ruaha concrete co ltd vs reginal manager tanroads kagera 2023 tzhccomd 282 29 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. NO. 53 OF 2022 RUAHA CONCRETE COMPANY LIMITED.................. APPLICANT VERSUS REGIONAL MANAGER, TANROADS KAGERA............................................. RESPONDENT Date of Last Hearing: 25/05/2023 Date of Ruling: 29/08/2023 RULING MKEHA, J: The applicant is moving the court for an order of extension of .time within which to file and register an arbitral award. The award sought to be registered was issued on 28th September 2005. The application is made under sections 88 (1) and 89 (1) of the Arbitration Act as well as section 14(1) of the Law of Limitation Act. The Chamber Summons is supported with an affidavit affirmed by Mr. Manjit Singh Sethi, Director of the 1 I Page applicant. On the other hand, the application is contested through a counter affidavit sworn by Mr. Kenan Komba, Principal Officer of the respondent. Besides, the application is challenged through a notice of preliminary objection raised by the respondent. Whereas Mr. Paschal Kamala learned advocate appeared for the applicant, Mr. Komba learned Principal State Attorney and Ms. Mtulya learned State Attorney represented the respondent. The application and preliminary points of objection were simultaneously argued. It was submitted by Ms. Mtulya learned State Attorney that, the court was functus officio in determining the application. According to the learned State Attorney, this was the third attempt by the applicant to register the alleged award. The learned State Attorney submitted that, in the first attempt, on 23/04/2006, the applicant filed the application before this court and the same was struck out for being incompetent. Then on 05/09/2006, the arbitrator filed the award at Dar es Salaam District Registry of the High Court. Again, the application for registration of the award was struck out for being time barred. Against the said decision, the applicant filed Civil Appeal No. 115 of 2013 at the Court of Appeal which was dismissed under section 3 of the Law of Limitation Act. In view of the 2 | Page learned State Attorney, the dismissal order amounted to conclusive determination of the application for filing the award. The learned State Attorney submitted further that, the application was frivolous and vexatious. According to the learned State Attorney, after dismissal of the applicant's appeal before the Court of Appeal, the only remedy that remained open to the applicant was an application for review of the decision of the Court of Appeal. The learned State Attorney considered the present application as an abuse of the court process. She thus pressed for dismissal of the same. Mr. Kamala learned advocate submitted in reply that, the award in favour of his client had neither been set aside, nor satisfied. As such, according to the learned advocate, the applicant was justified to keep knocking this court's doors. The learned advocate submitted that, it would be unjust for the court to hold the application as frivolous or vexatious without hearing the same. The learned advocate submitted further that, the court was not functus officio to determine the application as in the previous attempts, the applications for registration of the award were never heard on merits. The 3 | Pa ge learned advocate cited the decision in MALIK HASSAN SULEIMAN VS. SMZ (2005) TLR 236 to the effect that, dismissal of a matter by reason of limitation of time is not a decision on merits. Mr. Komba learned Principal State Attorney submitted in rejoinder that, the cumulative effect of the decisions in Miscellaneous Civil Cause No. 129 of the High Court, Dar es Salaam Registry and Civil Appeal No. 115 of 2013 by the Court of Appeal, was to mark conclusive determination this matter. He also asked for dismissal of the application. The only issue for determination is whether in the circumstances of this case, it is still open for the applicant to apply for extension of time to register the arbitral award. The answer to this issue is straight forward. As correctly submitted by Ms. Mtulya learned State Attorney, once an order of dismissal is made on account of limitation it is no longer open to an aggrieved party to go back to the court and institute an application for extension of time. The remedy is to seek review before the same court or to lodge an appeal or revision before a higher court. This is because, as far as the court is concerned the issue of time limitation has been determined. See: EAST AFRICAN DEVELOPMENT BANK VS. BLUELINE ENTERPRISES LIMITED, CIVIL APPEAL NO. 101 OF 2009, CAT AT DSM. 4 | Page It is not disputed that the application for registering the award was dismissed by an order of the Court of Appeal on 1st October 2020. The applicant did not seek review of the dismissal order of the Court. The applicant is now seeking to do what is no longer open to her, seeking extension of time. Had it not been for what transpired when the present application was filed in court, I would have ended up striking it out for reasons of incompetence. However, in the interests of justice, I hold the view that, the award is still executable. I will explain the reasons why I hold the said view. On 09/02/2023 when the learned counsel for the parties appeared in court, the learned advocate for the applicant submitted that, there were chances of settling the matter out of court. While waiting for settlement offer from the respondent, the learned advocate asked for adjournment. The learned State Attorney who appeared in court on that day, confirmed the learned advocate's submissions to reflect correct position of what was by then going on between the parties. On 13/03/2023, the learned State Attorney who appeared in court on that day submitted that, they were still waiting for instructions from the Attorney General. She asked for an adjournment. The learned advocate for the applicant submitted in agreement with what 5 | Page had been submitted by the learned State Attorney. In my considered view, the submissions of the learned counsel for the parties as highlighted hereinabove suggest that, despite the dismissal order in respect of the application for registering the award, the respondent still recognized and respected the award hence, engaged herself in efforts to settle the award out of court even after the decision of the Court of Appeal. In terms of section 25 (1) (b) of the Law of Contract Act an agreement which would ordinarily be void is considered to be valid if it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor or something which the promisor was legally compellable to do. Under this provision, it is open to the debtor to renounce or waive the rights conferred upon him including the rights under the law of limitation and thereby bind or obligate himself afresh to discharge the debt incurred irrespective the fact that the debt had become barred by limitation on the date when a fresh undertaking is given to the creditor to pay off the debt. Equally, it is my holding that, recognition of a time barred decree or award by the judgment debtor coupled with deliberate efforts of settling the same revives time limitation for registering and executing the decree or award. For the respondent's act of engaging 6 | Page in efforts to settle or satisfy the time barred award, in the interests of justice, I hold the act to have revived the time limitation for registering and executing the award. The applicant may proceed registering the award deeming it to have been issued on the date of this ruling. 7 | Pa ge