arising from Commercial Case N o ........... BETWEEN KIGOMA UJIJI MUNICIPAL COUNCIL------------------ APPLICANT VERSUS NYAKIRANGANI CONSTRUCTION LIMITED ------------ RESPONDENT RULING SONGORO, J On the 19th June 2015, Kigoma Municipal Council, through the Attorney General, instituted this instant application, praying for an Order for enlargement of period of time, in which to file the Petition to challenge the Arbitration Award. The Applicant's application is made under Sections 93, and 95 of the Civil Procedure Code, Cap 33 [R.E.2002] and Section 14(1) of the Law of the Limitation Cap 89 [R.E.2002] and is supported by an affidavit sworn by Emmanuel Wenceslaus. who also filed a counter affidavit sworn by Mahuza Mumangi Principal Officer of Company to oppose the Application. In addition to the Counter Affidavit, Respondent filed a Preliminary Objection that, that the court lack jurisdiction to hear and determine the application because the Applicant did not cite, enabling provisions of the law. For convenience purposes and to serve the time of the court after consulting the parties decided that, both preliminary objection and the application be argued together. Thus, the light of the Application and the Counter Affidavit on the 16/7/2015, when the Application was due for hearing both Mr. Mwitasi, Learned State Attorney, who appeared for the Applicant, and Mr. Denis Msafiri, Learned Advocate who appeared for the Respondent, applied to pursue the application by a way of written submissions. With the leave of the court the parties pursued the application by way of Written Submissions. On his part the Applicant, in his Written Submission, briefly stated that, , the Preliminary Objection raised by the Respondent that, the court has no jurisdiction to entertain and determine the application Page 3 o f 13 for reasons that, the Applicant did not cite enabling provision, has no merit at all. The Applicant then elaborated his point by saying that, Section 14(1) of the Law of Limitation Act, Cap 89 [R.E.20021 is the enabling provisions of the law which empowers the court to extend the period of limitation. Further, the Applicant clarified that, Section 93 of the Civil Procedure Act Cap 33 , [R.E.2002] is the enabling provision which enables the court to enlarge time of complying of any court order. It was the Applicant submission that, since the High Court Commercial Division Procedural Rules, GN 250 of 2012 is silent, on the extension of time of limitation and on enlargement of time for performance of any court action ordered by the court then the Law Limitation Act, Cap 89 R.E.2002 and Civil Procedure Code , Cap 33 fR.E 2002] applies. For that reasons, the Respondent objection has no merit. On the merit of the application, the Applicant stated in paragraph 2.2. and 2.3 of their submission, they are applying to enlarge the period of time to comply with the court order dated 19/11/2014 which permitted to file a Petition to challenge the Arbitrators Award. Page 4 of 13 Regarding the Arbitration Award, the Applicant relying on Paragraphs 4 and 5 the affidavit in support of the Application, stated that, on the 28/5/2012 they signed a contract with the Respondent for construction of two roads in Kigoma Municipality. The first road was from Airport -Mwasenge. The Second road, was from Job Lusinde to Mjimwema. The constructions of the two road lead to several disputes between the Applicant and Respondent and the contract was terminated on 2/12/2013, and the dispute was referred to Arbitration. After , Arbitration, the Arbitrator filed a Final Award in this court which now is subject of Misc Commercial Case No 277 of 2014. It is the argument of Applicant, in paragraphs 16,17 and 18 of their affidavit that, they intend to challenge the Final Award of the Arbitrator, for reasons that Final Award is based on the illegality issues, like they were condemned unheard, there was bias, and granted reliefs in "Final Award" some are nullity. It was their arguments, and prayer that, it will be just, and fair to grant the Applicant time to file a Petition to challenge the Final Award. On the reasons why the delayed to file the Petition to Page 5 o f 13 challenge the Arbitration Award, the Applicant submitted that, there were pre-occupied with another Petition which they were challenge Arbitration Award, but their Petition was struck out by the court, on the ground that, it was wrongly filed. They then argued that, by the moment their Petition struck out, the requisite time of filing a Petition to challenge an award had expired. Finally, Applicant submitted that, since there was a Court Order which allowed them to file a Petition, and it was not set aside, and they have pinpointed number of irregularities which were committed by the Arbitrator as narrated in paragraph 11 of the affidavit, that, in itself is "sufficient reason" to enable the court to extend the time of filing the Petition to Challenge the Award. To support his argument the Applicant referred the court to the decisions in Civil Application No 12 of 2009, Between CRDB Bank and Another Versus Serengeti Road Services , Court o f Appeal o f Tanzania, Dsm Registry, and in Civil Application No 48 of 2009 Between Kashinde Machibya Versus Hafidi Saidi , where the Court of Appeal insisted that, where the point of law at issue is "illegality" that, may constitute sufficient reasons. Responding to the application, Respondent argued that, the application was made under Sections 93 and 95 of the Civil Page 6 of 13 Procedure Code, Cap 33 [R.E.2002] which are not enabling provisions of the law which may enable the court to grant the orders sought in the Application. Further, Respondent submitted that, even Section 14 (1) of the Law of Limitation Act, Cap 89, [R.E 2002] may not enable the court to grant the orders sought in the Application which is for enlargement of time to file a Petition. Respondent elaborated that, an order which enlarged the time of the Applicant to file a Petition was made by the Court on 19/11/2014, and the Applicant did not utilize it properly. Instead the Applicant filed a defective Petition which was struck out. It was the Respondent's insistence that, the Law of Limitation Act, Cap 89 does not apply. To support his argument, Respondent referred the Court to the decision in the case of Chama cha Walimu Tanzania Versus The Attorney General Civil Application No 151 of 2008. Further, the Respondent argued that, Section 14 Cl) of the Law of Limitation may not be applied to extend the period prescribed by the Court Order. In the light of his Preliminary Objection, the Respondent prayed the court to uphold the objection and dismissed the Application with costs in his favour because none citation of the relevant provisions of Page 7 of 13 the law renders the application to be incompetent and has to be struck out. Submitting on the merit of the Application, Respondent stated that, the applicant has not in his affidavit and application assigned sufficient cause to enable the court to grant an order for enlargement of time. On the Applicant's complaint that, there was illegality and Applicant was condemned unheard, the Respondent argued that, the Arbitration was heard inter-parties and the Applicant was duly heard. So the Applicant assertion that, there are irregularities is not even found in the affidavit and has no basis. Finally, the Respondent prayed to the court to dismiss the Applicant's application on two grounds, first the court has no jurisdiction to entertain and grant it. Secondly, the Applicant has not shown sufficient reasons to justify enlargement of time to file a Petition to challenge the Arbitration. So, application has no merit and it should be dismissed with costs. Page 8 of 13 I have carefully considered the Applicant application and find is applying for a court order, for enlargement of the period , within which to file the Petition challenging the Arbitrators Award which was filed through Misc Civil Cause No 277 of 2014. Next the court find as Respondent claim that, the Applicant in his application has cited Sections 93,and 95 of the Civil Procedure Code, Cap 33 [R.E.2002] and Section 14(1) of the Law of the Limitation Cap 89 [R.E.2002]. Also, on the ground of application, court noted that, the Applicant is contesting that, the Award has "illegalities". Therefore the interests of justice demands the Applicant is allowed to challenge it by a way of the Petition. In the light of the above stated background , the court is of the view that, there two key issues for determination in the application. The first point for determination, is whether, the Applicant in his application has not cited, relevant and enabling provisions enabling the court to entertain, and determine the application for enlargement of period within to file the Petition to Challenge the Arbitration. Page 9 of 13 The second point for determination is whether the Applicant has assigned sufficient reason for enlargement of time to file a Petition to challenge the Arbitral Award. Turning to the first point of whether or not Sections 93 , of the Civil Procedure Code, Cap 33 [R.E 2002] , and 14(1) of the Law of Limitation Act, Cap 89 [R.E.2002] are irrelevant in the instant application, I easily found that Section 93 of the Civil Procedure Code, Cap 33 which has been cited in the application is relevant and enabling provisions in the application for enlarging the period fixed by the Act or by the Court. Upon carefully revisiting Sections 93 of the Civil Procedure Code, Cap 33 fR.E 2002] I found it allows this court to enlarge time and from time to time as the court deems. Indeed the section it stipulates that; Where any period is fixed or granted by the court jo r the doing of any act prescribed, or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Thus going by wording Section 93 of Cap 33 cited above, I find it allows the court to enlarge the time where there is any period for doing any act prescribed, or allowed by the Act, or it may extend any period which has been granted by the court from time to time. So, on the Respondent 's objection, I would say since the Applicant has cited Section 93 of the Civil Procedure Act, in his application for Page 10 o f 13 enlargement of time ,1 find the application is proper because there is enabling provision which has been cited. The cited Section 93 of Cap 33, enables the Court to hear, and determine the Application. It seems to me where a party has cited numerous sections of the law, some are irrelevant and only one is relevant and enabling provisions, then that particular the application survives, and other cited irrelevant sections, are to be disregard. So the preliminary hearing partly succeeds, and I hereby disregard, Sections 95 , of the Civil Procedure Code, Cap 33 [R.E 2002] , and 14(1) of the Law of Limitation Act, Cap 89 [R.E.2002] which were cited in the Application because are irrelevant for application of this nature; But the Application survives and is maintainable because Section 93 of Cap 33 which has been cited the Application is relevant and enabling provisions. Reverting back to the merit of application, I noted the Applicant is applying for enlargement of time in which to file a Petition to challenge Arbitration Award, made by Q.S.S Likumbo, the Sole Arbitrator filed in Misc Commercial Case No 277 of 2014. Further, the Court find in Annexure P2 that, it is true on the 19/11/2014, Hon Makaramba J granted Applicant time to the Page 11 of 13 Applicant to file a Petition, and were ordered to file it on the 15/12/2014 and that, time has elapsed and melted down while they were pursuing a defective petition which was struck by this court. Also, I noted that the Applicant is contesting in the application that, there are matters which were "illegally decided" by the Arbitrator such as were "condemned unheard" , in the Final Arbitration Award. It seems to me that there are several cases decided by the Courts which has decided that once there is allegations of illegality, it is ideal to grant an extension of time to allow a party to appeal or to challenge the alleged illegality and that has been considered as "sufficient reason" for an extension of time. That is what was even emphasized in the decision in the case of Principal Secretary Ministry of Defence Versus Deuram Valambia f!992]T.L.R 185 In the said decision the Court of Appeal held that; When a point at issue is one alleging illegality of the decision, being challenged , the court has a duty , even if it means extending the time for the purpose , to ascertain the point , and if alleged illegality be established , to take appropriate measures to put the matter, and record right. Thus Applying the same principle , I am also persuaded that since there is a complaint of illegality in paragraphs 16,17 and 18 of the Applicant affidavit, it is fair and just to give an opportunity the Applicant to enlarge the time of filing a petition to challenge the said Final Award which was filed to this court. Page 12 of 13 It my view that allegations of illegality is "sufficient reason" to enable this Court to exercise its discretion vested to it under Section 93 of the Civil Procedure Code, Cap 33 and enlarge period of filing the Petition which was fixed by this court on the 19/11/2014. The above-mentioned court finding is based on the fact that it is in the interest of both parties and even this court to ensure that, the Final Arbitration Award was made in accordance with the law. Therefore, Pursuant to Section 93 of the Civil Procedure Code, Cap 33, I hereby grant the Applicant 10 days from today to file a Petition. The Application succeeds and each party to bear his own costs. at Dar es Salaam this 4th day of September, 2015 H.T.SONGORO JUDGE Delivered at Dar es Salaam this 4th day of September, 2015 H.T.SONGORO JUDGE Page 13 of 13 The Ruling was delivered in the presence of Mr. Mwitasi , Learned Senior State Attorney, and Mr Andrew Miraa, Learned Advocate holding a brief of Mr. Msafiri, Learned Advocate .