JASSIE CO LTD AND MASYL GENERAL LTD MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL COURT DIVISION)

AT PAR ES SALAAM MISC. COMMERCIAL CAUSE NO. 19883 OF 2024 IN THE MATTER OF ARBITRATION ACT [CAP. 15 R.E. 2020]

AND

IN THE MATTER OF ARBITRATION

BETWEEN JASSIE COMPANY LIMITED........................................................ PETITIONER AND MASYL GENERAL ENTERPRISES LIMITED............................. RESPONDENT

RULING Date oflast order: 16/08/2024 Date of Ruling: 23/08/2024 AGATHO, J.: Masyl General Enterprises Ltd filed a petition in a bid to register an arbitral award so as it may become a lawful decree subject of execution. The petitioner herein, Jassie & Company Limited challenges this registration and she therefore filed this current petition to that effect. On 20th June 2024, parties appeared before the Deputy Registrar. The petitioner had noted some errors in terms of arrangement of paragraphs and verification clause in her petition. She therefore prayed for amendment of the same, a prayer which was duly granted. An amended petition to challenge registration of an arbitral award was i filed on 24th of June 2024 and was served upon the respondent on 26th June 2024. Upon being served, the respondent filed a reply, accompanying it with three points of preliminary objections. The points of objection were the following: 1. The amended petition is bad in law for being out of time c/s 77(3) of the Arbitration Act, [Cap 15 R.E. 2020] and item 21 of Part III of the Law of Limitation Act [Cap 89 R.E 2019].

2. The amended petition is bad in law to have gone beyond the scope and extent of the amendment that was prayed for and authorised by the court contrary to O. VI Rule 17 of the CPC and the case of Peter Wegesa Chacha Timas & Others v North Mara Gold Mine Limited, Civil Appeal No 49 of2020 (2023) CAT at Dar es Saiaam(unreported) 3. The petitioner has lost her right to object to the registration of the Award contrary to Section 80 of the Arbitration Act. In the circumstances, the application for registration of arbitral award was subsequently put on hold, pending the determination of the petition challenging the registration of arbitral award. Hearing of Preliminary objections was conducted orally on 06/08/2024. Both parties were represented. Advocates Goodluck Temu, Anjelista Nashon and Colletha Mwambola were for the respondent and for the petitioner were Advocate Ondijo Sylvanus and Kulwa Samson Ndulila, also learned advocate. On the hearing date only Advocate Ondijo Sylvanus appear for the petitioner and Advocate Anjelista Nashon, stood for the respondent. 2 Submitting in favour of the first P.O, Angelista Nashon, stated that the amended petition is bad in law for being filed or brought out of time contrary to Section 77(3) of the Arbitration Act [Cap 15 R.E. 2020] and item 21 of part III of the Law of Limitation Act [Cap 89 R.E, 2019]. Further that the same amended petition

is bad in law for having gone beyond the scope and extent of amendment that was prayed for and ordered by this court contrary to Order VI Rule 17 of the CPC [Cap 33 R.E. 2019]. And third, the petitioner has lost her right to object the registration of the award as per Section 80 of the Arbitration Act [Cap 15 R.E. 2020]. The learned counsel explained that the petition at hand is objecting the registration of the award that was published on 15th September 2023, and which was duly communicated to the petitioner in a letter dated 25th September 2023 who responded to the said letter on 27th September 2023.Thereafter, the respondent filed the award to be registered on 13th February 2024. The petitioner was served with notice to appear and show cause on 27th March 2024. The petitioner was again served with a copy of the application for registration of the award on 2nd May 2024. Ms. Nashon further submitted that the petitioner filed her amended petition on 24th June 2024. Counting from the date the award was filed in court on 13th February 2024 up to the time the petitioner filed her amended petition on 24th June 2024, a period of four months and ten days had already lapsed. The learned counsel continued to state that alternatively, if one counted days from the date the petitioner was served with notice to 3 show cause or when she became aware of the application that is on 27th March

2024, a period of two months and 24 days had lapsed. It was her further submission that it is the position of the law that limitation of time goes to the root of the jurisdiction of the court. And since the petitioner has brought the petition out of time, it follows that the court ceases to have jurisdiction and the effect is to strike her petition out. The learned counsel moved this court to note that even though the sixty days lapsed, there is not any application for extension of time before this court. She prayed that the petition be dismissed with costs since the same is unmaintainable. The case of Civil Contractors Company Limited v Oysterlay Investment Limited, Misc. Commercial Application No. 23 of 2022 HCCD at DSM at page 14 buttressed her submission. As for the third P.O, she submitted that the petitioner lost her right to object the registration as per Section 80 of the Arbitration Act as the law requires that the petitioner objects to the registration of the award when they become aware of it or when the application was filed in court and served to them. She submitted that the petitioner being aware that the application for registration had been preferred and having been served with the same and not taking any action as per the dictates of the law, is but an admission or acceptance of registration. Objecting it after the lapse of time is but an afterthought, she

insisted. On the second P.O, Ms. Nashon stated that Order VI Rule 17 of the CPC was also flawed as the amendment prayed for by the petitioner on 20th June 2024 was not complied with, and the amendment went over 4 and above the scope allowed by the court. She specifically complained of additions found under paragraphs 1 and 2 in the petition, and further, through the amendment, the petitioner added an affidavit verifying the petition which was not there before. He said that was contrary to the order given by the court and insisted that the petition be dismissed with costs. On his side, Mr. Ondijo Sylvanus for the petitioner, submitted briefly starting with the first PO that the petition is within time. The reason why he takes this stance is that the petitioner was duly served with the application for registration of arbitral Application No. 1750 of 2024 on 2nd May 2024 and even the counsel of the respondent did make that remark on 8th of May 2024 when the parties appeared before the Acting Deputy Registrar. That was the date when the petitioner prayed to file the petition for challenging the registration of arbitral award. Short of that, there is no proof on record that they were served with the application for registration of award later than 2nd May 2024. Mr. Ondijo added that, since the time to file petition to challenge the arbitral award is 60 days from the date of service,

then both their first petition and even the amended petition were filed within time. He referred the court to the case of The Tanzania National Roads Agency v TAFISA General Enterprises Limited, Misc. Civil Application No. 39 of 2019 HC at Mbeya at pages 9-10 where the court held that the time limit starts to accrue not from the date of filing the application for registration of the arbitral award, but rather the date when the petitioner was duly notified of the existence of final arbitral award. On that similar line he submitted that since they were served with the application for registration of the arbitral award on 2nd of May 2024, 5 they were therefore within time in both the initial petition and amended petition. In alternative he stated that even if the amended petition could have been filed out time still this court should be guided by the time when the first petition was filed and not the amended. It was the counsel's submission that the case cannot be said to be time barred by the reason of an amended pleading. On this, he cited the case of Gungutala Mkoroma (suing as the Administrator of the Estate of later Mkoroam Mangalyuma Komba) v Nick Itunga and 5 Others, Land Case No. 57 of 2020, HC Land Division at DSM at page 6 paragraph 2 where the court held that if the court allowed the amending of plaint, one cannot come back and say the suit is time barred. On that

regard, he maintained that the petition to challenge registration of the award was filed within time. On the third P.O. it was his submission that since the petition is within time, then he has not lost the right to challenge the registration of the arbitral award. As for the 2nd P.O on amending beyond what was prayed for, it was Mr. Ondijo's submission that there is nothing that has been added to the amendment which is contrary to the original petition. He submitted that the amendment did not bring anything new, there was no new cause of action or new facts pleaded in the amended petition. The case of Peter Wegesa Chacha North Mara was cited to that effect. Advocate Nashon on her side rejoined her submission with the holding in the case of Tanroad v Tafisa (Supra) at page 10 that time starts to run when the petitioner becomes aware of existence or is notified about the existence of the final arbitral award. She added that 6 the petitioner has not disputed that the communication of final award was done on 25th of September 2023. She has also not disputed the fact that the petitioner responded to that letter on 27th September 2023. Further, the petitioner has not disputed the fact that the respondent filed the award in court on 13th February 2024. Neither has she disputed that she was served with notice to appear and show cause on 27th March 2024. She thus maintained that

failure to take necessary steps within the time allowed by the law makes the petition incompetent. She referred the court to Section 3 of the Law of Limitation Act that the remedy available is to dismiss the petition right away and prayed that the dismissal be with costs to the respondent. I have dispassionately considered the parties' submissions and find the issue for determination is whether the petition to challenge registration of the Arbitral award in favour of the respondent herein, Masyl General Enterprises Limited was brought within time by the petitioner, Jassie Company Limited. Chronology of the events will be of essence in order to resolve this riddle. It is clear from records and parties are at one that the final Arbitral award is of 15th September 2023. Another fact that is not in controversy is that the petitioner was served with notice to appear and show cause on why the arbitral award should not be registered on 2nd May 2024. The petitioner filed her petition to challenge registration of the award on June 7th 2024. And an amended petition was filed on 24th June 2024. Looking at the petitioner's amended petition she has not stated when she became aware of the arbitration award. In paragraph 13 of 7 the amended petition, she lamented that she was completely not notified. Interestingly, she has not said that she became aware of the arbitral award on 2nd May 2024.

The respondent in her reply to the amended petition paragraph 5.2 stated that after the award was published, she took liberty of notifying the petitioner through a letter dated 25th September 2023. The respondent replied via a letter dated 27th September 2023. The law is clear that when dealing with POs the court is not precluded from referring to the pleadings. That does not offend Mukisa Biscuits' principle. The court's view in as far as the Preliminary Objections are concerned, is that there is a key one worth to examine seriously. That is, the first PO that the petition is time barred. This is so because if the same is sustained the petition is disposed. But from the pleadings and submissions made, it is non-issue whether the time bar relates to first petition or amended petition. Without beating around the bush what the court grasped from the submission of the counsel for petitioner which referred to the case of TANROAD v TAFISA (supra) at page 10 is that time starts to run when the petitioner becomes aware of existence or is notified about the existence of the final arbitral award. Time limitation is a product of law. The first preliminary objection states that the petitioner contravened the limitation of time set under Section 77(3) of the Arbitration Act, Cap 15 R.E 2020. That Section provides as follows: "Any application or appeal shall be brought within

twenty-eight days from the date of the award or, where there has been any 8 arbitral process of appeal or review, from the date when the applicant or appellant was notified of the result of that process." That is what the cited law provides. However, before Subsection 3 to Section 77 there is subsection 1 which limits the scope of application of Section 77. It provides: 77.-(l) The provisions of this section shall apply to an application or appeal under sections 74 or 76 respectively. Looking at the petition in this case, the enabling provision of law cited is Section 75 as well as Section 37 (1) (a) (b) of the Arbitration Act, [Cap 15 R.E 2020]. Having noted that, it suffices to say that since this application does fall under neither of the sections mentioned in Section 77(3) and having found that Section 77 is not applicable in this matter, it is just to see the time limit applicable under applications falling under Section 75 of Cap 15 R.E 2020. 75-(l) A party to arbitral proceedings may, upon notice to the other parties and to the arbitral tribunal, apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the arbitral tribunal, the proceedings or the award. (2) For the purpose of this section, "serious irregularity" means an irregularity of one or more of the following kinds which the court considers has caused or is likely

to cause substantial injustice to the applicant: (a) failure by the arbitral tribunal to comply with section 37; As it can be gleaned from the quoted provision above, the cited law as it stands now, does not provide for a time limitation within which 9 a person can challenge registration of an arbitral award under provisions other than under Section 74 and 76 of Cap 15. It is for circumstances such as these, the legislature in its wisdom drafted Item 21 of Part III Law of Limitation Act, Cap 89 R.E 2019 which provides a time limitation for all applications under the Civil Procedure Code, the Magistrates' Courts Act or other written law for which no period of limitation is provided in that Act or any other written law to be sixty (60) days. The law of Limitation Act has served as a refuge to courts when facing akin situations as in the cases of The Tanzania National Roads Agency vs Tafisa General Enterprises Limited (Supra) and Kigoma/Ujiji Municipal Council v Nyakirangani Construction Limited, Misc. Commercial Cause No 239 of 2015. Another relevant case material to the matter at hand is that of Kilimanjaro Oil Company Ltd vs. Tanzania Petroleum Development Corporation, Commercial Cause No. 104 of 2018, (unreported) where this court provided as follows: "it is common ground that the time for challenging an arbitral award is 60 days and both parties agree that such time must

be reckoned from the date the award is made known to the party seeking to challenge the same..." Now having found that the limitation of time to bring an application challenging registration of an arbitral award is 60 days reckoned from the date when the award was made known/declared to the party seeking to challenge it, then the imperative question that follows is when was the petitioner in this matter made aware of the filing of proceedings for registration of the award in court? io In the case at hand, the petitioner having been served with the respondents reply to the amended petition had opportunity to react to the paragraph 5.2 which contains annexture the letter dated 25th September 2023 from the respondent notifying the petitioner about publication of the arbitral award and the respondent's reply to that letter dated 27th September 2023. Again, on his reply submission the respondent counsel has neither disputed that the communication of final award was done on 25th of September 2023, nor has he disputed the fact that the petitioner responded to that letter on 27th September 2023. The petitioner has also not disputed the fact that the respondent filed the award in court on 13th February 2024. She has equally not disputed that she was served with notice to appear and show cause on 27th March 2024. She accepts that she became aware of the matter on 2nd May 2024. It is a

principle of law that failure to challenge an averment by the opposite party means acceptance of the same. In the circumstances, it is without doubt that the petitioner became aware of the arbitral award on 25th September 2023, since the petition challenging registration of arbitral award was filed in June 2024 and the amended petition was filed on 24th June 2024, and counting from 25th September 2023 to June 2024 the sixty days' time limit had long expired even before the end of 2023. Therefore, considering Sections 80 of the Arbitration Act [Cap 15 R.E. 2020] and item 21 of part III of the Law of Limitation Act [Cap 89 R.E, 2019] the petition is indeed time barred. By virtue of Section 3 of the Law of Limitation Act [Cap 89 R.E. 2019] the petition is thus dismissed with costs for being time barred. ii I do not have to consider other POs as the time limitation PO is enough to dispose the matter. That said the petition is time barred. It is thus dismissed with costs. Order accordingly. Date: 23/08/2024 Coram: Hon. U. J. Agatho J. For Petitioner: Atubone Wilson (operations manager). For Respondent: Hillary Kweka, Advocate C/Clerk: E. Mkwizu Court: Ruling delivered today this 23rd August 2024 in the presence of Atubone Wilson, Operations Manager of the applicant, and Hillary Kweka, counsel for the respondent.

JUDGE 23/08/2024 12