CIVIL APPLICATION NO 299 01 OF 2024 ORYX ENERGIES TANZANIA LIMITED FORMERLY KNOWN AS ORYX OIL COMPANY LIMITED ANOTHER VS OIL COM TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 299/01 OF 2024 ORYX ENERGIES TANZANIA LIMITED Formerly known as ORYX OIL COMPANY LIMITED.................. 1st APPLICANT ORYX ENERGIES SA............................................................2nd APPLICANT VERSUS OIL COM TANZANIA LIMITED ..............................................RESPONDENT (Application for stay of enforcement of the final arbitral award being carried out by High Court of Tanzania, Dar es Salaam Registry at Dar es Salaam) (Maqhimbi, J.l Dated the 12thApril, 2024 in Misc. Civil Cause No. 27821 of 2023 RULING 17th & 27th September, 2024 MGEYEKWA. J.A.: Oryx Energies Tanzania Limited (formerly known as Oryx Oil Company Limited) and Oryx Energies SA, the applicants herein, have brought this application against Oil Com Tanzania Limited, the respondent seeking an order staying the enforcement of the final arbitral award being carried out by the High Court of Tanzania, at Dar es Salaam (Maghimbi, J.) in Misc. Civil Cause No. 27821 of 2023. The application is made by way of notice of motion under the provisions of rules A (2) (a), (b), 11 (3), (4), (5) (a), (b) and (6) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by an affidavit duly sworn by Antonia Kilama, the Head of Legal and Company Secretary of the first applicant. On the other hand, the respondent resisted the application by an affidavit in reply sworn by Usamah Mohamed Sheikh, Principal Officer of the respondent. In essence, the respondent contends that the application is without merit and deserves to be dismissed. The brief background giving rise to the enforcement of the said award sought to be stayed, as per the supporting affidavit is to the effect that, on 18th November, 2016, the applicants and the respondent entered into an agreement with an arbitration clause. Pursuant to the arbitral clause, the dispute was referred to an arbitration. On that basis, the respondent appointed Professor Mussa Juma Assad as arbitrator. However, the applicants objected to the appointment of the said arbitrator and unsuccessfully petitioned for his recusal at the High Court. Aggrieved, the applicants filed a notice of appeal which was registered as Civil Appeal No. 47 of 2024 and it is still pending before the Court. Subsequently, the applicants requested the arbitrator to suspend the arbitral proceedings pending the hearing of the intended appeal. However, the arbitrator refused to stay the proceedings. Thus, the applicants lodged Misc. Civil Application No. 45 of 2021 in the High Court (Maghimbi, j) seeking to stay the arbitration proceedings but ended up being dismissed for want of jurisdiction. Following the refusal to stay the arbitral proceedings, the arbitrator continued with the arbitral proceedings and on 30th November 2023, they issued a final award in favour of the respondent. The award was forwarded to the High Court for recognition and enforcement through Misc. Civil Cause No. 27821 of 2023. The applicants challenged the respondent's application for recognition and enforcement of the final award through Misc. Civil Cause No. 1017 of 2024 and Misc. Civil Cause No. 4015 of 2024 which were dismissed by the High Court. Dissatisfied, on 30th April, 2024, the applicants preferred this application to have the enforcement of the final award in Misc. Civil Cause No. 27821 of 2023 be stayed pending the final hearing and determination of the intend appeals in the Court. In spite of the said instant application, the High Court proceeded to determine the application and delivered a ruling on 3rd May, 2024. Subsequently, the respondent initiated execution proceedings before the High Court through Execution Application No. 12491 of 2024. At the hearing of this application, Mr. Gasper Nyika, learned counsel appeared for the applicants whereas Mr. Thobias Laizer and Mr. Anthony Mark, both learned counsel appeared for the respondent. In support of the application, the learned counsel for the applicants referred me to the notice of motion, its supporting affidavit and adopted their respective contents. Pressing for the grant of the stay order, Mr. Nyika contended that the applicants have lodged an application for stay of final arbitral award as stated in the notice of motion, it was being carried by the High Court. The learned counsel continued to submit that the applicants are praying for an order to stay the enforcement of the award pending hearing and determination of Civil Appeal No. 47 of 2024 and the other two intended appeals which were lodged before the Court against two decisions of Maghimbi, J both dated 12th April, 2024 in respect of Misc. Civil Cause No. 1017 of 2024 and Misc. Civil Cause No. 27821 of 2023. He submitted that the application is brought under rule 4 (2) (a) and (b) and rule 11 (3), (4), (5) (a) (b) and (6) of the Rules. Elaborating, Mr. Nyika submitted that the applicants have cited rule 4 (2) (a) and (b) of the Rules because the application for stay is not premised on the decision of the High Court which is sought to be appealed, instead it is premised on the enforcement of the arbitral award and the decision of the High Court in Misc. Civil Cause No. 27821 of 2023. He cited the cases of UAP Insurance (T) Limited v. Yuda Thomas Shayo & 5 Others, Civil Application No. 611/18 of 2022 [2024] TZCA 239 (25 March 2024 TanzLII) and CRDB Tanzania Limited v. Tunu Ahmed Lashiku, Civil Application No. 315/12 of 2022 [2023] TZCA 17879 (23 November 2023 TanzLII), and argued that the cited cases support the view that this Court has jurisdiction under rule 4 (2) (a) and (b) of the Rules to issue a stay order even in cases where the pending appeal is not directly related to a decree sought to be stayed. The learned counsel for the applicants further referred me to paragraph (b) of the notice of motion and submitted that, the applicants have already filed two notices of appeal against the decisions of the High Court in respect of Misc. Civil Cause No. 1017 of 2024 and Misc. Civil Cause No. 27821 of 2023. He continued to submit that under paragraphs 4, 5, 6, 7 and 8 of the affidavit in support of the application, the applicants have shown good cause for stay of enforcement of the arbitral award. Mr. Nyika admitted that, Civil Appeal No. 47 of 2024 which was pending before the Court was struck out on 12th September, 2024, therefore, the same should not form part of grounds which the application for stay is premised, instead the application be stayed on intended appeals as per notice of appeals which are attached as annexure Orxy 7. As for the security, Mr. Nyika submitted that the applicants have undertaken in paragraph 10 of the affidavit in support of the application to furnish security that will be binding upon them. He also referred me to paragraphs 16 to 27 of the same affidavit where the applicants have stated similar grounds that they are ready to provide bank guarantee of security of any sum which will be binding upon them. He urged me to order the applicants to provide the said security within a period of six months from the date of the order to enable them to process the same. Based on his submissions, Mr. Nyika urged the Court to grant the application. Mr. Laizer prayed to adopt the respondent's affidavit in reply and lists of authorities to form part of his oral submission. He vigorously opposed the application by arguing that the application is for an order of stay of enforcement of the final award which was already carried out by the High Court in Misc. Civil Cause No. 27821 of 2023. To bolster his submission, he referred me to paragraph (b) of the notice of motion which constitute the order sought to be stayed. Mr. Laizer further referred me to paragraph 12 of the same affidavit and contended that, the applicants emphasized that the High Court's order sought to be stayed is in respect to the Misc. Civil Cause No. 27821 of 2023. The learned counsel also referred me to paragraphs 15 and 16 of the same affidavit and argued that the High Court's order sought to be stayed was to halt the continuation of the application of enforcement of the award in Misc. Civil Cause No. 27821 of 2023 which was scheduled for hearing on 3rd May, 2024. He emphasized that reading paragraph 8 of the said affidavit, it is evident that the instant application was in respect of Misc. Civil Caise No. 27821 of 2023 which was scheduled for hearing on 3rd May, 2024, and on that day the said award was deemed the Judgment and decree of the High Court, it was his argument that, the learned counsel for the applicants has made total reliance on rule 4 (2) (a) and (b) of the Rules, however, the order that seeks to halt the High Court proceedings has become superfluous, thus, the present application is overtaken by the event. The learned counsel did not end there, he contended that, Civil Appeal No. 47 of 2024 which was the basis for seeking the order of stay was determined on 12th September, 2024. He added that one of the intended appeals as referred by the applicants was withdrawn on 12th August, 2024 and served to the respondent on 27th August, 2024. He argued that it is common principle that parties are bound by their pleadings. He further argued that, there is no any amendment of the notice of motion made by the applicants to justify and support the argument made by Mr. Nyika. He contended that, since what was submitted by Mr. Nyika is not supported by the applicants' pleadings are mere statements from the Bar. Mr. Laizer firmly contended that an application for stay of execution has its own rules and amounts to different application. Reinforcing his submission, he cited the case of Barclays Bank (T) Limited v. Jacob Muro, Civil Appeal No. 37 of 2019 and Martin Fredrick Rajab v. Ilemela Municipal Council & Another, Civil Appeal No. 197 of 2019. Thus, it was his submission that, the applicability of rule 11 of the Rules is not justified. In the alternative, Mr. Laizer argue that, if the Court will find that the applicants' application has complied with the required conditions, then, it should find that the proposed period of six month within which the applicants' seeking security is too long since they were aware of the outcome of the final award. In conclusion, the learned counsel for the respondent urged me to dismiss the application for being meritless. Mr. Mark was equally forceful, he asserted that the power under rule 4 (2) (a) and (b) of the Rules allows the Court to depart from the rules where there is no specific provision on the subject matter to meet the ends of justice. He contended that the application is misconceived because the order sought to be stayed have already determined by the High Court in Misc. Civil Cause No. 27821 of 2023. Relying on the case of Rutagatina C.L v. The Advocates Committee & Another, Civil Application 98 of 2010) [2011] TZCA 143 (18 February 2011TanzLII), he argued that the applicants were supposed to lodge an application for stay of execution. In sum, Mr. Mark urged me to find the contentions of the applicants' counsel to be without a semblance of merits and he, accordingly, urged me to dismiss the application with costs. In his rejoinder, Mr. Nyika reiterated his earlier submission. He opposed the submission made by Mr. Laizer that the application has been overtaken by the event since the applicants in the notice of motion under paragraph (b) have prayed for stay of enforcement of the final award. He added that, an award will come to an end upon being satisfied which is not yet. Thus, it has not been overtaken by the events. Responding to the learned counsel's question, why they did not apply for stay of execution after the High Court had recognized the award, he submitted that an appeal pending before the Court is not against the Judgment or decree arising from the decision of the High Court in Misc. Civil Cause No. 27821 of 2023 but against the decision of the High Court which recognized the said award as binding and enforceable, and on that basis, they could not have invoked rule 11 of the Rules. Therefore, he argued that, it was proper for the applicants to invoke rule 4 (2) (a) and (b) of the Rules. The learned counsel distinguished the cited case of Rutagatina (supra) by stating that it is inapplicable in the matter at hand since rule 4 of the Rules can be invoked to stay of enforcement of final award and not proceedings. Having dispassionately considered the submissions made by the learned counsel for the parties, the main issue for my determination is whether the application is meritorious. In the instant application, the confronting issue on which the parties locked horns, as evidenced by their submission is whether rule 4 (2) (a) and (b) of the Rules is applicable in the present matter. For the sake of clarity, I find it apposite to cite it in extenso thus: "4. (2) When it is necessary to make an order for the purpose of- (a) dealing with any matter for which no provision is made by these Rules or any other written law; (b) better meeting the ends o fjustice o f the Courts." It is glaring that under the cited rule, the Court can make an order in situation where there is no provision made by the Rules and in better meeting the ends of justice. As alluded to above, there is no dispute that the applicants are praying for stay of enforcement of the final arbitral award. It is noteworthy to indicate that an application for stay before the Court does not operate as automatic stay of the decree or order appealed from. The application sought to be stayed must be pending before the court. In accordance with the provision of section 79 of the Arbitration Act of 2020, the award became executable upon being registered by the High Court and thereby becoming a decree of that court. As intimated earlier, Misc. Civil Cause No. 27821 of 2023 in regard to the enforcement of the final arbitral award was finally determined by the High Court on 3rd May, 2024 and this application was lodged in this Court on * ■. i- ■ 30th April, 2024. Therefore, the ground that there is a pending appeal before the Court cannot move me to grant the instant application because the proceedings which was sought to be stayed have already been determined. Worst still, there is no pending appeal in regard to Maghimbi's decision in Misc. Civil Cause No. 27821 of 2023 dated 3rd May, 2024. Thus, I am inclined to agree with Mr. Laizer that, the application at hand does not meet the qualification of being stayed, there is nothing before the High Court to be stayed by this Court, hence the same is overtaken by events. In addition, with profound respect, I find the submission made by Mr. Nyika is misconceived. I, thus agree with the submission of the respondent's r counsel that the same was merely counsel's statement from the Bar. In the cases of Fweda Mwanajoma & Another v. Republic, Criminal Appeal No. 174 of 2008 [2010] TZCA 96 [23 March 2010 TanzLII] and Farm Equipment Company Limited v. Festo Mkuta Mbuzu, Civil Application No. I l l of 2014 [2017] TZCA 209 [27 October 2017 TanzLII], this Court declined to consider statements made by the counsel from the Bar. In the same vein, I am unable to evaluate the submission made by Mr. Nyika in this application on that aspect. In the circumstances, I find the cases of UAP Insurance (supra) and CRDB Bank Tanzania Ltd v. Tunu Ahmed Lashiku (supra), cited by Mr. Nyika distinguishable and not applicable in the circumstances of this application. In both cases, the Court relied on rule 4 (2) (a) of the Rules after noting that there was a peculiar circumstance which allowed the application. In the present application, there is no peculiar circumstance to move me to allow it. As alluded to above, in the instant case, the application sought to be stayed has already been determined by the High Court, there is nothing to stay. Thus, in the circumstances, rule 4 (2) of the Rules cannot apply. In sum, based on the foregoing, I am of firm view that, the applicants have not complied with the requisite conditions outlined for stay of enforcement of the final arbitral award. This renders the instant application not competent and it is hereby struck out. I make no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 27th day of September, 2024. A. Z. MGEYEKWA JUSTICE OF APPEAL Ruling delivered this 27th day of September, 2024, in the presence of Mr. Gaspar Nyika and Ms. Faiza Salah both learned counsel for the Applicants and Mr. Sabas Shayo, learned counsel for Respondent is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL