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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL APPLICATION NO. 184 OF 2015 M/S LUKUMBULU INVESTMENT CO. LIMITED........................... APPLICANT VERSUS ST. ANTHONY SECONDARY SCHOOL........................................... RESPONDENT RULING Date of last Order 10/05/2024 Date of Ruling: 02/08/2024 GONZI, J. This case has a long history which is summed up succinctly by Madam Justice, Sehel, JA: in the Ruling delivered by the Court of Appeal of Tanzania on 23rd February 2024. The Ruling was in Civil Revision No.388/16 of 2022 between M/S St. Anthony Secondary School and Lukumbulu Investment Co. Ltd. In arbitration proceedings conducted by the late Chipeta,J., (rtd), the Applicant herein secured an arbitral Award against the Respondent on 3rd September,2012. The Arbitrator passed on before he could file the arbitral award in Court. In that regard Mihayo, J., (rtd)was appointed the successor arbitrator and filed the Award to the Deputy Registrar of this Court on 10th i July 2015. On 10th August, 2015 the Deputy Registrar issued a Notice to the parties to appear before the High Court on 18th August 2015 for orders. When the parties appeared before the Honorable Judge on 18th August 2015 the Respondent's learned counsel raised an objection that the Applicant was time barred to register the Arbitral Award. The Trial Judge referred the Court case file back to the Deputy Registrar to determine the legal issue raised by the learned counsel for the Respondent as to whether or not the award had been registered out of time. On 1st September, 2015, when the parties appeared before the Deputy Registrar, they were given audience and they made oral submissions on the issue of whether or not the award had been registered out of time. The Deputy Registrar after having heard the parties, formed opinion that the issue ought to have been decided by the Trial Judge, he therefore forwarded the file to the Trial Judge for determination of the issue of time limitation. The Trial Judge heard the parties' submissions orally and on 14th December 2015 delivered the decision thereby overruling the objection without assigning reasons for the decision and remitted the file to the Deputy Registrar for registration of the Award. The Deputy Registrar did nothing as he believed the jurisdiction over the matter lied with the Judge and the Judge 2 believed that the jurisdiction lied with the Deputy Registrar. There was a deadlock and no further proceedings were conducted in respect of the case. The Respondent therefore initiated revision to the Court of Appeal of Tanzania which was filed as the Civil Revision No.388/16 of 2022 whose decision was delivered on 23rd February 2024. In its Ruling under the revision, the Court of Appeal held at page 12 that: "With due respect to the learned Judge's view, we have said and reiterate here that 'the receipt of the award by the Registrar constituted the filing of the award'. No further proceedings was required to evidence the filing of the award. Besides, at page 38 of the record of the application, the Judge noted that the award was filed on 3&h November, 2015. Therefore, we find that it was highly irregular for the Judge to hold that the Court had no jurisdiction to entertain the award until it is filed and registered by the Registrar. On the contrary, the award was already filed. The Judge was therefore required, by law, to determine as to whether she should have registered the award as a decree of the Court or set it aside or remit the same for consideration by the arbitrator. There is another disturbing feature in the High Court’s ruling. As rightly argued by Mr. Luguwa, 3 after the Judge had ruled that she had nojurisdiction to entertain the award, she went ahead to overrule the objection without assigning any reason as to why she decided to overrule it. It is to be observed that the strength of any decision lies on its reasoning. Reason is the sou! and spirit of a good judicial decision without it there cannot be any valid decision. In view of that fact that, we are of the strong view that the ruling of the High Court dated 4h December, 2015 cannot be left to stand." The final orders by the Court of Appeal are found at pages 12 and 13 of the Ruling of the Court where the Court ordered that: "In the end, we find merit in the application for revision and we allow it. Consequently, we quash the proceedings of the High Court in Miscellaneous Civil Cause No. 184 of2015 from 18th August, 2015 when the error was committed by the Judge and the subsequent proceedings that followed thereafter. We set aside the ruling of 4th December, 2015 and any other orders that followed therefrom. We remit the file to the High Court and direct that the arbitration proceeding be resumed as soon as possible from the date it ended on 17th August 2015. "(emphasis added) 4 When the proceedings in this matter were resumed from the date it ended on 17th August, 2015, it was re-assigned to me as the Successor Judge and I will, therefore, proceed to determine the case from that juncture. On 10th May 2024, when the matter was called before me, Mr.Litete Haji, learned Advocate, appeared for the Applicant while Mr. Barnaba Luguwa, learned Advocate, appeared for the Respondent. Mr. Luguwa, learned Counsel, addressed the Court that when the matter was pending awaiting determination of the revision application in the Court of Appeal, they lodged a notice of Preliminary Objection before Hon. Nangela, J., who was presiding over this matter at that particular moment. He stated that the preliminary objection is on limitation of time to file the arbitral award in Court. He stated that both parties had already filed their written submissions in respect of the preliminary Objection on time limit and therefore there is a pending Ruling by this Court on that aspect which I, being the successor Judge, should determine first since it is a matter that goes to the jurisdiction of the Court. Mr. Litete Haji, learned Advocate, on the other hand, concurred with the position that there is a preliminary objection already argued by parties and which awaits determination. He added, however, that the Ruling of the Court of Appeal in the Civil Revision No.388/16 of 2022 directs that 5 proceedings should resume as from the date it ended on 17th August, 2015. Mr. Litete, Haji, learned Advocate left the matter to the Court to decide where to start from. After going through the file and reading the Ruling and Order of the Court of Appeal, I formed opinion that all the subsequent proceedings after 17th August 2015 in this file were thereby nullified by the order of the Court of Appeal in the revision proceedings. On 30th July 2024,1 summoned the learned counsel for the parties through virtual Court proceedings to address me on the way forward upon my confirmed view that there existed no lawful order in respect of which the parties filed their written submissions in respect of the preliminary objection. Mr. Barnaba Luguwa, learned Advocate, maintained his preliminary objection on time limit that this application is time barred. He prayed for leave to argue a fresh the preliminary objection by way of written submissions by each party filing fresh submissions. Mr. Litete Haji, learned Advocate, addressed the Court that it had always been his standpoint that the Order of the Court of Appeal in the revision proceedings had the effect of nullifying all records in the Court file subsequent to the Court order of 17th August 2015. He agreed with the Court that a new order of this Court is necessary to allow the learned counsel argue the preliminary objection by making written submissions. Mr. Litete Haji, 6 learned Advocate, stated further that in his opinion, since the matter has been in Court for many years since 2015, and since the arguments made by the learned counsel in their written submissions earlier on filed are the same which they can make after a fresh order is issued by this Court now for the parties to argue the preliminary objection on time limit, it is better that both counsel be allowed to adopt their prior filed written submissions as constituting the fresh submissions pursuant to my fresh order to that effect. Mr. Litete Haji, learned Advocate, submitted that such move will expedite the matter which has remained pending in Court for almost 10 years now. Mr.Luguwa, learned Advocate concurred with the prayer made by Mr. Litete Haji, learned Advocate. It was in that regard, I granted the prayer made by the learned Counsel and proceeded to dispose of the present preliminary objection on the basis of the written submissions filed by the Respondent on 11th September 2023 and Reply submissions filed by the Petitioner on 19th September 2023. There was no rejoinder submissions. The preliminary objection raised by Mr. Barnaba Luguwa, learned Advocate for the Respondent was that the present application was filed out of time and therefore this Court lacks jurisdiction to consider any matter. He 7 referred to Regulation 51(4) of the Arbitration (Rules of Procedure) Regulations GN. 146 of 2021 which provides that: "The Arbitral Tribunal shall within time limit provided for under the law of Limitation Act, at the request of any party to the Award, or any person claiming under him and upon payment of fees and charges due in respect of the arbitration and award and costs and charges of filing the Award, cause the A ward or a signed copy of it to be filed in Court and the Notice of the filing shall be given to the parties by the Arbitrator". Mr. Luguwa, learned Counsel, argued that under Item 18 of Part III of the Schedule to the Law of Limitation Act, CAP 89, the time limit for filing in Court of an award made without the intervention of the Court is six months. He submitted that the Award subject of the present application was transmitted to parties on 3rd September 2012. He argued that the six months period within which the Award was supposed to be filed in Court therefore expired on 3rd March 2013. He submitted that the former Arbitrator, Hon.Chipeta,! (rtd) passed away on 16th July 2013 at a time where the 8 Applicant was already time barred by 4 months to file the application for filing the Arbitral Award in Court. He argued therefore that death of the former Arbitrator had nothing to do with the delay by the Petitioner to file the Award in Court. Mr.Luguwa, learned Advocate, submitted that where proceedings are instituted in Court outside the prescribed time limit, the remedy is to dismiss the same under Section 3 (1) of the Law of Limitation Act, CAP 89 whether or not limitation has been set up as a defence. He insisted that the use of the word "shall" entails that it is mandatory for the Court to dismiss time barred proceedings. Mr. Barnaba Luguwa, learned Advocate, therefore, prayed for dismissal of the Award with costs. He added that by raising the preliminary objection, the Respondent is not challenging the Award but is challenging the propriety of the application which is filed in Court out of time, hence denying the Court its jurisdiction. He argued that an objection on time limit could not be raised by filing a petition in Court. He argued that there is a false overgeneralization that all objections must be by way of Petition. He argued that petitions are preferred when one is challenging propriety of the proceedings at the arbitration tribunal as well as the decision of the arbitral tribunal in terms of sections 69, and 70 of the Arbitration Act, CAP 15 of 2020. 9 Mr. Litete Haji, learned Advocate for the Applicant, replied to the submissions by Mr. Luguwa, learned Advocate. He argued that the Court has no jurisdiction to dismiss the Award as prayed by the learned Counsel for the Respondent but the Court can only dismiss the Application. With respect to the Award, Mr. Litete Haji, learned Advocate submitted that the Court under sections 74 and 75 of the Arbitration Act, can only confirm, vary, set aside, or remit the award for reconsideration by the Arbitrator. He submitted that as the Respondent's preliminary objection was praying for dismissal of the Award, this Court cannot grant a different remedy than what the Respondent asked for in his own pleadings since parties are bound by their pleadings. He cited the case of Salim Said Mtomekela versusMohamed Abdallah Mohamed, Civil Appeal No. 149 of 2019, decided by the Court of Appeal which insisted that parties are bound by their pleadings and the Court itself is bound by pleadings of the parties as they are. Mr. Litete Haji, Learned Advocate, therefore submitted that the preliminary objection be dismissed as it is misconceived as the Court has no jurisdiction to dismiss the award. He also cited James Funke Gwagilo versus Attorney General, Civil Appeal No.67 of 2001, decided by the Court of Appeal of Tanzania, for the rule that cases must be decided on the issue on record. io In alternative, Mr. Litete Haji, learned Advocate, submitted that the Award in this case was not filed out of time as submitted by the Respondent's learned Counsel and therefore the Court has jurisdiction to register, recognize and enforce the arbitral Award. Mr. Litete haji, learned Advocate, submitted that the cited provision of Item 18 of Part III of the Schedule to the Law of Limitation Act, CAP 89 refers to applications under the Civil Procedure Code with respect to arbitrations in suits while the present application was filed under the provisions of the Arbitration Act, CAP 15. Mr. Litete Haji, learned Advocate, submitted that in the event that the Court finds that the provisions of the Second Schedule to the Civil Procedure Code, apply to the present application, then Rule 20(2) of the Civil Procedure (Arbitration Rules) in the second Schedule to the Civil Procedure Code comes into play whereby it provides that: " the application shall be in writing, and shall be numbered and registered as a suit between the Applicant as the Plaintiff and the other parties as the Defendants". He submitted that under Regulation 50(1) of the GN 146 of 2021, an Arbitral Award is final and binding upon the parties and therefore, the winning party may ask assistance of the Court for its enforcement. He argued that when Regulation 50(1) of GN li 146/2021 is read together with Rule 20(2) of the Civil Procedure (Arbitration Rules) in the second Schedule to the Civil Procedure Code, which provides that an award shall be a suit, the cumulative effect is that enforcement of an Arbitral Award as a suit can be done within six years because that is the time limit for institution of suits to enforce arbitral Awards under Item 9 of Part I of the Schedule to the Law of Limitation Act, CAP 89. He argued that Item 9 of Part I of the Schedule to the Law of Limitation Act, provides that "suits to enforce Awards...6 years." Mr. Litete Haji, learned Advocate submitted that Item 9 of Part I of the Schedule to the Law of Limitation Act should be read together with section 73 of the Arbitration Act, 2020 that provides for enforcement of Arbitral Awards. He therefore, argued that as the Award in this case was issued on 3rd September 2012 and the same was filed in Court on 13th July 2015, that was within the 6 years period of limitation and, therefore, the Application at and is not time barred. Mr. Litete Haji, learned Advocate, submitted that the preliminary objection at hand was once raised before the Court verbally and on 4th December 2015, the Court as per Hon. Mansoor,J., overruled that preliminary objection thereby conclusively determining it. He argued therefore that 12 raising the same preliminary objection, by the same Respondent, for the second time, is an abuse of the Court as the Court became functus officio. Mr. Litete Haji, learned Advocate, submitted that there are 3 stages for enforcement of the Arbitral Awards in Court in terms of Regulation 51(4) of GN 146 of 2021 namely filing, registration and enforcement. He submitted that filing of the Award took place before Honourable Msumi, Deputy Registrar who also registered the Award. He argued that what remains now before the Judge, is for enforcement of the Arbitral Award as a Judgment and Decree of the Court under section 73 (1) of the Arbitration Act, 2020 and Rule 51(7) of GN 146/2021. He argued that the Respondent has raised a preliminary objection challenging registration of the Award. He submitted that the Award has already been registered by the Hon. Deputy Registrar and therefore theRespondent has missed the boat as the preliminary objection is overtaken by events. Mr. Litete Haji, learned Advocate, submitted further that if the Respondent wished to challenge the Award, the procedure was for the Respondent to file a Petition under sections 74 and 75 of the Arbitration Act, CAP 15 of 2020. As the Respondent did not file a petition to challenge the Award, Mr. Litete Haji submitted, the Respondent cannot now obstruct the 13 Applicant from enjoying the fruits of her victory in the Arbitration based on legal technicalities. He referred to the case from Nigeria in Celtel Nigeria BV versus Econet Wireless Limited and Others (CAL/895/2012) [2014] NGCA, 28 which was quoted by the Court of Appeal of Tanzania in CATIC INTERNATIONAL ENGINEERING (T) LTD VERSUS UNIVERSITY OF DAR ES SALAAM where the Court of Appeal held that: "what a Court called upon to set aside an arbitral Award has to decide is whether the arbitral award was prima fascie good or right on the face of it, not whether the reasons (whether oflaw or fact or both) given by the Arbitral Tribunal for the Award were right or sound unless the reasons form part of the Award". He backed up the above position by another decision of the Court of Appeal in Fidelity Management SA and Another versus Myriad International Holdings BV and another (2005) EWHC 1193. The learned Counsel for the Applicant concluded by arguing that the Respondent does not oppose the Award in merit that is why she has not filed a petition to challenge the Award but is relying on procedural technicalities like time limit. He prayed for dismissal of the preliminary objection with costs 14 and that the Award be pronounced as a judgment of this Court for its enforcement. After going through the record of the case and the submissions by the learned counsel for the Applicant and the Respondent, it is now opportune moment for the Court to determine the preliminary objection raised by Mr. Luguwa, learned Counsel for the Respondent. The Preliminary objection raised was that whereas Item 18 of Part III of the Schedule to the Law of Limitation Act, CAP 89 provides that the time limit for filing in Court of an Award made without the intervention of the Court is six months, the Award subject to the present application which was delivered and transmitted to parties on 3rd September 2012, was filed in Court on 15th July 2015. The objection was based on the allegation that the six months period within which the Award was supposed to be filed in Court expired on 3rd March 2013. The pertinent question for determination, from the rival submissions made by both sides in this application, is whether or not the application is time barred. Mr. Litete Haji learned Advocate raised preliminary issues to the preliminary objection. He argued that the Respondent's preliminary 15 objection should not even be considered for three reasons. The first reason is that the preliminary objection is seeking for dismissal of the Award rather than the application. Secondly, he argued that the respondent was supposed to file a petition challenging the Award rather than raising a preliminary objection. The third issue is that a similar objection was raised and overruled by the Court on 4th December 2015. The only argument out of the three preliminary issues, which I accept, is that the Respondent having raised a preliminary objection on time limit, should have prayed for dismissal of the application and not of the Award itself as the Award ought to have been specifically challenged as such. However, I disagree with Mr. Litete Haji, learned Advocate, when he argued that as the prayer in the pleading is seeking for dismissal of the Award, then even if the Court finds the Application is time barred, it should not dismiss the application as that prayer is not borne out of the Applicant's pleadings. Section 3(1) of the Law of Limitation Act CAP 89 provides that where proceedings are time barred, the Court should dismiss the same whether or not the other party has raised limitation as a defence. This means that if the matter is time barred, even if neither party prays for its dismissal, the Court is enjoined by the law, to dismiss the time barred proceedings. The issue of time limit goes to 16 jurisdiction of the Court and the Court cannot proceed with a matter over which it has no jurisdiction, simply because the parties have not prayed in their pleadings that the proceedings be dismissed for being time barred. Court proceedings in respect of a matter which is time barred, would culminate into nullity for lack of jurisdiction on the part of the Court. The same explanation answers the second preliminary issue raised by Mr. Litete Haji learned Advocate. I am of the settled view that it was not necessary for the Respondent to file a petition to challenge the Award for being filed in Court outside the prescribed time. As time limitation is a matter going to the root of jurisdiction of the Court, it could be raised at any time even orally. On the argument that the same preliminary objection was raised and overruled on 4th December 2015,1 do not accept Mr. Haji's argument. I hold that the Ruling of 4th December 2015 is part and parcel of the proceedings post 17th August, 2015 nullified by the Court of Appel. The other preliminary issue raised by Mr. Litete Haji, learned Advocate pertains to the timing of raising the preliminary objection. Mr. Litete Haji, learned Advocate, submitted that there are three steps for recognition and enforcement of the Arbitral Award namely filing, registration and enforcement. He argued that the Award has already been filed and registered in Court by the Hon. Deputy Registrar 17 and hence the Respondent has missed the boat to object against registration of the Award as that stage has already passed. I do not agree with this argument. In Louis Dreyfus Suisse SA vs Kahama Oil Mills Ltd (Misc. Commercial Cause No. 67 of 2023) [2024] TZHCComD 105 (7 June 2024), this Court observed that: "The term "filing in Court" of arbitral award is not applicable in the Arbitration Act. It is a common name only in the Arbitration Rules under the 2Pd Schedule to the CPC and the Item 18 of Part III of the Schedule to The Law ofLimitation Act. Under the machinery of the Arbitration Act, a domestic or foreign arbitral award is not simply filed in Court. An application is made seeking recognition and enforcement of the arbitral award, as a decree of the Court. This applies to both domestic as well as foreign arbitral awards. The two words are not decorations but entail a legally prescribed and detailed process which also underscores the critical role of the Court. As an arbitral award under the Arbitration Act, 2020 is not made by, or under the dose supervision of, the Court and given that some of the awards may even originate from other states where the Court in Tanzania has no jurisdiction, 18 during an application for recognition and enforcement of an award, so as to execute it, the Court must firstly recognize the award as valid and binding upon the parties, before it may allow the enforcement thereof. In the case of The Higher Education Students' Loans Board vs. Tanzania Building Works Limited (Misc. Commercial Cause No. 39 of 2022) [2023] TZHCComD 254 (3 August 2023), it was held that recognition and enforcement of arbitral awards is a staged process that involves registration of the award, recognition of the award, enforcement of the Award and execution as the would be decree of the Court.: The person in whose favour the award has been issued may only seek assistance of the Court to recognize the award without necessarily pursuing the further stage of enforcement. Lewis Silkin LLP, in their October 2021oniine publication entitled Enforcing arbitral awards in England & Wales, explain what recognition and enforcement ofarbitral awards entails: "The New York Convention and the Act distinguish between the recognition and enforcement ofarbitral 19 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 recognized as binding on the parties to the arbitration. That means it can be relied on by way 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 domesticjudgment), 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 Courtjudgment. Recognition of the award gives it the status of a decree ofthe Court and thereby binds the parties. On its basis, parties may raise pleas like res judicata, estoppel, set of a d the like. Once an award is recognized, the next step of enforcement as a decree of that Court, follows." It is in keeping consistence with the foregoing authorities that I am inclined to hold that the preliminary issue raised by Mr. Litete Haji, learned Advocate is misconceived. The present application is one for recognition and 20 enforcement of an arbitral award as a decree of this Court. Before the Court could be seized with the Award, it has to be filed or registered in Court by way of a letter or petition. The fact that the Award has been registered in Court, does not mean that it has already been recognized as binding and enforceable. The other side can challenge it. Therefore, the preliminary issue raised by Mr. Litete Haji does not hold water. I will therefore proceed to determine the preliminary objection on time limit as raised and argued. Essentially, there is no dispute between the parties in this case that the Award was delivered on 3rd September 2012 and that the same was filed or registered in Court for recognition and enforcement on 15th July 2015. This was after the lapse of over 2 years and 10 months since the Award was delivered by the Arbitrator and transmitted to the parties on the same date. The only dispute between the learned counsel is whether the arbitral Award was registered in Court on time seeking its recognition and enforcement? Mr. Barnaba Luguwa argued that in terms of Item 18 of Part III of the Schedule to the Law of Limitation Act, this application was supposed to have been brought within six months that is by 3rd March 2013. Mr.Litete Haji Ndungo submitted that Item 18 of Part III of the Schedule to the Law of Limitation Act does not apply to the current arbitration Award which was not made 21 under the Civil Procedure Code but under the Arbitration Act. He argued in alternative that in case the Court finds that the Award at hand is regulated by the Arbitration Rules of Procedure in the Second Schedule to the Civil Procedure Code, then Item 9 of Part I of the Schedule to the Law of Limitation Act prescribes 6 years as the limitation period for filing suits for enforcement of Arbitration Awards. The relevant question is what is the time limit for filing/registering in Court arbitral awards for recognition and enforcement? To this question there are multiple answers and each can be correct depending on which arbitration award one has in mind. There are several types or categories of arbitration awards under different laws and each with its own distinct procedures for enforcement. There are Arbitral Awards made under the auspices of the Commission for Mediation and Arbitration which have their own streamlined procedures and deadlines for their enforcement under the relevant labor laws. There are Arbitral awards in suits under the Arbitration Rules of Procedure as per Second Schedule to the Civil Procedure Code. These have their own procedures for challenge and enforcement and their deadlines are regulated by Item 18 of Part III of the Schedule to the Civil Procedure Code. Their time limit for filing in Court is six months. There are Arbitral Awards 22 under the Arbitration Act, CAP 15 of 2020. Their procedures of enforcement and challenge are provided in the Arbitration Act and the Regulations made under it. Their time limit is prescribed by Item 21 of Part III of the Schedule to the Law of Limitation Act, CAP 89. Their time limit for registration in Court for recognition and enforcement is 60 days. There are yet other categories of Arbitral Awards, but not relevant for the purposes of determination of the raised preliminary objection in this Ruling. The categorization between Arbitral Awards in suits made under and regulated by the Arbitration Rules of Procedure under the Second Schedule to the Civil Procedure Code and the Arbitral Awards made under or regulated by the Arbitration Act, CAP 15 of 2020 and their differential treatment, is relevant. In Louis Dreyfus Suisse SA vs Kahama Oil Mills Ltd (Wise. Commercial Cause No. 67 of 2023) [2024] TZHCComD 105 (7 June 2024), this Court observed at page 83 that: "Z hold the view that Item 18 of Part III of the Schedule to the Law of Limitation Act Cap 89 which prescribes 6 months period as the time-frame for filing in Court arbitral awards which are made in arbitration referred without the intervention of a Court, is restricted to arbitral awards emanating from arbitration proceedings regulated by the Arbitration Rules of Procedure under the Second 23 Schedule to the Civil Procedure Code, Cap 33. It does not cover applications for recognition and enforcement of domestic and or foreign arbitral awards iCourts in Tanzania where the applicable law is the Arbitration Act, 2020." Mr. Luguwa, learned Advocate argued that the time limit for filing or registering in Court the Arbitral Award under the current proceedings was six months from the date of delivery of the Award in terms of Item 18 of Part III of the Schedule to the Law of Limitation Act. I do not agree. As it was rightly argued by Mr. Litete Haji, learned Advocate for the Applicant, that provision deals exclusively with arbitral awards in suits under the provisions of the Second Schedule to the Civil Procedure Code. It does not regulate time limit for registration, recognition and enforcement of arbitral awards made under the provisions of the Arbitration Act, CAP 15 of 2020. The Arbitral Award sought to be recognized and enforced under the present application, emanates from arbitration conducted under the provisions of the Arbitration Act and not under the Second Schedule to the Civil Procedure Code. In fact, the process of registering, recognition and enforcement of arbitral awards is not applicable in the case of Arbitral Awards emanating from the provisions of the 2nd Schedule to the Civil Procedure Code which 24 are merely filed in Court and are thereby transformed into judgment and decree of the particular Court. Therefore, I reiterate that the 6 months7 time limit under Item 18 of Part III of the Schedule to the Law of Limitation Act, -CAP 89 for filing arbitral awards made without intervention of the Court, does not apply to arbitral Awards made under the provisions of the Arbitration Act, CAP 15, like the Arbitral award in the present application and whose time limit is 60 days interms of item 21 of part III of the scheduled to the Law of Limitation Act, CAP 89. After finding that the 6 months period of limitation under Item 18 of Part III of the Schedule to the Law of Limitation Act, CAP 89 does not apply in the present case, the question is what is the time limit for registration, recognition and enforcement of the arbitral awards made under the provisions of the Arbitration Act, CAP 15? Mr. Litete Haji learned Advocate, reasoned that Rule 20(2) of the Arbitration Rules of Procedure contained in the 2nd Schedule to the Civil Procedure Code which provides that the awards upon being filed shall be registered a suit, should be read together with section 73 of the Arbitration Act CAP 15 on enforcement of arbitral awards and Regulation 51 of GN 146/2021 which declares an arbitral award as final and binding to the parties. He reasoned that the cumulative effect of the 25 foregoing provisions is to make an arbitral award enforceable in Court as a suit and, therefore, it fits under Item 9 of Part I of the Schedule to the Law of Limitation Act, CAP 89. The said Item 9 of Part I of the Schedule to the Law of Limitation Act, CAP 89 provides that: 9 Suit to enforce an award six years Mr. Litete Haji, learned Advocate, submitted that the above provision of the Law of Limitation Act salvages the present Application since it was brought within the period of less than the six years. As it can be seen, the basis of reasoning by Mr. Litete Haji, learned Advocate is that the Arbitral Awards under the Arbitration Act, in terms of section 73 and Regulation 51 of the Arbitration Regulations GN 146/2021, are suits in terms of Rule 20(2) of the Arbitration Rules of Procedure in the 2nd Schedule to the Civil Procedure Code. That reasoning, however, is not without fallacy. It has already been held herein and elsewhere such as in Louis Dreyfus Suisse SA vs Kahama Oil Mills Ltd (Misc. Commercial Cause No. 67 of 2023) [2024] TZHCComD 105 (7 June 2024) that the Arbitration Awards under the Arbitration Act do not fall within the ambit of the Arbitral Awards under the 26 Arbitration Rules of Procedure under the 2nd Schedule to Civil Procedure Code, Cap 33 of the Laws of Tanzania. Rule 20(2) of the Arbitration Rules of Procedure in the 2nd Schedule to the Civil Procedure Code cannot therefore be relied upon anyhow in the present proceedings. Provisions of the 2nd Schedule to the Civil Procedure Code do not apply to Arbitral Awards made under or regulated by the Arbitration Act, CAP 15. Domestic and foreign Arbitral Awards under the Arbitration Act, CAP 15 are not enforced by way of filing a suit either, as a general rule. So, what does Item 9 of Part I of the Schedule to the Law of Limitation Act, which prescribes time limit of six years for a Suit to enforce an award, entail? Item 9 of Part I of the Schedule to the Law of Limitation Act which prescribes time limit of six years for a suit to enforce an award operates as an avenue for enforcement of foreign arbitral awards in Mainland Tanzania which emanate from foreign countries with which Tanzania has no reciprocal treaty arrangement for direct enforcement of their arbitral Awards under the machinery of the Arbitration Act. Those Awards can only be enforced in Tanzania by way of an action in the same way foreign judgments from foreign countries with which Tanzania has no reciprocal treaty arrangement for direct enforcement of their judgments under the provisions of Reciprocal 27 Enforcement of Foreign Judgments Act, CAP 8 of the Laws of Tanzania, are enforced by way of an action. That is by filing a suit based on the doctrine of obligation. In WILLOW INVESTMENT v MBOMBA NTUMBA AND ANOTHER 1996 TLR 377 (HC), it was held: "The provisions of Cap 8 were inapplicable. This however did not imply that the Court lacked jurisdiction to enforce ajudgmentgiven in Zaire. The Court's jurisdiction to enforce judgments given in foreign countries emanated from statutory law, common law and treaties. In the absence ofany such written law and treaty in relation to Zaire, judgments of that country were enforceable at common law in Tanzania on what had come to be known as the doctrine of obligation. A judgment creditor who sought to enforce a foreign judgment at common law could not do so by direct execution of the judgment: enforcement had to be sought by bringing an action on the debt." In a similar vein, therefore, there are two alternative processes by which a foreign arbitral award may be enforced in Tanzania that is firstly by direct enforcement whose procedure involves making an application for recognition and enforcement of the foreign arbitral Award under section 83 28 of the Arbitration Act. This procedure is applicable for foreign Awards originating from foreign countries with which Tanzania has reciprocal treaty arrangement for recognition and enforcement of their arbitral Awards in terms of bilateral or multilateral treaties, like the New York convention of 1958. The second avenue for enforcement of a foreign arbitral Award in Tanzania is by way of action. This applies to foreign arbitral awards emanating from foreign countries with which Tanzania has no bilateral or multilateral treaties for direct recognition and enforcement of their foreign arbitral Awards. For this kind of foreign Award, one is required to file an action (a suit) in terms of Regulation 66 of GN 146/2021. Regulation 66(1) of the Arbitration Rules of Procedures GN 146/2021 provides for the two options thus: "4 foreign award shall, subject to the provisions of the Act, be enforceable in the High Court either by Action or under the provisions ofsections 73, 83and 94 of the Act." It is my settled view therefore, that the six years' time limit under Item 9 of Part I of the Schedule to the Law of Limitation Act, CAP 89 cited by Mr. Litete Haji, learned Advocate, is intended to set time limit for filing an action or suit for enforcement of a foreign arbitral award which could not be 29 directly enforced in Tanzania. That is a foreign arbitral award emanating from a foreign state with which Tanzania has no bilateral or multilateral treaty obligation for making direct recognition and enforcement of its Arbitral Awards. Item 9 of Part I of the Schedule to the Law of Limitation Act, therefore, does not apply to direct enforcement of foreign arbitral awards under the provisions of the Arbitration Act CAP 15, 2020. It does not also apply to domestic arbitral awards of any kind in Tanzania whether under the Arbitration Act or under the provisions of the 2nd Schedule to The Civil Procedure Code. The argument by Mr. Litete Haji, learned Advocate, that the time limit to enforce the arbitral award under the present application was six years under Item 9 of Part I of the Schedule to the Law of Limitation Act read together with Section 83 of the Arbitration Act and Rule 20(2) of the 2nd Schedule to the Civil Procedure Code and Regulation 50(1) of GN 146/2021, therefore, collapses. The question remains as to which law, therefore, prescribes the time limit for making an application for recognition and enforcement of arbitral awards emanating from the provisions of the Arbitration Act? In my settled view, the time limit for filing all applications under the Arbitration Act, is 60 days according to Item 21 of Part III of the Schedule to the Law of Limitation 30 Act, CAP 89. This position was held by the Court of Appeal of Tanzania in the case of Tanzania Cotton Marketing Board versus Cogecot Cotton Company SA, Civil Appeal No.60 of 1998. The words by the Court of Appeal were thus: "Applications under the Ordinance fall under Item 21 of Part III of the First Schedule to the Law of Limitation Act, since the Ordinance itself does not provide for the period oflimitation, and the period is 60 days." The above position is backed up by yet another binding authority by the Court of Appeal of Tanzania. This is Civil Application No. 103 of 2003 In the Matter of an Intended Appeal Between Blueline Enterprises Limited Applicant and East African Development Bank. The applicant in that case had petitioned the High Court under section 7 (2) of the Arbitration Ordinance, Cap. 15 and Rule 10 of the Arbitration rules, 1957, G.N. No. 427 of 1957 and Order 23 rule 2 of the Civil Procedure Code, 1966 for the appointment of a sole arbitrator from a list submitted by the then petitioner to the respondent. The High Court appointed the sole arbitrator with like powers to act in the reference and to make an award, as if he had been appointed by consent of the parties. The Arbitrator arbitrated the dispute 31 between the parties and rendered an award. Subsequently, however, the applicant again petitioned the High Court, this time to ask the Court to set aside the award by the Sole Arbitrator. The High Court, Judge acting under section 15 of the Arbitration Ordinance, quashed the proceedings before the Sole Arbitrator and set aside his award. It was ordered that proceedings should start afresh before the alternate sole arbitrator. It is against that order that the respondent lodged an appeal to the Court of Appeal to impugn it. The position of the law then was that decisions of the High Court in the exercise of original jurisdiction under the Civil Procedure Code needed no leave before one could appeal to the Court of Appeal while decisions on proceedings under the Arbitration Ordinance needed a leave to appeal to the Court of Appeal. The Court of Appeal therefore had to consider whether the impugned proceedings while before the High Court, were governed by the Civil Procedure Code or by the Arbitration Ordinance. The Court of Appeal held at page 10 that: "So, the proceedings before Luanda, J., though a petition, were also in the broad sense a suit. But were they under the Civil Procedure Code, 1966 so that an appeal against them would be made under S. 5 (1) (a) of the Appellate Jurisdiction Act, 1979 as 32 contended by Dr. Nguiuma? It seems to me, therefore, that proceedings under the Arbitration Ordinance are governed by Rules of Court which were made under section 20 of the Ordinance and not by the Civil Procedure Code, 1966." (emphasis added) This case is therefore an authority that the Civil Procedure Code does not apply to the arbitration proceedings and awards regulated by the Arbitration Act. The Arbitration Ordinance was repealed and replaced by the Arbitration Act, 2020, but the new Arbitration Act does not provide that the provisions of the Civil Procedure Code shall apply to proceedings under it. Rather, in place of the old Arbitration Rules, new Arbitration Rules of Procedure GN 146/2021 were made. In MISC. COMMERCIAL CAUSE NO, 17 OF 2021 between MIC TANZANIA LIMITED and CRYSTAL MOBILE TANZANIA LIMITED, this Court as per Hon. B.K. PHILLIP, J., stressed at pages 10 and 11 that: "Before embarking on the discussion on the merits of this petition, I wish to point out that the advent of the Arbitration Act 2020 and its regulations (the Arbitration Rules of Procedure) Regulations 2021, has not changed the general rule as far as petitions 33 for challenging registration of Arbitral Award are concerned The phrase "Award made without the intervention of a Court" under Item 18 of Part III of the Schedule to the Law of Limitation Act did not, and does not, capture arbitral proceedings and awards made under the Arbitration Act. Item 18 of Part III of the Schedule to the Law of Limitation Act, Cap 89, in its second limb prescribes the time limit of 6 months for (Application) "Linder the Civil Procedure Code for the filing in Court of an award made in any matter referred to arbitration without the intervention of a Court'.' It follows that the reference to that phrase under Item 18 of part III of the Schedule to the Law of Limitation Act, Cap 89, relates only and exclusively to the arbitral awards made without the intervention of the Court under the provisions of the Second Schedule to the Civil Procedure Code. As the provisions of the Civil Procedure Code do not apply to arbitration proceedings and awards made under the Arbitration Act, 2020 then all applications under the Arbitration Act are not captured by Item 18 of Part III of the Schedule to the Law of Limitation Act Cap 89. The present application is one for recognition and Enforcement of an arbitral award that was made under the Arbitration Act. The time limits for proceedings under the 34 Arbitration Act, 2020 are not set by Item 18 of Part III of the Schedule to the Law of Limitation Act which deals with arbitral awards under the Second Schedule to the Civil Procedure Code only. The two types of arbitrations are very distinct in many aspects including their initiation, the roles and powers of the Court in each, the filing/ registration of the ultimate awards, the Courts with jurisdiction to entertain each, the grounds of challenging the awards for remittance or setting aside the awards, and the end result after filing/ registration as well as the appeals from that end result. The end result of the filed arbitral awards under the Arbitration Rules of Procedure in the Second Schedule to the Civil procedure Code is "judgment in a suit and Decree of the Court". That means that the arbitral award under second schedule to the CPC, ultimately, diffuses into and is absorbed by, "Judgment on award". That happens regardless of whether the arbitration was initiated by order of the Court or by the parties without the intervention of the Court. As such, subsequent to filing an award made under the provisions of the Second Schedule to the Civil Procedure Code, there will be no arbitral award in existence anymore for recognition and enforcement in a domestic or foreign jurisdiction. There will be Court's judgment on award. This is different from the Arbitral Awards under the Arbitration Act. An award under the Arbitration 35 Act once made, continues to exist until it is fully satisfied, unless it is successfully challenged. The provisions of the Arbitration Rules of procedure under the Second Schedule to the Civil Procedure Code, therefore were not meant to govern arbitration under the Arbitration Act. Even with the good intent to harmonize the two laws with respect to domestic awards, it will still be impossible to mix the application of the two regimes as they are inherently irreconcilable and not of the same species. Therefore, Item 18 of Part III of the Schedule to the Law of Limitation Act, Cap 89, exclusively and explicitly covers only arbitral awards regulated by the Second Schedule to the Civil Procedure Code. The applications under the Arbitration Act, are covered by Item 21 of Part III of the Schedule to the Law of Limitation Act, CAP. 89 and the prescribed time limit is 60 days. The present application was made beyond the 60 days period of limitation without there being a prior application for extension of time. It is hopelessly time barred. In the upshot, I uphold the preliminary objection raised by Mr. Barnaba Luguwa, learned Counsel for the Respondent. I hold that the application at hand is time- barred. In Mathew Martin versus Managing Director Kahama Mining Corporation, Civil Case No.79 of 2006 the Court held that: 36 "However unfortunate it may be for the petitioners, the Law ofLimitation on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into those who get caught in its web." The present case faces a similar doomed fate. Section 3(1) of the Law of Limitation Act provides that: "Every proceeding described in the first column of the Schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed whether or not limitation has been set up as a defence." I find that the present application for recognition and enforcement of the Final Award dated 3rd September 2012 delivered by Hon. Judge (rtd) Buxton D. Chipeta, Sole Arbitrator, between the parties herein which was filed after the lapse of the 60 days period of limitation, offended Item 21 of Part III of the Schedule to the Law of Limitation Act, CAP 89 of the Laws of Tanzania. I do hereby uphold the preliminary objection raised by Mr. Luguwa, learned Advocate for the Respondent, and dismiss the application with costs. It is so ordered. 37 A. H. GONZI z W JUDGE 02/08/2024 This Ruling is delivered in Court this 2nd day of August, 2024 before Hon. J. M. Minde Deputy Registrar, in the presence of Mr. Barnaba Luguwa, Advocate for the Respondent and in absence of the advocate for the Petitioner. J. M/MINDE DEPUTY REGISTRAR 29/07/2024 38