CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: KEREFU. J.A., FIKIRINI. 3.A. And MASOUP. J.A.^ CIVIL APPEAL NO. 338 OF 2022 REGIONAL MANAGER TAN ROADS, SIMIYU.................................. APPELLANT VERSUS NYAMGURUMA ENTERPRISES CO. LTD..................................... RESPONDENT (Appeal from the Decision and Decree of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Phillip, 3.) dated the 21th day of February, 2019 in Miscellaneous Commercial Cause No. 203 of 2017 JUDGMENT OF THE COURT 18th & 25th February, 2025. FIKIRINI. J.A.: The current appeal originates from arbitration proceedings initiated by the respondent, Nyamguruma Enterprises Co. Ltd. (the claimant), and the appellant, Regional Manager, Tanroads, Simiyu (the respondent). These proceedings were overseen by AN Salum Likumbo, the Sole Arbitrator, under the guidance of the National Construction Council (NCC). The arbitration resulted in an Award in favour of the respondent, dated 26th January, 2017. i The respondent then approached the High Court Commercial Division in Miscellaneous Commercial Cause No. 203 of 2017 to register and enforce the Award. Both parties appeared before the court, where the appellant requested a stay on the enforcement of the Award, intending to challenge it. The High Court Judge granted this request, leading to the filing of Miscellaneous Commercial Cause No. 39 of 2017, aimed at setting aside the Award. The appellant's primary grievances in challenging the Award were: first, that the arbitration was conducted without proof of an Arbitration Agreement, a request for arbitration, or an arbitration clause; and second, that the Award was being enforced against an entity that lacked a legal personality capable of being sued. Before determining the application for the stay of registration and enforcement of the Award, the trial Judge raised the issue of the petition's competence, stating that it contravened Rule 8 of the Arbitration Rules, 1957 (GN. No. 427 of 1957). The Judge asked both parties to address her on the issue. In a ruling on 21st February, 2019, in the presence of the respondent's counsel and absence of the appellant, who was aware of the date of the ruling, the court struck out Miscellaneous Commercial Cause No. 39 of 2017 (the petition), and on the same date registered the Award, and declared it enforceable as a decree in the Miscellaneous Commercial Cause No. 203 of 2017. This decision aggrieved the appellant. Initially, she filed two appeals: Civil Appeal No. 205 of 2018, challenging the ruling in Miscellaneous Commercial Cause No. 203 of 2017 (which declared the Award enforceable), and Civil Appeal No. 206 of 2018, contesting the order that struck out the petition for non-compliance with Rule 8 of the Arbitration Rules. Both appeals were found to be defective and incompetent. The appellant requested to withdraw them, which the Court allowed. Undeterred, the appellant filed a new appeal concerning Miscellaneous Commercial Cause No. 203 of 2017. The appeal against Miscellaneous Commercial Cause No. 39 of 2017 was not pursued. After seeking an extension of time under Rule 11 (1) of the Appellate Jurisdiction Act, Cap. 141, the appellant returned to the Court in Civil Appeal No. 338 of 2022. During the hearing, the appellant was represented by Mr. Justinian Byabato, learned Principal State Attorney, along with Misses. Jennifer Kaaya, Ansila Makyao, and Mr. Usaje Mwambene, all learned Senior 3 State Attorneys. Mr. Geofrey Lugomo, learned counsel, represented the respondent. Before his address, Mr. Byabato sought leave to argue additional grounds of appeal under Rule 113 (1) of the Tanzania Court of Appeal Rules, 2009. The Court granted this unopposed request and Mr. Byabato added two grounds, as grounds 3 and 4: 3. The trial court erred by denying the appellant the right to be heard in Miscellaneous Commercial Cause No. 203 of 2017, contrary to the principles of natural justice. 4. The trial court erred in law by registering the final Award as a decree, which was improperly procured from an arbitral tribunal that lacked competent jurisdiction and disregarded the adjudication procedure. Before proceeding with the four grounds of appeal, the Court sought from the parties to address it on the competence of the appeal. Mr. Byabato argued that the appeal was competent, as the appellant challenged the High Court's decision to strike out the petition and register the Award without considering its legality or validity. He emphasized that the trial Judge should have reviewed the legality and validity of the Award under Rule 4 of the Arbitration Rules before proceeding with registration and enforcement of the same as decree of the court. Mr. Lugomo, however, dismissed the appellant's argument, asserting that the appeal was incompetent. He contended that the grounds of appeal focused on the Arbitrator's decision, not the High Court's. According to Mr. Lugomo, this Court can only review the High Court's decision, not the Arbitrator's, unless the High Court overlooked a point or there is a point of law involved. Mr. Lugomo further argued that the appellant failed to appear when the ruling was fixed for delivery due to negligence. He claimed that the trial Judge was justified in registering the Award as an enforceable decree, as the appellant failed to attend the hearing, which was scheduled after the parties had been heard on the petition's competence. The key issue is whether the Court has jurisdiction to entertain the appeal. Before addressing this, it is significant to note that when a court strikes out a matter, it does not mark the end of the road to justice. The appropriate remedy is for the party involved to correct the glitch and return to court for a determination of the contested right. 5 In this case, the appellant's complaint arises from the trial Judge striking out the petition and proceeding to register the Award as an enforceable decree of the court without allowing the appellant a chance to be heard or ensuring the Award's legality and validity as required under Rule 4 of the Arbitration Rules. Rule 4 of the Arbitration Rules reads: "Arbitrators or an umpire,, requested under the provisions o f section 11(2) o f the A ct to cause an Aw ard to be file d in the Court, sh all forw ard the Award, or a copy certified by them or him to be a true copy, together with the evidence on the reference, the m inutes o f their proceedings and a copy o f each notice given to the parties, by registered post and in a sealed envelope addressed to the Registrar, together with a letter, also so addressed, requesting that such Aw ard or copy be file d in the Court." Upon reviewing this rule, we find no requirement for the trial Judge to review the legality and validity of the Award before registering it. Instead, the rule outlines the process for transmitting the documents to the Registrar for filing, which is an automatic procedure. If a party wishes to challenge the Award, they may file a petition, which the appellant did. However, the petition was struck out due to non­ compliance with the law, and the trial Judge proceeded to register the Award. The chronology of events shows that the petition was contested, and both parties appeared before the court. The trial Judge raised the issue of the petition's competence suo motu, and the appellant's counsel conceded that the petition was not properly filed. The trial Judge would have instantly struck out the petition but reserved a date for ruling. Despite this, the appellant failed to appear on the ruling date, and after striking out the petition, the trial Judge proceeded with the registration of the Award. The issue now is whether this denied the appellant the right to be heard. Honestly, nothing prevented the trial Judge from proceeding to order the registration of the Award. The absence of the appellant's counsel, as noted by Mr. Lugoma, a submission with which we align was without prior notice. It has made us wonder, as it was expected, that the appellant would be eager to know the outcome of the ruling, given its impact on her; however, that was not the case. This would have been a fitting opportunity for the appellant's counsel to move the court. Since the petition was struck out for non-compliance with the law, there 7 was still an opportunity to comply with Rule 8 of the Arbitral Rules and return to court to pursue the petition. The appellant's claim that the trial Judge failed to adequately satisfy herself regarding the legality and validity of the Award might make sense in other cases, depending on their specific facts. Conversely, in the present case, that was not applicable. The proper procedure for challenging the registration of the Award was through a petition. This would have allowed her to appeal any subsequent decision if it was not in her favour. In our view, the appellant opted to circumvent the established procedure, which we strongly discourage when pursuing justice. The appellant's concerns primarily focused on disputing the Arbitrator's decision, which the High Court should have first addressed but was not. Consequently, there is no material upon which this Court can base a decision. There is a long list of precedents, such as Abdul Athuman v. R, [2004] T.L.R 151, Samwel Sawe v. R, Criminal Appeal No. 135 of 2004, Sadick Marwa Kisase v. R, Criminal Appeal No. 83 of 2012, and Yusuph Masalu @ Jiduvi v. R, Criminal Appeal No. 163 of 2017 (all unreported), just to name a few. In Sadick Marwa Kisase (supra), the Court emphasized that: "The Court has repeatedly held that m atters not raised in the first appeal cannot be raised in a second appellate c o u rt" Under the circumstances, this Court lacks the jurisdiction to address appeals from the High Court concerning never decided points. See: Integrated Property Investment (T) Limited and 2 Others v. The Company for Habitat and Housing in Africa, Civil Appeal No. 107 of 2015 [2018] TZCA 556 (24th December, 2018; TANZLII). In that case, the decision appealed against originated from a Summary Suit under Order XXXV of the Civil Procedure Code, Cap. 33 Revised Laws (the CPC). After the respondent, in that case, filed a suit against the appellants, the trial court served them a summons in terms of Order XXXV rule 2 (1) of the CPC, that within twenty one days from the date of service of the summons, could apply for leave to appear and defend the suit. They complied and filed an application to that effect. A notice of a preliminary point of objection (PO) was raised, challenging the competence of the application. The respondent entered appearance on the date scheduled for the hearing, whereas the applicants did not. The application was dismissed. On the same date after the dismissal of the application to defend, the trial Judge entered "default judgment." In the decree resulting from the judgment, the trial Judge Awarded all the reliefs prayed in the plaint. Aggrieved, the appellants preferred an appeal to this Court. In its decision dismissing the appeal, the Court stated that the grounds for appeal must be based on the points already decided upon by the High Court. While the facts in that case differ slightly, the principle applied is relevant to the appeal before us. In the present case, none of the grounds of appeal raised were discussed or resolved by the High Court. Therefore, this Court has no basis to act upon them, as the order granting the registration of the Award was never part of the intended appeal. The order is reproduced below for clarity: "COURT: Follow ing the striking out o f the petition for setting aside the fin a l Aw ard file d herein; I hereby grant the prayer made by the Claim ants Advocate, and pursuant to Section 17 (1) o f the Arbitration Act, Cap. 15, R.E. 2002\ it is hereby ordered that the Final Aw ard file d in court by the Sole Arbitrator, Shaibu S. Likumbo, is enforceable as a court decree. It is so ordered. " The second point on the right to be heard relates to the competence of the appeal. Addressing the point, Mr. Mwambene, learned Senior State Attorney, argued that Miscellaneous Commercial 10 Cause Nos. 203 and 39 of 2017 were before the same High Court Judge and were scheduled simultaneously. On 21st February, 2019, after delivering a ruling in Miscellaneous Commercial Cause No. 39 of 2017, striking out the petition challenging the Award, the High Court Judge proceeded to order the registration of the Award as an enforceable decree, despite the appellant's absence. By doing so, the High Court Judge denied the appellant the right to be heard, violating the cardinal principle of natural justice and breaching Article 13 of the Constitution of the United Republic of Tanzania, 1977, as amended. The learned counsel referred to the case of Independent Power Tanzania Limited (IPTL) v. Standard Chartered Bank (Hong Kong) Limited, Civil Revision No. 1 of 2009 [2009] TZCA 17 (9th April, 2009; TANZLII). In response, Mr. Lugomo argued that the right to be heard carries an obligation. In this case, the appellant was notified that an application for the registration of the Award had been filed and was granted leave to file a Petition challenging the Award. The petition was filed but contravened Rule 8 of the Arbitration Rules. The appellant was afforded the right to be heard but chose not to attend the court for ruling on the ii scheduled date. Furthermore, the appellant has not provided any explanation for her absence. The Court inquired of Mr. Lugomo about the consequences of granting more time to the appellant. He replied briefly that both applications had been scheduled for the same date for convenience and to expedite justice. During the hearing, the Court dealt with Miscellaneous Commercial Cause No. 39 of 2017, the petition challenging the Award, and adjourned Miscellaneous Commercial Cause No. 203 of 2017, the application for registration of the Award, to pave the way for the determination of the petition first. The appellant should have understood that once Miscellaneous Commercial Cause No. 39 of 2017 was heard, the next matter would be Miscellaneous Commercial Cause No. 203 of 2017. Mr. Lugomo stressed that the trial Judge was unfairly blamed in this matter. There is no dispute that the appellant was aware of the ruling date and chose not to appear or provide any explanation for her absence. Moreover, no effort was made to revive the petition, which had been struck out for non-compliance. 12 The solitary burning issue is whether the appellant was denied the right to be heard as contended. A fundamental principle of natural justice requires a right to be heard before any adverse action is taken against a party to always be observed. To emphasize that right, the same has been enshrined under Article 13 (6) (a) of the Constitution. We are all at one with the appellant that no one should be condemned unheard. Supporting the assertion, the appellant referred us to the case of (IPTL) (supra), in which the Court reiterated the observance of the right to be heard before making any adverse decision or order. Facts in that application were that the respondent, Standard Chartered Bank (Hong Kong) Limited, who was the creditor of the Company, petitioned before the High Court for administration order and appointment of an administrator of the Company. Having heard the applicant alone, the High Court granted the petition without issuing notices to the interested parties, such as the Company and the appointed provisional liquidator. In short, these two were not heard. This is different from what occurred in the present appeal, whereby the appellant failed to exercise her right to be heard, which the court afforded her. First, she was issued with a notice to appear. When 13 she appeared and prayed to be allowed to contest the registration of the Award, she was permitted to lodge a petition in that regard. Second, when the trial Judge raised suo motuthe. issue of the competence of the petition, the learned counsel appearing for the appellant conceded that the petition was marred with defect and contravened Rule 8 of the Arbitration Rules. Third, the trial Judge reserved the ruling. What transpired in the IPTL case (supra) differs entirely from what occurred in the present appeal. The case is thus distinguishable. Nevertheless, it is not contested that the lodged petition was struck out for failure to comply with the requirement under rule 8 of the Arbitral Rules. The petition being struck out and the trial Judge proceeding to register the Award, it cannot be said that the appellant was denied the right to be heard. Even today, the appellant still has a right to exercise if she wishes. As highlighted in Mariaria & Others v. Matundura [2004] E.A 163, the Court held that justice must be sought within the rules, and even sympathy alone would not assist a party who is negligent. The appellant's claim of being denied the right to be heard is unfounded. She knew the ruling date and chose not to appear in court or explain her absence. Additionally, no attempt was made to rectify the 14 situation, as the petition had been struck out for non-compliance. As alluded to above, the road to justice for the appellant is still open, albeit on a different approach. In short, we find the appeal misconceived and therefore dismissed with costs. DATED at DODOMA this 25th day of 2025. R. J. KEREFU JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 25th day of February, 2025, in the presence of Mr. Yohana Ndila assisted by Mr. Victor Mhana, both learned State Attorneys for the Appellant and Mr. Geofrey Lugomo, learned counsel for the Respondent linked via Video Conference from Dar es salaam, is hereby certified as a true copy of the original. — C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 15