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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL APPLICATION NO. 71 OF 2023 BETWEEN MINDSET TECHIES LIMITED.......................................................APPLICANT VERSUS MINISTRY OF EDUCATION AND VOCATIONAL TRAINING-ZANZIBAR........................................RESPONDENT RULING Date of Last Order: 15/04/2024 Date of Ruling: 26/06/2024 GONZI, J. By way of a letter from Upper Crust Law Chambers, signed by Litete Haji Ndungo, Advocate, dated 27th November 2023 addressed to the Hon.Registrar of this court, the Applicant applied for "filing of an Award for enforcement (Pursuant to Regulation 51(5) of the Arbitration (Rules of of Procedure) Regulations 2021." Mr.Ndungo, Advocate, stated that their client who is the Applicant herein emerged the winner in the arbitration proceedings between Mindset Techies (T) Limited (Claimant) and Ministry of Education and Vocational Training, Zanzibar (Respondent) for the proposed construction of Skills 1 Development Centre, at Makunduchi-Unguja in Zanzibar, Contract No. MOEVT/ALSD.11/W.2-LOT No.l. He attached to the letter certified copies of the award and arbitrator's letter allowing the Applicant to file the Award in Court for enforcement. Upon being summoned to show cause why the Award should not be recognized for enforcement, the Respondent raised a Preliminary Objection that: "This honourable Court has no jurisdiction to entertain this matter". The Respondent, therefore, prayed for the petition to be dismissed with costs. The Respondent was represented by Mr. Mbarouk Suleiman Othman, Principal State Attorney, from the Office of the Attorney General of Zanzibar. The Applicant was represented by Mr. Litete Haji Ndungo, learned Advocate. I thank both counsel for their useful submissions. Mr. Mbarouk Othman learned Counsel for the Respondent started his submissions by stressing on the need for the Court to ascertain that it has jurisdiction over a matter before it could proceed to entertain the same and that the court cannot proceed on the assumption that it has jurisdiction to adjudicate the case. He cited a number of authorities for this position. He 2 added that courts are the creature of statutes and their jurisdiction is purely statutory whereby parties cannot by consent confer or take away the jurisdiction of the court. The cases which Mr.Mbarouk Othman relied upon included: Fanuel Mantiri Ng'unda versus Herman M.Ng'unda, Civil Appeal No.8 of 1995, decided by the Court of Appeal of Tanzania; Michael Joachim Tumaini Ngalo versus Jitesh Jayantilal Ladwa, Civil Case No. 18 of 2021;Shyam Thanki & Others versus New Palace Hotel (1972) HCD No.97;Abdallah Ally Selemani t/a Ottawa Enterprises (1987) versus Tabata Petrol Station Co.Limited and Another, Civil Appeal No.89 of 2017 decided by the Court of Appeal of Tanzania. Mr.Othman, learned counsel for the Respondent submitted that under Article 108 of the Constitution of the United Republic of Tanzania of 1977, this Court has jurisdiction as specified in the Constitution or any other law. He argued that on the other hand the jurisdiction of the High Court of Zanzibar is as prescribed under Article 93 of the Constitution of Zanzibar of 1984 which prescribes that the High Court of Zanzibar shall have jurisdiction over non-union matters in Zanzibar. He proceeded that the phrase "any other law" in Article 108 of the Constitution of the United 3 Republic of Tanzania, includes the Arbitration Act, 2020 as cited in the letter filing this petition. He reasoned that the scope of applicability of the Arbitration Act, Cap 15 of 2020 is only Tanzania Mainland as it is clearly stipulated under Section 2 of the Arbitration Act. He argued that section 5 of the Arbitration act bars the courts from intervening on matters not provided for by the Arbitration Act. He argued that the provision of sections 2 and 5 of the Arbitration Act, Cap 15 should be given literal or plain meaning as the words therein are plain. He relied on the case of Republic versus Mwesige Geofrey and Another, Criminal Appeal No.355 of 2014 for the rule that courts must presume that statutes mean what they say and say what they mean. Mr. Othman, learned counsel, submitted that on the basis of Article 108 of the Constitution of the United Republic of Tanzania and Article 93 of the Constitution of Zanzibar, read together with section 2 and section 5 of the Arbitration Act, this Court is not vested with jurisdiction to recognize and enforce the award at hand and therefore the application before the court is misplaced and an abuse of the court process. He submitted that the territorial jurisdiction of this Court is confined only to Tanzania Mainland and that it has no jurisdiction to try issues arising from and within Zanzibar 4 despite the fact that Zanzibar is an integral part of the United Republic of Tanzania. Mr. Othman made reference to the Clauses of the Construction Contract between the parties herein. He referred to Clause 20.6.1 of the General Conditions of Contract that provides: "For the contracts with domestic contractors, arbitration with proceedings conducted in accordance with the laws of the Employer's Country." Mr. Mbarouk Othman also referred to Clause 1.32.4 of Particular Conditions of the Contract that stipulates that: Institution whose arbitration procedures shall be used: Rules and regulations published by the National Construction Council (NCC) of Tanzania. The place of arbitration shall be Unouia-Zanzibar. Based on the foregoing submissions, Mr. Othman, learned Principal State Attorney, emphatically submitted that the recognition and enforcement of the arbitral award at hand ought to have been filed in the High Court of Zanzibar which is the one clothed with jurisdiction over the matter. He substantiated this by arguing that the cause of action arose in Zanzibar, the Respondent is a Ministry of the Revolutionary Government of Zanzibar 5 and that Zanzibar has its own laws including the Arbitration Decree, Cap 25 of the Laws of Zanzibar of 1925 and the Zanzibar Commercial Court (High Court Division) Act No.9 of 2013 which provide the procedures for recognition and registration of Arbitral awards. Mr. Mbarouk Othman submitted that the seat is the legal home of arbitration and is the one that should determine which court has supervisory jurisdiction over the arbitration. He added that the law of the seat will determine the grounds on which the award can be challenged and the place where the award is deemed to have been made. He cited section 60 of the Arbitration Act, CAP 15, 2020 which provides that: ''Where the seat of arbitration is Mainland Tanzania, unless otherwise agreed by the parties, any award in the proceedings shall be treated as made in Mainland Tanzania, regardless of where it was signed, dispatched or delivered to any of the parties". Mr. Othman, learned Principal State Attorney submitted that the contextual meaning of the above section is that since the seat of arbitration in this matter was Unguja, Zanzibar regardless of where the award was signed, dispatched or delivered, the arbitral award is deemed to have been made in Zanzibar. He stressed that as the cause of action arose in Unguja, 6 Zanzibar and the execution of the contract took place in Unguja, Zanzibar then the enforcement of the arbitral award should be in the High Court of Zanzibar and thus this Court lacks jurisdiction. Mr. Mbarouk Othman, learned Counsel for the Respondent submitted that section 7(3) of the Arbitration Act cap 15 of 2020 stipulates that: Provided that the court may refuse to exercise any such power if, in the opinion of the Court, the fact that the seat of arbitration is outside Mainland Tanzania or when designated or determined the seat is likely to be outside the United Republic makes it inappropriate to do so. Mr. Othman, learned Principal State Attorney, submitted that the seat of arbitration has been designated as Unguja in the construction contract. He therefore submitted that the proper court to enforce the Arbitral Award Ois the High Court of Zanzibar. In that regard, Mr. Mbarouk Othman concluded that the court lacks jurisdiction and the application before me should be dismissed with costs for want of jurisdiction. With that, Mr. Othman, learned Principal State Attorney, emphatically ended his submissions in support of the Preliminary Objection. Mr. Litete Haji Ndungo, learned advocate for the Applicant, filed reply submissions. He submitted that the jurisdiction of this Court in Civil cases is 7 prescribed by the Judicature and Application of Laws Act, CAP 358 RE 2019 (JALA). He submitted that section 2(1) of JALA, provides that: "Save as provided hereinafter or in any other written law, expressed, the High Court shall have full jurisdiction in civil and criminal matters." Mr. Ndungo, learned advocate, submitted that under Rule 5(1) and (2) of the High Court Commercial Division Rules 2012 as amended, also is relevant when it comes to the jurisdiction of the Commercial Division of the High Court of Tanzania. Mr.Ndungo, learned advocate, submitted that the application for enforcement of the arbitral award was made under section 73(1) of the Arbitration Act, CAP 15 of 2020 and that is the law and section which give jurisdiction to this court when it comes to recognition and enforcement of arbitral awards. Hence, he submitted that the Arbitration Act, is what is among what was meant by the phrase "any other written law" in terms of section 2(1) of JALA. Mr. Litete Haji Ndungo, learned advocate, submitted that in terms of section 7(2) of the Arbitration Act, CAP 15 of 2020, the provisions of 8 sections 15 and 73 shall apply even where the seat of arbitration is outside Mainland Tanzania or no seat has been designated or determined. Mr. Ndungo, learned advocate argued that although Clause 20.6.1 GC to the contract provides that the seat of arbitration shall be in Unguja, Zanzibar the same contract under Clause 1.4.1 GC of the contract provided that the applicable laws were the laws of the United Republic of Tanzania and that is why the National Construction Council Arbitration Rules, 2002 were made applicable. He argued that the Rules provided the procedures on how to commence the arbitral proceedings, how to appoint arbitrator and to arbitrate the parties' dispute. Mr. Ndungo, learned advocate, submitted that although the contract provided that the place of arbitration would take place in Zanzibar as the seat of arbitration, under the agreement of the parties, the arbitration actually took place in Dar es Salaam and the Respondent never objected to that arrangement. Therefore, the respondent having consented for the arbitration to take place in Dar es Salaam, he is now estopped from raising grievancies. He added that the change of the seat of arbitration from Unguja Zanzibar to Dar es Salaam was lawful under Section 5(b) of the Arbitration Act, CAP 15 of 2020 which provides that parties are free to 9 agree on how their dispute shall be resolved subject to such safeguards necessary in public interest. Mr. Ndungo, learned advocate submitted that as during the initial stages the Respondent had agreed the seat of arbitration to be in Dar es Salaam instead of Unguja, Zanzibar, he cannot complain now since in terms of section 80(l)(c) of the Arbitration Act CAP15 of 2020, he has lost his right to object the validity of the award on ground of failure of the Tribunal to comply with the arbitration Agreement. He finished by submitting that under party autonomy rule enshrined under section 5 (c) of the Arbitration Act, 2020, CAP 15 of the Laws of Tanzania, the Court is precluded from going against the wishes of the parties. Mr. Ndungo, learned advocate, therefore, prayed that the preliminary objection be dismissed with costs. That marked the end of the submissions by learned counsel for both sides. The crux of the preliminary objection is that this court lacks jurisdiction to determine the present application. Several reasons were advanced by Mr. Othman, learned Principal State Attorney, and responded to by Mr. Ndungo, learned advocate. So who between the two is right? With respect, both counsel to some extent proceeded on the wrong premises, in my humble view. Perhaps I should have simply dismissed the preliminary objection io without much ado. However, parties are entitled to reasons for the decision. I am constrained, therefore, to address all the issues emanating from the submissions of the parties in respect of this preliminary objection. And before I make progress, maybe I should give well deserved credits to both counsel in this matter for unanimously reminding the court of one critically important rule. That is the need for the Court to ascertain that it has jurisdiction over a matter before it proceeds to entertain the matter. Hon. Nyarangi, J.A., of the Court of Appeal of Kenya in the case of "MV Lilian S" [1989] 1 KLR, observed that: - "'Jurisdiction is everything, without it, a Court has no power to make one more step. Where the Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction." With that preamble, I now proceed to determine the present preliminary objection raised. In essence, Mr. Mbarouk Suleiman Othman, learned Principal State Attorney from the Office of the Attorney General, Zanzibar and Mr. Litete Haji Ndungo, learned Advocate exchanged arguments in the following key areas. 11 The first area of contention was with respect to scope of applicability of the Arbitration Act, Cap 15 of 2020. Mr. Othman, learned counsel limited its applicability only to Tanzania Mainland as it is clearly stipulated under Section 2 of the Arbitration Act, 2020. He argued that as the cause of action arose in Unguja, Zanzibar and the Respondent is a Ministry of the Revolutionary Government of Zanzibar, the Arbitration Act of Tanzania mainland cannot apply. On this point, Mr. Litete Haji Ndungo, learned counsel, submitted that the jurisdiction of this Court in Civil cases is prescribed by section 2(1) of the Judicature and Application of Laws Act, CAP 358 RE 2019 (JALA) which refers to "any other written law" and it includes the Arbitration Act. The second area of contention between the learned counsel is with respect to the seat and place of arbitration. Mr. Othman, learned counsel argued that the seat of arbitration was in Unguja, in terms of Clause 20.6.1 of the General Condition of Contract and Clause 1.32.4 of Particular Conditions of the Contract. He argued that as the seat is the legal home of arbitration that determines court which has supervisory jurisdiction over the arbitration and the grounds on which the award can be challenged, the 12 present matter should have been filed in the High Court of Zanzibar at the seat of arbitration. Mr. Litete Haji Ndungo, learned counsel responded that in terms of section 7(2) of the Arbitration Act, CAP 15 of 2020, Sections 73 of the Act under which the present application has been filed, applies even where the seat of arbitration is outside Mainland Tanzania or where no seat has been designated or determined. The third area of contention between the parties is with regard to applicability of the laws of Zanzibar which prescribe the procedures for recognition and registration of Arbitral awards. Mr. Othman, learned counsel argued that Zanzibar has its own laws including the Arbitration Decree, cap 25 of the Laws of Zanzibar of 1925 and the Zanzibar Commercial Court (High Court Division) Act No.9 of 2013 which provide the procedures for recognition and registration of Arbitral awards. Mr. Ndungo, learned counsel replied that the contract provided that the applicable laws were the laws of the United Republic of Tanzania and that is why the National Construction Council Arbitration Rules, 2002 were made applicable. He added that as the respondent had consented to the arbitration proceedings taking place in Dar es Salaam, he is now estopped from 13 raising any complaints because the change of the seat of arbitration from Unguja, Zanzibar to Dar es Salaam, Tanzania Mainland, was lawful under Section 5(b) of the Arbitration Act, CAP 15 of 2020 under doctrine of party autonomy. Now, the determination of the matter is tricky. A legal paradox arises. Whereas, the Court is expected to rely on the law to arrive at its decision, the applicability of the very law is challenged. Mr. Othman is challenging the applicability of the Arbitration Act 2020 and argues that it is the laws of Zanzibar including the Arbitration Decree of Zanzibar which should apply and thereby confer jurisdiction upon the High Court of Zanzibar. Mr. Ndungo argues that it is the Arbitration Act of Tanzania Mainland that should apply. Therefore, the first exercise should be to determine which law should apply. Determination of the applicable law in arbitration is not an easy task. There is the law that governs the arbitration agreement in terms of its formation, competence of the parties, validity and its termination. There is law that governs the subject matter of the dispute that is taken to arbitration such as construction law and contract law as it was the case in the present matter. Arbitration is used for the resolution of varieties of disputes such as: technology, shipping, engineering, oil and gas 14 industries, intellectual property, construction, banking, financial services, securities transactions, real estate, insurance claims and employment grievances, among others. There is law that regulates the procedural aspects of arbitration like how to how to refer the dispute to arbitration, how to appoint the arbitral Tribunal, institution of arbitral proceedings, conduct of the arbitration and delivery of the award as well as its subsequent challenge or enforcement in domestic and foreign courts. Different categories of laws and different editions of the same legal instrument may apply to different segments and aspects of the same arbitration process. The best way to determine the applicable law is by considering the Arbitration agreement entered into by the parties in case they had chosen arty specific law to govern any particular aspect of the arbitration process. As the learned author Sunday A. Fagbemi, in his work: The Doctrine of Party Autonomy in International Commercial Arbitration: Myth or Reality? Says that: The foundation of every arbitration proceeding is the arbitration agreement. The parties' agreement constitutes a contract to refer disputes, which have arisen or may arise in future between them to arbitration. The freedom of parties to consensually execute arbitration agreement is known as the principle of party autonomy, party autonomy" is "the freedom of 15 the parties to construct their contractual relationship in the way they see fit". In other words, it all depends upon the parties themselves to arrange their arbitration agreement freely without any control. Therefore, an arbitration agreement is primarily a substantive contract between the parties to commercial arbitration. The agreement is central to arbitration proceedings. Before looking at the arbitration agreement entered into between the parties herein, it is critical also to ascertain what constitutes an arbitration agreement. Again, here there are several schools of thought. Under the doctrine of separability an arbitration agreement is that dispute resolution clause in the contract which is distinctly considered as constituting an agreement to arbitrate. It is severed from the rest of the main contract in which it is a party and deemed to be a separate agreement to arbitrate. This is the modern trend in all progressive laws that adopted the UNCITRAL Model law approach including Tanzania Mainland as it can be seen under section 10, 11 and 12 of CAP 15 of 2020. Arbitration agreement may also be taken to mean the submission agreement by which parties submit their dispute to the arbitrator upon the occurrence of the dispute. This is typical of the old model of Arbitration statutes including the Arbitration Decree of Zanzibar, CAP 25 under section 16 3 read together with Schedule II Form I thereof. A similar position prevailed in the repealed Arbitration Ordinance Cap 15 of the Laws of Tanzania. The Model Law ARTICLE 7(1) defines the arbitration agreement as: "An agreement by the parties to submit to arbitration all or certain disputeswhich have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not". The New York Convention,1958 under ARTICLE 11(1) describes an arbitration agreement in the following words" "Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration". Now, the contract for the proposed construction of Skills Development Centre, at Makunduchi - Unguja in Zanzibar, Contract No. MOEVT/ALSD.11/W.2-LOT No.l was signed in Unguja, Zanzibar. The contract itself was standard form which under Clause 20.6.1 of the General Conditions of Contract made choice of law governing the arbitration proceedings by providing that: 17 "For the contracts with domestic contractors, arbitration with proceedings conducted in accordance with the laws of the Employer's Country." (underlining supplied). Clause 1.32.4 of Particular Conditions of the Contract stipulated that: Institution whose arbitration procedures shall be used: Rules and regulations published by the National Construction Council (NCC) of Tanzania. The place of arbitration shall be Unquia-Zanzibar. (Underlining supplied). When the dispute arose between the parties herein, pursuant to the laws of Zanzibar, under the Arbitration Decree CAP 25, the parties duly complied with its provisions by negotiating and signing the Submission Agreement as required by Section 3 read together with Form No. I of Schedule II to the Arbitration Decree, CAP 25 of the Laws of Zanzibar. Reading the proceedings before the Arbitrator the following is revealed. There is Minutes of the Preliminary Meeting dated 17th December 2021. These are contained from page 121 to 125 of Volume 1: Appendices. They show a meeting held at Professor Mawenya Boardroom, Design Partnership Limited's Office on the 4th Floor, TETEX House, Pamba Road, Dar es Salaam. The meeting was attended to by Eng. SJ.Chavda the Arbitrator, Eng. 18 Thabit Kambi MD, Mindset Techies (T) Ltd, Advocate E. Ndaga Counsel for Claimant, Eng. S.AJuma from MOEVT-Respondent, Ms S.H.Suleiman Ministry of Health Zanzibar (former procurement Officer MOEVT), IM.Karibona from A.G.Chambers Zanzibar, MJ.Khamis from A.G. Chambers Zanzibar, and Michael Mayalla the Arbitrator's Assistant. The minutes of that meeting show under Agenda Item No. 6 the following: "6. AGREEMENT TO ARBITRATE (Standard Form) The Arbitrator distributed an ''Agreement to Arbitrate" Standard Form to the Parties with a request that they examine it carefully for factual accuracy so that it can be signed by each party separately after making any correction(s). Parties to revert to the Arbitrator by 31st December 2021 to enable him to reissue it with corrections." That was the first step by the parties in reaching their arbitration agreement. The next step that followed immediately is reflected in Appendix G to the Arbitral Award and its attached proceedings. This is contained at page 161 of Volume I of the Award. The Award itself and all accompanying proceedings was filed in court in four Volumes with a total of 527 pages. Appendix G is titled "the Agreement to Arbitrate" in the table of contents of Volume I. The document itself is titled: "Submission to Single Arbitrator." This document was signed by both parties as a 19 result of the implementation of Agenda Item 6 in the Minutes of the Preliminary Meeting dated 17th December 2021. I will reproduce this one- page document: "The Arbitration Act SUBMISSION TO SINGLE ARBITRATOR In the matter of the Arbitration Act, 2020 Whereas differences have arisen and are still subsisting between Mindset Techies (T) Limited (MTTL) of P.O.Box 78300 Dar es Salaam and Ministry of Education and Vocational Training, Zanzibar (MOEVT) of P.O. Box 394 Zanzibar concerning Construction of African Development Bank financed Skills Development Center at Makunduchi- Unguja (Contract No.MOEVT/ALSD.II/W.2-LOT.l) Whereas we the said Mindset Techies (T) Limited and Ministry of Education and Vocational Training, Zanzibar have agreed to refer the said matters in difference to the award of Mr. Sudhir J. Chavda, Sole Arbitrator. Now, we the said MTTL and MOEVT do hereby confirm our agreement to proceed with the arbitration with expedition as provided for under the Arbitration Act, 2020 of the Laws of Tanzania, and in conformity with the Arbitration Rules 2001 Edition of the National Construction Council of Tanzania. 20 We the said MTTL and MOEVT further undertake to promptly pay related arbitration costs upon notification to do so by the National Construction Council of P. O. Box 70039, Dar es Salaam. Dated the 15th July 2022 ............................... SGD Managing Director Mindset Techies (T) Ltd (CLAIMANT) Dated the 20th July 2022 .................... SGD The Principal Secretary Ministry of Education and Vocational Training, (Zanzibar) RESPONDENT It seems the above reproduced Submission Agreement was in conformity with the requirements of Section 3 read together with Form No. I of Schedule II to the Arbitration Decree, CAP 25 of the Laws of Zanzibar. The heading however reads the Arbitration Act not the Arbitration Decree. There is no legal requirement for parties to sign the "submission agreement" in the Arbitration Act, Cap 15, R.E 2020 of the Laws of Tanzania. Arbitration Agreement under the Arbitration Act, 2020 is understood in the form of the Arbitration Clause in a contract or any written agreement in terms of section 10, 11 and 12 of CAP 15. The requirement for submission agreement was there in the repealed Arbitration Act. Most states which adopted the UNCITRAL Model Law have 21 done away with the need for submission agreement after the occurrence of the dispute as the same may impede or frustrate the arbitration process where one of the parties does not cooperate with the other to enter into the submission agreement subsequent to the occurrence of the dispute between them whereby the parties become embittered against each other. Back to the Arbitration Agreement above reproduced, the court is now able to answer the question as to which law applied to the arbitration between the parties herein. At this stage, the question before me is not which law was supposed to apply to the arbitration between the parties herein. Before me there is an arbitral award presented for recognition and enforcement. This Ruling does not deal with any challenge to the award. This Ruling is dealing with the preliminary objection on jurisdiction of this court on the argument that the arbitration was conducted under the laws of Zanzibar and therefore the Arbitration Act, 2020 does not apply, and as such, this court lacks jurisdiction. The question therefore is which law was actually applied in the arbitration process? The Agreement to Arbitrate answers it all. The said Mindset Techies (T) Limited and Ministry of Education and Vocational Training -Zanzibar did thereby "confirm their agreement to proceed with the arbitration with expedition as provided for 22 under the Arbitration Act, 2020 of the Laws of Tanzania, and in conformity with the Arbitration Rules 2001 Edition of the National Construction Council of Tanzania. (Underlining supplied). The implications of that agreement was that both parties opted for curial law of Tanzania Mainland. The arbitration was agreed to be conducted according to the procedures under the Arbitration Act, 2020 of Tanzania and the Arbitration Rules 2001 Edition of the National Construction Council of Tanzania. Parties did not choose the substantive laws to govern their dispute because, inter alia, they had their Construction Contract at hand. That is Construction of African Development Bank financed Skills Development Center at Makunduchi-Unguja (Contract No. MOEVT/ALSD.II/W.2-LOT.1). I asked myself whether or not that agreement on choice of law was actually implemented in the course of conducting the arbitration. The arbitral proceedings before Eng.Sudhir J.Chavda, Sole Arbitrator, in this matter were truly regulated by the Arbitration Act and the Arbitration Rules of Procedure Regulations GN.No.146/2021 made under the Act. For example at page 160 of Volume 1: Appendices, the Arbitrator is shown to be conducting the arbitration pursuant to the Arbitration Act, 2020 and Rules made under it by referring to the Arbitration Rules of Procedure 23 Regulations GN.No. 146/2021 made under the Act to extend periods of time for the various events whose time had been prescribed in the Preliminary Meeting and Procedural Orders of the Arbitrator. Therefore, the argument by Mr. Othman, learned Principal State Attorney from the Attorney General's Chambers, Zanzibar, does not hold water. The Arbitration Act of Tanzania Mainland was the one applied to conduct the Arbitration and not the Arbitration Decree CAP 25 of the Laws of Zanzibar. Admittedly, the process of arbitration it seems commenced in conformity with the Arbitration Decree of Zanzibar. The Submission Agreement that constituted the Arbitration Agreement was signed in accordance with the Arbitration Decree of Zanzibar. However, both parties, by that agreement, opted for the Arbitration Act of Tanzania Mainland as the curial law of arbitration. Under the principal of party autonomy, the parties can agree freely on choice of the applicable law. The learned author Sunday Fagbemi in his work (supra) appearing in AFE BABALOLA UNIVERSITY: J. OF SUST. DEV. LAW & POLICY VOL. 6: 1: 2015 at page 226 observes that: An arbitration agreement is primarily a substantive contract between the parties to international commercial arbitration. The agreement is central to arbitration proceedings; hence, its importance has been attributed to many factors. First, it 24 reflects the party autonomy to settle their disputes through arbitration rather than the court of law....... arbitration agreement [is] a binding promise made between two or more parties to a contract to settle the present and/or future disputes through international commercial arbitration instead of dealing with them in the national courts. Thus, when parties draft an arbitration agreement, they enjoy wide freedom to construct a dispute resolution system of their choice. An arbitration agreement, therefore, derives its power from party autonomy. ... an arbitration agreement precludes judges from resolving the conflicts that the parties have agreed to submit to arbitration. Thus, once a conflict has arisen over any of the subjects included in arbitration agreement, the courts will have no jurisdiction to resolve it unless both parties expressly or tacitly agree to waive the arbitration agreement. It is therefore my finding that under the principle of party autonomy, the parties to the contract for Construction of African Development Bank financed Skills Development Center at Makunduchi-Unguja (Contract No. MOEVT/ALSD.II/W.2-LOT.1) were free to agree on the applicable law. For procedural laws they chose "the Arbitration Act, 2020 of the Laws of Tanzania, and in conformity with the Arbitration Rules 2001 Edition of the National Construction Council of Tanzania." This finding should suffice to answer the question posed by Mr. Mbarouk Suleiman Othman, learned Principal State Attorney, as to which law was 25 applied in the arbitration culminating into the arbitral award before me. Having found that it was the Arbitration Act, CAP 15 of 2020, it would automatically signify that the court has jurisdiction. But the attack on jurisdiction was also made through another angle of seat of arbitration being Unguja, Zanzibar. Therefore, there is a need to determine also the question as to where exactly was the seat of the arbitration that resulted into the present award. Fortunately, from this point onwards, I have a specific law to make reference to, the Arbitration Act, CAP 15 of the Laws of Tanzania RE 2020.1 have already made a finding that was the applicable law as parties conducted arbitration under that law. The question of a seat of arbitration is extremely critical and crucial because the seat of arbitration, unless the parties to the arbitration agree otherwise, supplies the procedural law of arbitration known as lex arbitri or curial law. On the other hand, in absence of any clear indication to the contrary in the agreement, it is the curial law which supplies the seat of arbitration. The seat of arbitration determines the nationality of the arbitral award thereby classifying it as either domestic or foreign in a particular state. The classification of the award based on its nationality, between foreign and domestic awards, in turn determines the national courts of 26 which country will have supervisory jurisdiction over the particular arbitral award. Supervisory jurisdiction of an award is exercisable by the national courts of the country where the arbitral award bears its nationality. The Courts of Tanzania have supervisory powers over arbitral awards which are not foreign awards in Tanzania. Supervisory national courts are the ones which can issue interim reliefs and play a facilitative role during the arbitration process like sanctioning parties and witnesses to attend the arbitration, granting interim or preservatory orders pending arbitration, appointing an arbitrator where there is a deadlock or unwillingness by parties to do so. When the arbitral award is ultimately made, national courts with supervisory powers are the ones in which the award can be challenged seeking orders of remittance to arbitrator for reconsideration or setting aside the award. The power of forum court, where a foreign arbitral award is sought to be enforced are limited to recognition or refusal to recognize the foreign arbitral award. What determines whether a court is supervisory or forum court, is the nationality of the arbitral award as to whether it is foreign or domestic to that court. The nationality of the arbitral award in turn is determined by the seat of arbitration. 27 I think some background legal conception is needed here before determining the issue of seat of arbitration raised by Mr. Mbarouk Suleiman Othman, learned Principal State Attorney. In his work "Determining the seat of arbitration", posted on the International Bar Association website (https://www.ibanet.org/determining-seat-of-arbitration) on Wednesday 20th December 2023, the learned author, Gagan Anand, has this to say about a seat of arbitration: One of the recently trending choices, which has been witness to a plethora of open lawsuits, is that of determining the seat of arbitration. Not to be confused with the physical place or venue, the 'seat' is predominantly referred to as the 'situs' of arbitration, owing to its consequence of governing the entire arbitral procedure or the lex arbitri.... There is a discernible difference between the terms 'seat' and 'venue', even though the same have been used and sometimes, even interpreted, interchangeably. In common parlance, while the venue or physical place of arbitration may only refer to the mere geographical location of the tribunal, the 'seat', on the other hand, is a legal concept that has a much larger impact of ascertaining the 'curial' role of the tribunal... It is necessary to reiterate that the seat is the situs and, consequently, the fundamental determining factor of the arbitral procedure. Any ambiguity in relation to the seat will thus have inadvertent effects over the rights of the parties involved. 28 According to Lexis Nexis (httDs://www.lexisnexis.co.uk/legal/glossary/seat-of- arbitration): a seat of arbitration is the jurisdiction in which an arbitration is deemed legally to take place and the award issued, regardless of the geographical location of the tribunal and/or any hearings. The seat also determines the legal system that, generally, provides the arbitration's procedure and which courts have supervisory jurisdiction over the arbitration. From the above exposition, one thing becomes apparent that Unguja Zanzibar was not chosen or agreed by parties to be the seat of arbitration rather it was agreed to be the place or venue of arbitration. Under Clause 1.32.4 of Particular Conditions of the Contract for the proposed construction of Skills Development Centre, at Makunduchi - Unguja in Zanzibar, Contract No. MOEVT/ALSD.11/W.2-LOT No.l which was signed in Unguja, Zanzibar, it was stipulated that: Institution whose arbitration procedures shall be used: Rules and regulations published by the National Construction Council (NCC) of Tanzania. The place of arbitration shall be Unguia-Zanzibar. (Underlining supplied). The above means that the arbitral proceedings or rather meetings with the arbitrator were, by agreement, supposed to be held in Unguja Zanzibar 29 without necessarily applying the Laws of Zanzibar, as parties under the doctrine of party autonomy were free to agree on choice of applicable law. Clause 1.32.4 was choice of place or venue of arbitration. The position of the law is that while the venue or physical place of arbitration may only refer to the mere geographical location of the tribunal, the 'seat', on the other hand, is a legal concept that has a much larger impact of ascertaining the 'curial' role of the tribunal that is supplying the procedural law to govern the conduct of arbitral proceedings and conferring jurisdiction to the national courts of the seat of arbitration to exercise supervisory powers over the arbitration process and the ultimate arbitral award. The argument by Mr. Mbarouk Othman, learned Principal State Attorney from the Attorney General's Chambers in Zanzibar, was premised on the misconception that Unguja Zanzibar had been designated as the seat of arbitration while it had actually been designated as the place or venue of arbitration. That argument therefore fails. However, the argument by Mr. Mbarouk Suleiman Othman, learned Principal State Attorney when put in its contextual perspective was to the effect that if the seat of arbitration was Zanzibar, the Award thereby 30 delivered would be a foreign award in Tanzania Mainland and, as such, the Courts of Tanzania Mainland, including this court, would totally lack jurisdiction over the award in question. Mr. Othman however, did not take into account the competence of this court to deal with the arbitral awards as a forum court where recognition and enforcement is sought in Tanzania Mainland even if the award is a foreign arbitral award whose seat is outside the United Republic of Tanzania or it is a domestic award whose seat of arbitration is in Tanzania but not in Tanzania Mainland; that is, where the seat of arbitration is Tanzania Zanzibar. The application before me was one seeking recognition and enforcement of the arbitral award. It was not challenging the arbitral award to have it set aside or remitted for reconsideration by the arbitrator. Like it was argued by Mr. Litete Haji Ngdungo, learned advocate, enforcement of both domestic and foreign arbitral awards is governed by sections 73 and 83 of the Arbitration Act, 2020. According to section 7 of the Arbitration Act, 2020 the provisions of section 73 of the Arbitration Act,2020 apply even where the seat of arbitration is outside Tanzania Mainland, that is meant to refer to a seat of arbitration in Tanzania Zanzibar. Section 7 of the Arbitration Act 2020 specifically extends 31 application of section 15 that deals with stay of judicial proceedings in a matter wherein there is an arbitration agreement to refer the dispute to arbitration. Also,it extends its application to Tanzania Zanzibar the provisions of section 73 that deals with enforcement of domestic arbitral awards whose seat of arbitration is not Tanzania Mainland, which means it applies where the seat is in Tanzania Zanzibar. An arbitral award whose seat of arbitration is Tanzania Zanzibar, is deemed to be domestic award in Tanzania Mainland under section 73 of the Arbitration Act, but for the purpose of "enforcement" only; not for the purposes of challenging it like seeking its remittance to the arbitrator for reconsideration or by the court setting it aside. The powers of courts of Tanzania Mainland to set aside or order remittance of the award for reconsideration by the arbitrator, in case the seat of arbitration is Tanzania Zanzibar, are not there. In my view section 73 of the Arbitration Act was enacted to carter for domestic awards in Tanzania by taking into account the inherent differential treatment by the law, between the domestic arbitral awards whose seat of arbitration is Tanzania Mainland and domestic awards whose seat of arbitration is Tanzania Zanzibar. Section 73 of the Arbitration Act regulates only domestic arbitral awards whose seat of arbitration is Tanzania Zanzibar. The words 32 used under section 7 of the Act, which extend the application section 73 to Tanzania Zanzibar are: "even where the seat of the arbitration is outside Mainland Tanzania". I construe that the phrase, in the context, inevitably refers to Tanzania Zanzibar. This construction is premised on the following reasons. Firstly, is the definition of the seat of arbitration in the Arbitration Act of Tanzania. Section 8 provides that "seat of arbitration" means the juridical seat of arbitration. This means seat of arbitration should be reckoned with the curial law or procedural law of arbitration, namely lex arbitri. In Tanzania there are only two curial laws of arbitration. These are the Arbitration Act, CAP 15 of 2020 and the Arbitration Decree CAP 25 of the Laws of Zanzibar. Now, "where the seat of the arbitration is outside Mainland Tanzania", inevitably implies that the curial law of arbitration capable of carrying the seat of arbitration and which is outside Mainland Tanzania. It is the Arbitration Decree, CAP 25 of the Laws of Zanzibar. The second reason as to why the phrase "where the seat of the arbitration is outside Mainland Tanzania" inevitably means Tanzania Zanzibar, is the meaning of a foreign arbitral award under section 3 of the Arbitration Act. It provides that: "foreign award" means an award where the juridical 33 seat of arbitration is in a territory or state other than the United Republic. This means that an arbitral award whose seat of arbitration is Zanzibar is not regarded as a foreign arbitral award in Tanzania Mainland. While that understanding would have suggested that an arbitra award whose seat of arbitration is Tanzania Zanzibar, is a domestic award, one finds, to his amazement, that in terms of section 4 of the Arbitration Act, that the arbitral awards whose seat of arbitration is in Zanzibar, are not purely domestic arbitral awards either in Tanzania Mainland. Domestic arbitration is what gives rise to a domestic arbitral award. Domestic arbitration is defined in such a way that inevitably, it has to be attached to Tanzania Mainland, amongst other prerequisites. The following words are used under section 4 of the Act: "An arbitration agreement shall be deemed to be a domestic arbitration if it provides expressly or by implication for arbitration in Mainland Tanzania..." Section 4 of the Arbitration Act, excludes arbitration in Tanzania Zanzibar from the ambit of domestic arbitration in Tanzania Mainland thereby signifying as if the awards from Tanzania Zanzibar would belong to the category of foreign arbitral awards in Tanzania Mainland. But then reading the definition of foreign arbitral award under section 3 of the Act, it is clear 34 that arbitral awards whose seat of arbitration is Tanzania Zanzibar, hence within the United Republic of Tanzania, are not considered as foreign arbitral awards either under the Arbitration Act. Therefore, Arbitral Awards with a seat in Tanzania Zanzibar are not purely ordinary domestic arbitral awards nor foreign arbitral awards in Tanzania Mainland. They belong to a category of special "hybrid domestic awards" bearing mixed features of both domestic and foreign arbitral awards at the same time. Their treatment in the Arbitration Act is special and unique. They are liminal, between and betwixt domestic arbitral awards and foreign arbitral awards. Section 73 of the Arbitration Act, CAP 15 of 2020 is therefore exclusively dedicated to these "hybrid domestic awards" whose seat of arbitration is in Tanzania Zanzibar. Over these hybrid domestic awards, the Arbitration Act, CAP 15 of 2020 gives the Courts of Mainland Tanzania very limited powers over them. The limited power of the Courts of Tanzania Mainland in respect of hybrid domestic awards whose seat of arbitration is Zanzibar, is with respect to recognizing or not recognizing the arbitral awards for enforcement in Tanzania Mainland. And the sole ground for determination of their recognition is whether or not the arbitral tribunal had substantive jurisdiction. That is all. 35 The third reason why the words "even where the seat of the arbitration is outside Mainland Tanzania/ used under section 7 of the Arbitration Act refer to Tanzania Zanzibar, is that the description "Mainland Tanzania" is relevant only in the context of the Union when distinguishing the two sides. Outside the context of the United Republic of Tanzania, there would be no need to particularize "Mainland Tanzania". The fourth reason is that if the Arbitration Act of Tanzania were to be construed as applicable to other states "even where the seat of the arbitration is outside Mainland Tanzania," it would be superimposing itself on other sovereign states something which is beyond the legislative mandate of Tanzanian Parliament. Therefore, by virtue of section 7, the provisions of section 73 of the Arbitration Act apply even where the seat of arbitration is Tanzania Zanzibar but it retains the inherent jurisdiction of the courts of Zanzibar which have supervisory powers over those awards which become really domestic there. The awards whose seat of arbitration is in Zanzibar become hybrid domestic awards in Mainland Tanzania and the courts are given limited powers of determining their enforcement based on one ground only that is lack of substantive jurisdiction by the arbitral tribunal. 36 The fifth reason is that only one ground is stipulated under section 73 of the Arbitration Act, CAP 15 of 2020. That is the ground of lack of substantive jurisdiction. On the other hand, recognition and enforcement of domestic and foreign awards is regulated by section 83 of the Arbitration Act CAP 20 and the same ground of lack of substantive jurisdiction on the part of the arbitral tribunal is applicable to both domestic and foreign awards. I reproduce the relevant portion of section 83 (1) (a)(iv) of the Arbitration Act. 83.-(l) Upon application in writing to the court, a domestic arbitral award or foreign arbitral award shall be recognised as binding and enforceable. (2) Notwithstanding subsection (1), a domestic arbitral award or foreign arbitral award shall be refused if- (a) at the request of the party against whom it is invoked, that party furnishes to court proof that- (iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration, provided that, if the decisions on matters referred to arbitration can be separated from those not so referred, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; 37 The above reproduced provision also deals with lack of substantive jurisdiction. What is the difference between section 83 and section 73 of the Arbitration Act? Is it a duplication of the law? The answer is in section 7 of the Act. Section 73 applies even where the seat of arbitration is outside Mainland Tanzania. The term "outside Mainland Tanzania" in the context refers to Tanzania Zanzibar. Hybrid domestic awards whose seat of arbitration is Zanzibar, can be enforced in Mainland Tanzania as domestic awards under section 73 of the Act but not under section 83 which is applicable for recognition and enforcement of both domestic arbitral awards whose seat of arbitration is Mainland Tanzania and foreign arbitral awards whose seat is outside the united Republic of Tanzania. In this regard, the argument by Mr.Mbarouk Suleiman Othman, learned Principal State Attorney is misconceived. The truth is that even if the award at hand had its seat in Zanzibar, still that award would have been regarded as a domestic award in Mainland Tanzania capable of being enforced under section 73 which applies even where the seat of arbitration is outside Mainland Tanzania. The only deficiency in jurisdiction would have been with regard to limited scope of powers of the court and the grounds for determining the recognition and enforcement of the hybrid domestic 38 arbitral award whose seat of arbitration is Zanzibar. The only remedy is to refuse recognition of the award and the only ground is lack of substantive jurisdiction. This feature contrasts section 73 and 83 of the Arbitration Act. This court would therefore be seized with jurisdiction in the matter at hand even if the seat of arbitration had been Unguja, Zanzibar. To wind up on the issue of seat of arbitration, it is clear that under the Arbitration Act of Tanzania CAP 15 of 2020 of the Laws of Tanzania, seat of arbitration in Tanzania is divisible and shared between Mainland Tanzania and Tanzania Zanzibar. Each side has its own curial law of arbitration capable of supplying the seat of arbitration. The resulting awards where the seat of arbitration is Mainland Tanzania or Tanzania Zanzibar, are both treated as domestic awards in Mainland Tanzania. However, the award becomes more domestic in the side where the seat of arbitration actually resided, that is either Tanzania Mainland or Tanzania Zanzibar. Arbitral awards whose seat of arbitration is Tanzania Mainland or Tanzania Zanzibar both take the nationality of Tanzania. They are domestic anywhere in the United Republic of Tanzania and are only considered as foreign in other jurisdictions outside the United Republic of Tanzania. However, the domestic arbitral awards whose seat of arbitration is Tanzania Zanzibar, are 39 given special treatment under section 73 of the Arbitration Act 2020 in that the jurisdiction of the courts in Mainland Tanzania over them is limited to issues regarding their enforcement only and on the sole ground of lack of substantive jurisdiction. Challenging of arbitral awards whose seat of arbitration is Tanzania Zanzibar, seeking their remittance for reconsideration or for their being set aside, cannot be done in the courts of Mainland Tanzania. I reproduce section 73 of the Act for ease of reference: 73.-(l) An award made by the arbitral tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court. (2) Where leave of the court is given, judgment may be entered in terms of an award. (3) Save as otherwise provided, leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the arbitral tribunal lacked substantive jurisdiction to make the award. The other, more robust grounds, for the courts in Mainland Tanzania to refuse recognition and enforcement of a domestic award whose seat of arbitration is Tanzania Mainland, or a foreign award whose seat is in a 40 foreign country, are under section 83 of the Arbitration Act. This section which however, must be read with the provisions of the entire section 7 of the Act which prohibits the compulsory application of section 83 of the Arbitration Act and the rest of the Arbitration Act to arbitration whose seat is outside Mainland Tanzania, save for the specific exceptions. The clear exceptions where the Arbitration Act can apply in arbitration whose seat is Tanzania Zanzibar are under sections 15, 51 and 73. I reproduce section 7 of the Act for ease of reference. I reproduce section 7 of the Act: 7.-(l) The provisions of this Act shall apply where the seat of the arbitration is in Mainland Tanzania. (2) Notwithstanding subsection (1), the provisions of sections 15 and 73 shall apply even where the seat of the arbitration is outside Mainland Tanzania or no seat has been designated or determined, (3) The powers conferred under sections 51 shall apply even where the seat of the arbitration is outside Mainland Tanzania or no seat has been designated or determined. Provided that, the court may refuse to exercise any such power if, in the opinion of the court, the fact that the seat of the arbitration is outside Mainland Tanzania or that when 41 designated or determined the seat is likely to be outside the United Republic makes it inappropriate to do so. (4) The court may exercise a power conferred by any provision of this Act not mentioned in subsection (2) or (3) for the purpose of supporting the arbitral process where- (a) no seat of the arbitration has been designated or determined; and (b) by reason of a connection with Mainland Tanzania the court is satisfied that it is appropriate to do so. (5) The provisions of sections 12 and 13 shall apply where the law applicable to the arbitration agreement is the law of Mainland Tanzania even where the seat of the arbitration is outside Mainland Tanzania or has not been designated or determined. In terms of section 7 of the Arbitration Act above reproduced, the following three exceptions allow application of the Arbitration Act in arbitration with its seat in Tanzania but outside Tanzania Mainland (hence Tanzania Zanzibar): (i) Section 15 of the Act which deals with stay of legal proceedings in courts pending referral to arbitration; (ii) Section 51 of the Act on facilitative role of courts of Mainland Tanzania in supporting the arbitral process in Mainland Tanzania in respect of arbitral proceedings whose seat is Tanzania Zanzibar, when the proceedings 42 are pending before the arbitrator. Such supporting role of the Courts to the Arbitral process includes (a) the taking of the evidence of witnesses; (b) the preservation of evidence; (c) making orders relating to property (d) the sale of any goods which are the subject of the proceedings; or (e) the granting of an interim injunction or the appointment of a receiver. Whereas the matters enumerated in (a) to (e) may relate to persons or properties situated in Mainland Tanzania, the seat of arbitration may be situated outside Mainland Tanzania, hence in Zanzibar. Hence the supervisory courts will be in Zanzibar and will have no territorial jurisdiction to issue necessary orders to support the arbitration process in respect of persons and properties situated in Mainland Tanzania. Therefore, resort will be had to the Courts of Mainland Tanzania under section 51 to support the arbitration process taking place with a seat in Tanzania Zanzibar. Hence under section 7 of the Arbitration Act, section 51 which provides supportive roles of the courts has been extended to apply even where the seat of arbitration is not in Mainland Tanzania (the seat is in Zanzibar. (iii) Section 73 of the Act on enforcement in Tanzania Mainland of domestic arbitral awards whose seat of arbitration is Tanzania Zanzibar. In other words section 73 applies where the seat of arbitration is in the United 43 Republic of Tanzania as a country, but the seat is not in Tanzania Mainland. Hence, as there are only two procedural legal regimes of arbitration (the curial law/lex arbitri) in Tanzania, to which the seat of arbitration can be attached, it follows that where the seat of the particular arbitration is not in Tanzania Mainland, it can alternatively and inevitably, be in Tanzania Zanzibar only. And that is the import and implications of section 73 of the Arbitration Act which regulates domestic awards whose seat of arbitration is Tanzania Zanzibar only. Section 73 of the Arbitration Act, grants powers to the Courts of Mainland Tanzania to enforce domestic arbitral awards, whose seat of arbitration is Tanzania Zanzibar. It should be noted that on the other hand that domestic arbitral awards whose seat was in Mainland Tanzania are enforced vide section 83 of the Arbitration Act which provides: 83.-(l) Upon application in writing to the court, a domestic arbitral award or foreign arbitral award shall be recognised as binding and enforceable. Another area of contention between the parties was with regard to applicability of the laws of Zanzibar which prescribe the procedures for recognition and registration of Arbitral awards. Mr. Othman, learned 44 counsel argued that Zanzibar has its own laws including the Arbitration Decree, cap 25 of the Laws of Zanzibar of 1925 and the Zanzibar Commercial Court (High Court Division) Act No.9 of 2013 which provide the procedures for recognition and registration of Arbitral awards. There are many answers to this. One, choice of the applicable law is a matter of party autonomy. In THE DOCTRINE OF PARTY AUTONOMY IN INTERNATIONAL COMMERCIAL ARBITRATION: MYTH OR REALITY? Sunday A. Fagbemi observes that: The freedom to choose the governing law is a logical extension of party autonomy to agree to submit to a favourable method of dispute resolution...few principles are more universally recognized in private international law" than the principle permitting parties to choose the governing law for their agreements. Parties are able to better control the dispute resolution process by selecting appropriate and favourable laws to apply to their dispute, and are thus able to avoid being subjected to inappropriate or unfavourable laws at a later time. It follows therefore that the parties in terms of Clause 20.6.1 of the General Conditions of Contract might have chosen the laws of Zanzibar to 45 apply while at the same time, or subsequently, the parties had chosen a seat of arbitration other than Unguja-Zanzibar. They chose curial law of Mainland Tanzania and they chose the seat to be in Mainland Tanzania. In the agreement to arbitrate which was signed subsequent to the construction contract, the parties clearly chose the Arbitration Act, 2020 as the applicable law and actually the arbitration was conducted under the Arbitration Act, 2020. Their subsequent agreement superseded the earlier agreement as expressed in the construction contract. At any rate the General Conditions of Contract could not override the Particular or Special Conditions of contract which specifically designated Unguja, Zanzibar as a place of arbitration not the seat of arbitration. There was an argument made by Mr. Mbarouk Suleiman Othman, learned Principal State Attorney, that under Article 108 of the Constitution of the United Republic of Tanzania of 1977, read together with Article 93 of the Constitution of Zanzibar of 1984, it is the High Court of Zanzibar that has jurisdiction over non-union matters in Zanzibar. This argument is misplaced in the circumstances of the present case where an arbitral award is sought to be enforced. There is no suit in this court. There is no one being sued. The proceedings were initiated by the parties voluntarily before the 46 arbitrator. If the question of jurisdiction was relevant, it should have been raised before the arbitrator who made the decision at hand in the form of award. His jurisdiction was contractual and I have shown that both parties signed the submission agreement to refer their dispute to the award of the arbitrator. No one objected to his jurisdiction. The award has been issued and filed in this court only for the purpose of its recognition and enforcement. Applications for recognition and enforcement of arbitral awards, both domestic and foreign are not suits. There is no re-hearing or redetermination of the matter on merit. Actually, if the parties had executed the award voluntarily, perhaps it would not have even landed in any court. The Court is enjoined to assist the award winner to enforce the arbitration award in his favour. In applications for enforcement of domestic arbitral awards whose seat of arbitration is Mainland Tanzania or foreign arbitral awards whose seat is outside the United Republic, the only grounds for considerations are those enumerated under Section 83 of the Arbitration Act, 2020 These grounds are a replica of treaty provisions, notably the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, 1958, and the UNCITRAL Model Law on Arbitration. Article V of the New York Convention has been domesticated in Section 47 83(2), (4) and (5) of the Tanzania Arbitration Act. In particular, recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority, where the recognition and enforcement is sought, proof that: (i) The parties to the agreement referred to in Article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; (ii) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator, or of the arbitration proceedings, or was otherwise unable to present his case; (iii) The award deals with a difference not contemplated by, or not falling within, the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration. However, if the decisions on matters submitted to arbitration can be separated from those not so 48 submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; (iv) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or (v) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. In addition, recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition and enforcement is sought finds that: (i) The subject matter of the difference is not capable of settlement by arbitration under the law of that country; or (ii) The recognition or enforcement of the award would be contrary to the public policy of that country. 49 That is a 5+2 formulation of grounds for resisting recognition and enforcement of foreign arbitral awards, under the New York Convention. The United Nations Conference on Trade and Development, Course material on Dispute Settlement, entitled: Recognition and Enforcement of Arbitral Awards: The New York Convention, UNCTAD/EDM/Misc.232/Add.37, United Nations, 2003, (www.unctad.org) at page 29 succinctly describe those grounds as follows: "The grounds prescribed in Article V may be divided into two categories: 1) those that may be invoked by the parties (Article V (1)), and 2) those that the court may invoke ex officio (Article K (2)). Whereas the first category is intended to protect the interests of the award-debtor, the second serves the vital interests of the forum country." In CBS and others v. WAK Orient Power & Light Ltd, (Decision of 12 April 2001, No. 99-2996; published in YCA, Vol. 26 (2001), p. 1120.), with regard to the public policy exception invoked by WAK, the Court found: "[TJhe public policy exception is very narrow.... The courts have held that the exception is only applicable when 'enforcement would violate the forum state's most basic notions of morality and justice" In applications for enforcement of domestic hybrid arbitral awards whose seat of arbitration is Tanzania Zanzibar, the only ground for consideration is 50 under section 73 of the Arbitration Act, 2020; that is whether or not the arbitral tribunal lacked substantive jurisdiction. Territorial jurisdiction of the High Court of the United Republic of Tanzania viz a viz the High Court of Zanzibar does not entirely remove their jurisdiction to hear the applications for recognition of arbitral awards. Whether the matter is a union matter or a non-union matter is not among the considerations in applications for recognition and enforcement of domestic or foreign arbitral awards. The place where the cause of action arose does not count in applications for recognition and enforcement of domestic or foreign arbitral awards. Actually, at the stage of enforcement, there is no dispute on the merits of the case, rather there is an award made by the arbitrator. The relevant considerations therefore are those with respect to the validity of the arbitration agreement, procedural fairness of arbitral process, jurisdiction of the arbitral tribunal, nationality of the award and the like. In other words the relevant questions for consideration at the time of enforcement are directed at the arbitration itself and not the disputes prior to arbitration. The arbitral award is final and not appealable. This is not an appeal or revision against the award. This court has jurisdiction in respect of domestic arbitral awards as well as foreign arbitral awards regardless of the 51 state whose seat the arbitral award derives its nationality, subject, of course to treaty requirements. Under section 6 of the Arbitration Act, 2020 "the court" in relation to domestic arbitration, means the District court, Resident Magistrates' Court and the High Court exercising its original jurisdiction or appellate jurisdiction or the Court of Appeal. The section reads: 6.-(l) The term "court"- (a) in relation to domestic arbitration, means the district court, resident magistrate's court, the High Court exercising its original or appellate jurisdiction or the Court of Appeal; or (b) in relation to international arbitration, means the High Court in the exercise of its ordinary original civil jurisdiction. (2) The manner of recognition and dealing with foreign arbitration in the United Republic shall be as prescribed in the respective laws governing arbitration. (3) For the purpose of subsection (l)(a), jurisdiction of court shall be in accordance with the Magistrate's Court Act and any other written laws, (emphasis added) As section 6 (3) of the Arbitration Act relies on the Magistrates Courts Act and other written laws to determine the jurisdiction of the courts in relation 52 to domestic arbitral awards in Tanzania, I looked at section 40 (3) of the Magistrates Courts Act, Cap 11 of the Laws of Tanzania which provides: "Notwithstanding subsection (2), the jurisdiction of the District Court shall, in relation to commercial cases, be iimited- (a) in proceedings for the recovery of possession of immovable property, to proceedings in which the value of the property does not exceed one hundred million shillings; and (b) in the proceedings where the subject matter is capable of being estimated at money value, to proceedings in which the value of the subject matter does not exceed seventy million shillings." The current position of the law under the Arbitration Act 2020 under section 6 thereof, is that the High Court has exclusive jurisdiction in respect of recognition and enforcement of foreign arbitral awards, that is to say whose seat is outside the United Republic of Tanzania. For the domestic arbitral awards, the District Court, Court of Resident Magistrate and the High Court, all have jurisdiction in respect of applications for their recognition and enforcement or to determine challenges in respect thereof. The jurisdiction of subordinate courts, however should be subject to rules governing their ordinary civil jurisdiction. In an attempt to differentiate between a suit and an application for recognition and enforcement of the 53 arbitral award, I read Lewis Silkin LLP, in their October 2021 online publication entitled: Enforcing arbitral awards in England & Wales. They explain what recognition and enforcement of arbitral awards entails: "The New York Convention and the Act distinguish between the recognition and enforcement of arbitral awards. As far as recognition is concerned (i.e. treating a "foreign" award as if it were a domestic award), the Act provides that an arbitration award made in the territory of a state which is a party to the New York Convention shall be recognised as binding on the parties to the arbitration. That means it can be relied on bv wav of a defence, set-off or otherwise in any legal proceedings in England and Wales. As regards enforcement (i.e. treating a "foreign" award as if it were a domestic judgment), the court may give permission for judgment to be entered in terms of the award. Where this is done, the award may be enforced in the same manner as an English court judgment, (underlining supplied)" Recognition of the award gives it the status becoming like of a decree of the Court and thereby binding the parties. On its basis, parties may raise pleas like res judicata, estoppel, set-off, issue estoppel and the like. Once an award is recognized, the next step of its enforcement as a decree of that court, follows. Section 83(1) of the Arbitration Act, Cap 15 provides that: 54 ''Upon application in writing to the court, a domestic arbitral award or foreign arbitral award shall be recognised as binding and enforceable." What is sought by the Applicant in this application is for domestic arbitral award issued by Eng.SJ.Chavda, Sole Arbitrator, between Mindset Techies (T) Limited (Claimant) and Ministry of Education and Vocational Training, Zanzibar (Respondent) for the proposed construction of Skills Development Centre, at Makunduchi-Unguja in Zanzibar, Contract No.MOEVT/ALSD.ll/W.2- LOT No.l, be recognised as binding and enforceable. The case is not starting afresh now. The case ended before the arbitrator. The current process is intended to give effect to what the arbitrator has decided. Going to arbitrator for him to determine the dispute against the Ministry of Education and Vocational Training- Zanzibar, was done voluntarily by the parties themselves, exercising party autonomy, accepting to submit to the jurisdiction of the Sole Arbitrator. Therefore, the arguments advanced by the learned counsel for the Respondent are unfounded. All in all, for the reasons stated, I do hereby dismiss the preliminary Ruling is delivered in court this 26th day of June 2024 in the presence of Mr. Mbarouk Suleiman Othman, learned Principal State Attorney from the Attorney General's Chambers-Zanzibar, for the Respondent who was accompanied by Ms. Nkamba Mshuda, learned State Attorney from the Office of Solicitor General Dar es Salaam and who was also holding brief for Mr. Litete Haji Ndungo, learned Advocate for the Applicant. A.H. GONZI * JUDGE 26/06/2024 56