SOFTPAWA LTD VS NANOVAS T LTD MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO. 019565 OF 2024 SOFTPAWA LIMITED…………………………………………………………PETITIONER AND NANOVAS TANZANIA LIMITED…………………………………..1ST RESPONDENT ALEKA HOLDINGS LIMITED……………………………………….2ND RESPONDENT ALFRED CHRISTOPHER MSEMO………………………………….3RD RESPONDENT RULING Date of Last Order: 12/11/2024 Date of Ruling: 17/01/2025 GONZI, J. The Petitioner filed the present Petition seeking for recognition and enforcement of the Final Arbitral Award dated 14th June, 2024 together with the Addendum to the Final Award dated 8th July 2024, both issued by Sophie Lamb, KC, Sole Arbitrator, under the auspices of the London Court of 1 International Arbitration (LCIA). The Award was issued in favour of the Petitioner against the Respondents herein. The Petition was accompanied with an affidavit verifying the Petition which was sworn by Wilbert Basilius Kapinga,of Dar es Salaam Tanzania, a holder of Specific Power of Attorney of the Petitioner Company given under the Deed of Power of Attorney executed on 25th July 2024 before Sina Jasmine Carle, Notary Public of London, England. The Respondents raised Preliminary Objections on points of law against the Petition that: - (i) That the Petition is bad in law for contravening the mandatory provisions of Rule 63(1) (c) of the Arbitration (Rules of Procedure) Regulations GN No. 146 of 2021. (ii) That the Petition is bad in law for contravening the mandatory provisions of Rule 63(1) (d) of the Arbitration (Rules of Procedure) Regulations GN No. 146 of 2021. (iii) That the Petition is bad in law for contravening the mandatory provisions of Rule 66(5) of the Arbitration (Rules of Procedure) Regulations GN No. 146 of 2021. (iv) The petition is defective for being accompanied by a defective Power of Attorney contrary to the laws of the United Republic of Tanzania. 2 The Respondents prayed for the Petition to be dismissed with costs. At the hearing of the preliminary objections the Petitioner was represented by Mr. Mohammed Nazarrali, Learned Advocate while the Respondents were represented by Mr. Athanas Wigan, Learned Advocate. Mr. Wigan, Learned Advocate, adopted the contents of the skeleton arguments earlier on filed by the respondents and proceeded to submit starting with the 4th Preliminary Objection that the petition is defective for being supported with a defective Power of Attorney. He argued that the Power of Attorney was executed by Wilbert Basilius Kapinga, who was the authorized advocate of the petitioner. He stressed in particular that paragraph 7 of the Power of Attorney states that the powers were intended to be construed according to the laws of Tanzania. However, Mr. Wigan argued, the Laws of Tanzania are contravened by the said Power of Attorney. He submitted that there are two main arguments on this aspect. Firstly, is the fact that the attestation of the Power of Attorney was not in accordance with the manner described in the Notaries Public and Commissioners for Oaths Act, especially sections 3 and 4 wherein the persons authorized to practice as Notary Public are mentioned. He submitted that section 4(1) 3 provides that in order for a person under section 3 to be allowed to practice, he has to comply with some requirements including being a registered Advocate, paying prescribed fees and being granted certificate of practice according to the 2nd schedule. Mr. Wigan submitted that the witness in this Power of Attorney is someone who is not a Tanzanian but is an English lawyer and is not registered to practice law in Tanzania. Hence, it was argued, the witness has failed to comply with the legal requirements making the Power of Attorney hence the said Power of Attorney is defective. Mr. Wigan, Learned Advocate, referred the Court to Civil Application No.44/2016 in Millicom Tanzania versus James Allan Russells decided by the Court of Appeal of Tanzania. He submitted that in that case at page 13 it says that there must be reciprocal right to practice in Tanzania by a foreigner Practitioner before attestation before him can be valid. Mr. Wigan went on to submit that the second argument is that since the by Power of Attorney issued and executed in this case is a deed, the Power of Attorney is defective for failure to comply with the requirements of a valid deed under the laws of Tanzania. He submitted that the laws of Tanzania relating to deeds as per the Land Registration Act under section 91 provide that execution of deeds shall be by all parties required. He reasoned 4 that the Power of Attorney in this case is only executed or signed by the donor, the donee has not signed. He submitted that the Power of Attorney also violates section 39 of Companies Act since under that section a document is executed by company by affixing its common seal and that the documents should be signed by a director or secretary of the company. Mr. Wigan submitted that the Power of Attorney ought to have a company’s seal affixed, signed by two directors or a director and a secretary. He submitted that it is not the case with the Power of Attorney at hand, hence it is defective and the petition as well is defective. Mr. Wigan, Learned Counsel, embarked to address the Court on the third Preliminary Objection on contravention Rule 66(5) of Arbitration Rules GN 141/2020. He submitted that it is mandatory that the pleadings should be in accordance with section 94 of Interpretation of Laws Act, CAP 1 as amended by Misc. Amendment Act No.1 of 2021 where the said amendment makes the language of the Court Kiswahili. He argued that this makes any other language to be foreign. He submitted that Rule 4(1) (b) of Interpretation of Laws Act provides that the use of English language in Court under GN 66/2022, where a party initiates pleading in English there must be a translation thereof in Kiswahili. He submitted that the petition in Court 5 failed to comply with the cited laws. He submitted that the petition is therefore defective. He referred the Court to Civil Appeal No. 2002079 of 2022 between Hassan Kassanga versus Steven Chacha as the authority to that argument where the pleadings were struck out for failure to comply with the language of the Court. Lastly, Mr. Wigan submitted in respect of the Preliminary Objection on violation of Regulation 63(1) (c) and (d) together. He submitted that the said provisions have put a mandatory requirement for the applications or petitions to be certified by the petitioner to be true copy when making applications. He submitted that the petition herein and its annextures, being scanned copies and not the originals, do not align with the mandatory rules and that the error cannot be cured. He prayed that the petition be struck out with costs. Mr. Mohamed Nazarali, Learned Advocate, made his reply submissions. He submitted that the respondents have clearly acted in bad faith by submitting on matters not part of their skeleton arguments. He submitted that the purpose of exchanging skeleton arguments was to enable both parties to prepare for the oral hearing. He argued that the factual and legal 6 materials to be addressed in the hearing were supposed to be included in the skeleton arguments. He submitted that the Applicant’s skeleton arguments on Power of Attorney were limited to the fact that it was not notarized in accordance with section 3 and 4 of Notaries Public and Commissioners for Oaths Act. However, he argued, the Learned counsel for the Respondent submitted on aspects of deeds, the companies Act and relied on cases not part of the skeleton arguments. He prayed that the arguments made orally in Court which were beyond the scope of skeleton arguments, should be disregarded as they deny the Petitioner a fair hearing. In response to the substance of the submissions, Mr.Nazarali, Learned Advocate, started with the first Preliminary Objection on the Power of Attorney being defective. He submitted that, the case of Millicom Tanzania versus James Allan Russells cited by the Learned Counsel for the Respondent is irrelevant since it concerns an affidavit which is mandatorily required to be attested before the Commissioner for Oaths. He submitted that in the skeleton and oral arguments made by the respondents, there is no law cited for the requirement of Power of Attorney to be attested before a Commissioner for Oaths. He reasoned that the only legal guidance in respect of power of attorney is provided under Law of Contract Act under 7 section 138 which provides that an agent can be authorized expressly or impliedly. He argued that the authorization can be written or in words and that no format of authorization is prescribed. On the power of attorney contravening the requirements of the Land Registration Act on contents of deeds, Mr. Nazarali, Learned Advocate, responded that the definition of a deed in the Land Registration Act is an instrument in writing in respect of a disposition of land. He argued that the definition is, therefore, inapplicable to the current situation as this case is not a land matter and the power of attorney was not prepared for the purposes of disposition of registered land. He argued that, in that regard, the Petitioner cannot be held to have violated the Land Registration Act. On the Power of Attorney undergoing a wrong authentication process, it was submitted that the same was signed before a Notary Public authorized to practice in the United Kingdom despite stating that it is governed by laws of Tanzania. It was verified by High Commissioner of Tanzania in the UK. He argued that the Respondent’s argument is misplaced as the said Advocate Wilbert Kapinga has, under oath, stated that he is an agent of the petitioner. 8 Mr. Nazarali submitted that the Power of Attorney complied with the laws of the place it was made in the UK. On the issue of the objection petition contravening section 84A of the Interpretation of Laws Act on language use in Court, Mr. Nazarali submitted that this argument is extraneous. He argued that at any rate the Preliminary Objection raised and argued in the Respondent’s skeleton arguments was to the effect that there is a legal requirement for translation of the award. He submitted that section 84 the Interpretation of Laws Act is not applicable to the case at hand since English language is not a foreign language. He argued that the Arbitration rules are themselves drafted in the English language. He submitted that the cited sections simply change the laws of Tanzania from English to Kiswahili, it does not say that English language is a foreign language. He argued that there is no requirement for the arbitral award to be translated from English to Kiswahili language under the provisions cited. Mr. Nazarali, submitted that the rules made under the Interpretation of Laws Act, CAP 1, even allow proceedings to be conducted in English. This means that English is not a foreign language. Mr. Mohamed Nazarali, Learned Advocate, submitted, in the alternative, that if the Court holds that indeed English is a foreign language, and that the Award was to be translated into 9 Kiswahili before it could be filed in Court, the Court should find that the respondent has not suffered any prejudice and the omission does not go to the root of the matter. He reasoned that the arbitration agreement, the proceedings and the award as well as pleadings are all in English language and the respondent has always participated in Court. He submitted that the Court should uphold substantive justice. He submitted that rules of procedure are handmaiden of justice in that they should not defeat but facilitate justice. In the event the Court upholds the Preliminary Objection on the use of English language, he prayed that the Applicant be granted leave to produce a translation of the documents filed without amending the pleadings. Mr. Nazarali, Learned Advocate, concluded by responding to the first ground of objection. He submitted that the same is misplaced. He argued that the regulation 63(1) (c) and (d) of the Arbitration (Rules of Procedure) Regulations, state that the submissions, minutes, proceedings or a copy of it can be produced. He argued that this means that even the copies can be used. He argued that the Electronic Filing Rules, 2018 require that all documents should be electronically filed online. Therefore, pursuant to the law, the original authenticated award was scanned and filed online. That the 10 respondent was served with the same in accordance with the said rules and that if the Court requires the Applicant to produce the original Award in Court, the Applicant is willing to produce it. He argued further that as the documents in this case were filed electronically, there was no room for the Applicant to file the original award in Court unless directed otherwise by the Court. Mr. Nazarali, Learned Advocate, submitted that the Preliminary Objection does not stand. This is because the documents are only filed electronically these days and thus the Applicant had to file a scanned copy of the original Award. Mr. Nazarali, Learned Advocate concluded that the grounds of preliminary objections raised by the Respondent have no merit and prayed that the same be overrule with costs. Mr. Athanas Wigan, Learned Advocate, made rejoinder submissions. He started with regulation 63(1) (c) and (d) of the Arbitration Rules of Procedure Regulations GN 146/2021. He submitted that the rules require the original Award to be filed in Court. He argued that filing, a scanned document cannot be deemed as original. He submitted that the Regulations have put mandatory provisions to avoid such misconceptions. He added that what the 11 Court can ask itself is whether there are original documents filed in the online system as the same were scanned as admitted by the other side. Mr. Wigan, rejoined with respect to the third Preliminary Objection on violation of Rule 66(5) of Arbitration Rule which reads that it is the duty of the party seeking enforcing the award to produce interpretation of the award “in such manner as may be sufficient in accordance with the laws of Tanzania”. He reasoned that the phrase “such a manner” here requires the language of the Court in Tanzania which is Kiswahili to be used. He argued that the Petition and the Award should have been translated into Kiswahili. He submitted that the petition is therefore incompetent for failure to comply with this Rule as well as the other Laws relating to the use of Kiswahili language in Court. On the validity of the Power of Attorney, Mr. Wigan, Learned Advocate, submitted in rejoinder that the Power of Attorney itself says that “the applicable laws are Tanzanian laws”. That is it has to be construed according to the laws of Tanzania. He reasoned that the Petitioners have not complied with the law since all the purported compliance with the law was not in 12 accordance with the laws of Tanzania rather with the laws of England. He argued that the Power of Attorney is therefore not legitimate in Tanzania. Mr. Wigan, Learned Advocate, further reiterated his submissions in respect of a deed and companies documents. He stated that the allegations by the petitioner that some of the arguments were not captured in the skeleton arguments is irrelevant as the filing of skeleton arguments as per rule 64 of the Commercial Court Rules does not affect arguments which may be made in the course of hearing. He argued that hearing cannot be adjourned if skeleton arguments are not filed. After all, he argued, both sides are represented by lawyers hence the other side ought to have prepared himself for every possible scenario that could arise in the course of the proceedings in Court. He reiterated his prayers that the matter be struck out with costs based on the preliminary objections raised. That marked the end of the submissions by the Learned Counsel. I thank them both. I will start with the 4th Preliminary Objection that the petition is defective for being supported by a defective Power of Attorney. The Power of Attorney complained of was executed by Wilbert Basilius Kapinga, who was the authorized advocate of the petitioner. In particular paragraph 7 of 13 the Power of Attorney states that the same is to be construed according to laws of Tanzania. There are two main arguments or grounds of attack on this. Firstly, is the fact that the attestation of Power of Attorney was not in accordance with the manner described in the Notaries public and Commissioners for oaths Act especially sections 3 and 4. The witness in this Power of Attorney is someone who is not a Tanzanian but is an English lawyer and who is not registered to practice law in Tanzania hence that he has failed to comply with the legal requirements for making the Power of Attorney and thus rendering the said Power of Attorney defective. My finding on this objection is that since the Power of Attorney was made or executed in England, its validity should be subjected to the laws of the place where it was made that is it should comply with the laws of England not of Tanzania. Therefore I find the argument by Mr. Wigan, Learned Advocate,that the attestation of Power of Attorney was supposed to be in accordance with the manner prescribed under sections 3 and 4 of the Notaries Public and Commissioners for Oaths Act of Tanzania, to be untenable. I am of the considered view that Mr. Wigan has misconceived the wording of paragraph 7 of the Power of Attorney which states that the Power of Attorney is to be construed according to the laws of Tanzania. That 14 paragraph being a component of the said Power of Attorney regulates the substantive provisions of the Power of Attorney not the procedure for the making of the said Power of Attorney. Being a component of the Power of Attorney, it presupposes that the said Power of Attorney is valid before reliance on paragraph 7 can be made. Paragraph 7 of the Power of Attorney, being a component of the said Power of Attorney, cannot be relied upon to determine validity of the same Power of Attorney. The procedures for the making a valid Power of Attorney is a question of the applicable Law, not an agreement of the parties making the Power of Attorney. Once there is a valid Power of Attorney under the law of the place it was made, then only can the parties enforce the provisions thereof including paragraph 7 of the Power of Attorney. Thus Mr. Wigan’s argument does not hold water. Whether the Power of Attorney in this case followed all the required legal processes under the laws of the place it was made, would be the relevant question but which Mr.Wigan did not address at all. At any rate, it is a matter that needs evidence and hence not capable of being resolved as a Preliminary objection. The second ground of attack to the Power of Attorney was that the Power of Attorney is defective for failure to comply with the requirements of a valid deed under section 91 of the Land Registration Act, CAP 334 and 15 section 39 of the Companies Act for the same not being signed by two persons, the donor and the done and for not having a company seal affixed, signed by two directors or a director and a secretary. The answer to this ground of attack is the same as above. The Power of Attorney was executed in England according to the Laws of England. Mr. Wigan, Learned Advocate, is erroneously assessing legal conformity of the same under the laws of Tanzania. For the Power of Attorney executed in England or any other foreign country to be brought and used in Tanzania, it must firstly have been validly made in accordance with the applicable laws of that foreign country. Mr.Wigan, Learned Advocate has not even argued, let alone proving that the Power of Attorney in this case did not comply with the legal requirements of the country where it was made. I took trouble to read the Power of Attorney itself and its accompanying Certificate of Notarization by the Notary Public. It reads, in part: “THAT the said SIMON JOHN HAY is duly authorised to sign the said annexed power of attorney for and on behalf of the Company pursuant to a Resolution of the Board of Directors of the said Company dated 22nd July 2024, a copy of which was produced to 16 me this day; AND THAT the said annexed power of attorney, being signed and attested, is validly executed by and binding on the Company in accordance with the relevant provisions of the law of England and Wales relating to companies. IN TESTIMONY WHEREOF I have hereunto set my hand and affixed my seal of office in the city of London aforesaid, this twenty-fifth day of July in the year Two thousand and twenty-four. SINA JASMIN CARLE Notary Public of London, England” The above certification was also, in turn, certified by the High Commission of Tanzania in London, the UK where the Government Seal is affixed alongside the signature and names of the High Commission’s Officer “Odilo A. Fidelis,” dated 9th August 2024. Looking at the above excerpt of the Certificate of Notarization made by the Notary Public who attested the Power of Attorney, the same was executed pursuant to the relevant provisions of the law of England and Wales. It is inconceivable that Mr. Wigan, Learned Advocate embarked upon challenging the validity of the said 17 Power of Attorney for not being compatible with the Land Registration Act, CAP 334 of the Laws of Tanzania which under section 2(1) thereof explicitly provides that it governs deeds which are instruments in writing whereby a disposition is, or is intended to be, effected. It is totally inapplicable to the Power of Attorney made in a foreign country granting a person powers to sign an affidavit verifying a petition for filing in Court seeking recognition of a foreign Arbitral Award. The argument by Mr. Wigan, Learned Advocate, is therefore baseless. Mr. Wigan, Learned Advocate referred this Court to the decision in Millicom’s case (supra) where at page 13 it was stated that: “Reading from the provisions of section 4 of Cap. 12 of the Tanzanian laws, much as Mr. Robert Scott Kerss is qualified to practice in England as Notary Public and Commissioner for Oath, he has no reciprocal rights to practice automatically in that capacity in Tanzania. He has to comply first with the provisions of section 4(1) of Cap. 12 by seeking a practicing certificate from the Registrar of the High Court and upon signing the Roll of advocate and payment of the requisite fees. It is only after complying with that requirement of the law that Mr. 18 Robert Scott Kerss will have the status to practice as Notary Public and Commissioner for Oaths under the Tanzania laws.” Now, that case is distinguishable from the case at hand since it prohibited to practice as a Notary Public in Tanzania, an Advocate based in England, without complying first with the provisions of section 4(1) of CAP. 12 by seeking a practicing certificate from the Registrar of the High Court, signing the Roll of advocate and paying the requisite fees. The present case, on the other hand, is on applicability in Tanzania of a power of Attorney duly and wholly executed in England, by a Notary Public allowed to practice as such in England under the Laws of England. These are two different matters. In the case at hand the “practice” as Notary Public was wholly done outside Tanzania. The term “practice as a notary public" in terms of section 2 of the Notaries Public and Commissioners For Oaths Act, CAP 12 of the Laws of Tanzania means to: “perform, mutatis mutandis, the functions and duties commonly performed by a notary public in England.” (underlining supplied) In line with section 2 of CAP 12, therefore, I understand the rule in Millicom’s case above to be that a Notary Public qualified to practice in England as a 19 Notary Public and Commissioner for Oaths, has no automatic reciprocal rights to perform in Tanzania, mutatis mutandis, the functions and duties commonly performed by a notary public in England. He has to comply first with the provisions of section 4(1) of CAP. 12 by seeking a practicing certificate from the Registrar of the High Court and sign the Roll of advocates and pay the requisite fees. The Notary Public in this case who notarized the Power of Attorney, SINA JASMIN CARLE, Notary Public of London, England has not performed and is not seeking to perform in Tanzania, the functions and duties commonly performed by a notary public in England, by virtue of being a person entitled to practise as a notary public in England, Scotland, Northern Ireland or the Republic of Ireland. She has already performed the functions and duties commonly performed by a notary public in England, within England where she is allowed to practice as such and the final, duly executed document, in the form of Power of Attorney, exists. The Power of Attorney itself was not filed in this Court for any purpose. It was relied or acted upon by Wilbert Basilius Kapinga, the donee of the Power of Attorney, even before filing the present petition, to swear an affidavit verifying the Petition. The Affidavit verifying the Petition is the one that was ultimately filed in this Court alongside the Petition seeking recognition and Enforcement of the Arbitral Award. The Power of Attorney itself was merely attached as annexture 6 to the Petition alongside other annextures including the Final Arbitral Award; the Addendum to the Final Award; Proceedings or Minutes of the Arbitration; the Arbitration Agreement and other annextures required under the Arbitration Regulations. It is for all these reasons that I find the Preliminary Objection raised by Mr. Wigan, Learned Advocate for the 20 Respondents, that the Power of Attorney is defective, is totally misplaced. I will now turn to the preliminary objection that the Petition is bad in law for contravening the mandatory provisions of Rule 66(5) of the Arbitration (Rules of Procedure) Regulations GN No. 146 of 2021. Both the Petition and the Award were attacked for not being translated from English to Kiswahili Language. Mr. Wigan was of the view that this was a contravention to Rule 66(5) of the Arbitration (Rules of Procedure) Regulations GN No. 146 of 2021 read together with section 84 of the Interpretation of Laws Act CAP 1 as amended by Misc. Laws Amendment Act, Act No.1 of 2021 where the said amendment makes the language of the Court to be Kiswahili. The said Regulation 66(5) of the Arbitration (Rules of Procedure) Regulations GN No. 146 of 2021, regulates enforcement of foreign awards. Quoting from Regulation 66(4), it provides: 66. (4) The party seeking to enforce a foreign award must produce— (a) The original award or its copy duly authenticated in the manner required by the law of the country in which it was made; (b) Evidence proving that the award has become final; and 21 (c) Such evidence as may be necessary to prove that the award is a foreign award and that the conditions mentioned in sub-regulations (4) herein are satisfied. (5) In any case where any document required to be produced under sub-regulation (4) of this regulation is in a foreign language, it shall be the duty of the party seeking to enforce the award to produce a translation certified as correct by a diplomatic or consular agent of the country to which that party belongs, or certified as correct in such other manner as may be sufficient according to the laws of Tanzania. Mr. Wigan, Learned Advocate, was of the view that since the language of the Court in Tanzania is Kiswahili and since the Arbitral Award in this petition is written in English Language, then the Arbitral Award should be deemed to have been written in a foreign language and thus it could not have been filed in Court without its firstly being translated in Kiswahili Language. Also, he was of the view that the Petition itself being brought in English language without a corresponding Kiswahili translation thereof, is defective. Now, the Arbitration (Rules of Procedure) Regulations GN. No.146/2021 do not define what a “foreign language” means. However, 22 reading contextually, it follows that a foreign language in the context of the Arbitration (Rules of Procedure) Regulations GN. No.146/2021, is a language which is foreign to Tanzania and which is other than the English Language. Regulation 66(5) of the of the Arbitration (Rules of Procedure) Regulations GN No. 146 of 2021 does not only require an award in a foreign language to be translated, it adds that: “It shall be the duty of the party seeking to enforce the award to produce a translation certified as correct by a diplomatic or consular agent of the country to which that party belongs, or certified as correct in such other manner as may be sufficient according to the laws of Tanzania.” Reading through the above provision, it is clear that the “foreign language” envisaged was one which is not commonly used in Tanzania such that not only was its translation necessary, but also the accuracy of its translation was to be endorsed by a diplomatic or consular agent of the country to which that party belongs. I cannot be made to accept the argument that the translation envisaged by that Rule was translation of the Award from English language to Kiswahili Language as Mr. Wigan, Learned Counsel would want this Court to believe. I cannot see the logic if, in this 23 case, for example, the Award for use in this Court were to be translated into Kiswahili from English Language and then the translation thereof had to be certified by the British High Commission in Tanzania that the Kiswahili translation of the Award from its original English language was correct. Clearly, that was not the intention of Rule 66(5) of the Arbitration (Rules of Procedure) Regulations GN. No.146/2021. To underscore the porosity of the argument advanced by Mr.Wigan, Learned Counsel, if his interpretation of Rule 66(5) of the Arbitration (Rules of Procedure) Regulations, 2021 were to be accepted, what would happen with regard to the domestic arbitral awards written in English Language in conformity with the relevant institutional rules of arbitration where the Award winners sough to apply to Courts for their recognition and enforcement locally in Tanzania or for challenges thereto? The intention of Rule 66(5) of the Arbitration (Rules of Procedure) Regulations, 2021 was to have the Arbitral Awards which are written in other foreign languages apart from English, be translated from the other foreign languages into English language. From yet another angle, it would be an absurdity to treat an Arbitral Award written in English Language as written in a “foreign language” for the purposes of the Arbitration (Rules of Procedure) Regulations 2021, and 24 require a translation thereof, while the very Arbitration (Rules of Procedure) Regulations GN No. 146 of 2021 themselves are written in English language! In my view, the requirement for translation of an Award written in a foreign language, was intended to enable the Court to understand the content of the Award being scrutinized for recognition and enforcement or challenge in Court. Therefore, it would not be logical to argue that an Award written in English Language is written in foreign language as to require its being translated before it could be filed in Court seeking its recognition and enforcement. Mr. Wigan, Learned Counsel, argued with respect to the language issue from yet another angle. He attacked the pleadings used to initiate the present Petition for being written in English language instead of Kiswahili language and without there being a corresponding Kiswahili version thereof. He relied on Rule 66(5) of the Arbitration Rules of Procedure Regulations GN. No.141/2021 when read together with section 84A of the Interpretation of Laws Act CAP 1 as amended by Misc. Laws Amendment Act, Act No.1 of 2021 which makes the language of the Court to be Kiswahili. I understood his preliminary point of objection to be that the Petitioner used English language in drafting the filed pleadings (Petition) without filing the 25 translation of those pleadings in Kiswahili language contrary to the provisions of Rule 4(1) (a) & (b) of the Interpretation of Laws (Use of English Language in Courts) (Circumstances and Conditions) Rules, 2022, GN No. 66 of 2022 and section 84A of the Interpretation of Laws Act. Rule 4 provides that: “4.-(1) A party who intends to initiate proceedings which, in his opinion, falls under the circumstances where the proceedings and decision thereto are to be conducted in English language, such party shall- (a) file his pleadings in English language with their corresponding translation in Kiswahili language; and (b) state the grounds upon which he relies to have the proceedings conducted in English language. (2) The Court may, upon receiving the pleadings filed pursuant to subrule (1)- (a) admit the case and direct that the proceedings and decision thereto shall be conducted in English language; or (b) reject the case and direct a party filing it to file his pleadings in Kiswahili language. (3) The decision under subrule (2) shall be final.” 26 Now, as regards, translation of the Award into Kiswahili Language, as it has already been shown above, clearly the requirement is not there. An Award is not a pleading. What remains now is on the alleged requirement for the Petition to be in Kiswahili language or filing its translated copy in Kiswahili Language. This Court was faced with a similar objection in GG Refinery Ltd vs Ro Water SA (PTY) Ltd (Commercial Case No. 5223 of 2024) [2024] TZHCComD 191 (9 August 2024). In its Ruling (as per Hon.Morris,J.), this Court held that: “I am in accord with the plaintiff’s counsel that, the omission is neither fatal nor has it prejudiced to the defendant. The procedure of pleadings in this Court is specifically governed by the Commercial Court Rules. Likewise, even if it were to be otherwise, the schedule made under section 3 of the Rules, provides that the matters involving “finance and monetary affairs” are within the ambits of conditions for the use of English language. Moreover, in my view, the defendant should have exhibited to this Court how the omission has caused prejudice on his part. In 27 fact, manifestly the defendant is not prejudiced by the English version of the plaint. I will give a couple of points to account for such position. One, he is under the legal representation; and two, his WSD is also in English language. Three, the annexures appended to the pleadings upon which the case is hinged are all in English. It thus defeats logic if only the documents to be translated are the pleadings and no equal scale of compulsion to have the translated version of the annexures.” I fully subscribe to the above holding and I stand by that decision for the same reasons. On the basis thereof, I dismiss the preliminary objection raised by Mr. Wigan, Learned Advocate for the Respondents on the pleadings violating the requirement of language of the Court. Finally, on the Preliminary Objection alleging violation of Regulation 63(1) (c) and (d) of the Arbitration (Rules of Procedure) Regulations, GN.No.146/2021. It was argued by the Learned Counsel for the Respondents that the said provisions put a mandatory requirement for the applications or petitions to be accompanied by the original award of a copy thereof certified by the petitioner to be true copy when making applications. Mr. Wigan 28 submitted that as the present Petition was filed online, no original or certified copies of the Arbitral Award and other attached documents were properly brought to Court since all the documents were scanned and filed online. The said regulation 63(1) of the Arbitration (Rules of Procedure) Regulations, GN.No.146/2021 provides that 63. Mode of applications to Court: (1) Save as is otherwise provided, all applications to Court made under the provisions of the Act or these Regulations shall: (a) Be made by way of petition and be titled "In the matter of the arbitration and in the matter of the Act" and reference shall be made in the application to the relevant section of the Act; (b) Contain a brief statement, in summary form, of the material facts, shall be divided into paragraphs numbered consecutively and shall state the nature of the relief sought or the questions of law for the determination of the Court as the case may be; (c) Annexed to it the submission, the minutes or proceedings of the arbitral tribunal award or the ruling to which the petition relates, or a copy of it 29 certified by the petitioner or his advocate to be a true copy; (d) Annexed to it the submission, the minutes or proceedings of the arbitral tribunal award or the ruling to which the petition relates, or a copy of it certified by the petitioner or his advocate to be a true copy; The present Petition was wholly filed online alongside all its annextures vide the Judicature and Application of Laws (Electronic Filing) Rules 2018. The same provide as follows: 8. All pleadings, petitions, applications, appeals and such other documents shall be filed electronically in accordance with these Rules. Therefore, when the Petitioner filed the present petition electronically, he was duly complying with the requirements of the law namely the Judicature and Application of Laws (Electronic Filing) Rules 2018. As to the presentation of the documents in hard copies, the Judicature and Application of Laws (Electronic Filing) Rules 2018 provide that: 25. Hard copies of all pleadings and other documents filed electronically may be printed by: 30 (a) The parties, their advocates or authorized representatives for their use in Court or elsewhere; or (b) The registry, for use of the Court where need arises. Once the pleadings and other documents are filed electronically, there is no mandatory requirement for the parties to submit hard copies of the same in Court. If the Court wishes to have the original documents which were filed electronically to be presented to Court in hard copies, it can direct the parties as such. Otherwise, under the Judicature and Application of Laws (Electronic Filing) Rules 2018, the Petitioner herein had no room to file the hard copy of the original Award or hard copy of the certified Award and the other necessary documents to be attached. The Petitioner duly scanned them all and filed them electronically while retaining the originals for presentation in Court where the Court might require him to do so in the future. The Respondents have not challenged the filed scanned Award that it is not genuine. The hearing stage has not yet been reached where either the court or the other party could demand to see the originals in hard copies, and this preliminary objection has been raised. Where it is not possible for the original or certified copy of the original to be filed in Court electronically; 31 and the originals are necessary to be produced in court for the proper determination of the matter by the Court, the Court in exercise of its inherent powers of case management, may give the necessary directives in that regard. Therefore, in the case at hand, I find the preliminary objection by Mr. Wigan, Learned Counsel, premature an unfounded because filing of documents in Court is a procedure that is specifically governed by the Judicature and Application of Laws (Electronic Filing) Rules 2018 which prescribe the manner of filing pleadings; and not Regulation 63 of the Arbitration (Rules of Procedure) Regulations, 2021, which provides for the kind of documents to be filed when one makes an application under the Act. As the provisions of the Judicature and Application of Laws (Electronic Filing) Rules 2018 and those of the Arbitration (Rules of Procedure) Regulations, 2021 were not meant to conflict each other, a harmonious construction is desirable rather than an interpretation that would create a deadlock and paralysis. I find that Mr. Wigan, Learned Advocate, in this point, made a mountain out of an ant hill. In short, all the preliminary objections raised by the Respondents are devoid of merit and the same are hereby dismissed with costs. It is so ordered. 32 A. H. GONZI JUDGE 17/01/2025 Ruling is delivered in Court this 17th day of January, 2025 in the presence of Mr. Mohamed Nazarali Advocate for the Applicant and Mr. Danford Malima, Advocate, holding brief for Mr. Athanas Wigan, Advocate for the Respondent. A. H. GONZI JUDGE 17/01/ 2025 33