Ruling TAA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISC. CIVIL CAUSE NO. 7 OF 2023 IN THE MATTER OF ARBITRATION AND IN THE MATTER OF ARBITRATION ACT, [CAP. 15 R.E 2020] BETWEEN THE ATTORNEY GENERAL ………………………………………… 1ST PETITIONER TANZANIA AIRPORTS AUTHORITY (TAA) ………………..…. 2ND PETITIONER AND SHAMIRI YAHAYA POROTO ……….……….……………………...… RESPONDENT RULING CHUMA, J. This Petition was filed in this court under section 73 (1) of the Arbitration Act, Cap. 15 [R.E 2020], herein known as the Act and Rule 63 of the Arbitration (Rules of Procedure) Regulations (G.N. No.146 of 2021). The brief facts of this Petition, as gathered from the pleadings filed in this court are as stated here under. That On the 10th November, 2017, Tanzania Airports Authority-TAA, (2nd Petitioner), entered into a contract No. FB.3/226/296/64/2017-2018, for a lease of space to conduct money transfer business at Mwanza Airport to the respondent. However, until the contract period ended the unpaid rental and concession fees were about TZS. 3,347,479.0, with the interest of 20% from the date the amount is due till it is fully paid, that the respondent failed to pay the dues regardless 1 of several reminders including the Demand Notice and intention to sue from both petitioners. The Agreement urged the parties to resolve their disputes through arbitration, it was then when the respondent breached the lease agreement and failed to pay the dues, the petitioners opted to invoke the arbitral clause. Mr. Mella Mwema is a Sole Arbitrator. Upon acceptance, the Petitioners filed with the Arbitrator, a Statement of Claim alleging that, the dispute in the arbitration arose out of the respondent’s act of breaching the lease agreement, hence, amounting to an alleged breach of contract causing the petitioners to suffer losses thus claiming for TZS. 3,347,479.8 being the outstanding rental and advertisement charges, along with TZS. 24,000,000/- being compensation for the damages and losses suffered by and interest to the tune of TZS. 2,677,983.2 being the 20% of the actual amount claimed on each year for all three consecutive years. The Sole Arbitrator, having considered the matters laid before him and heard submissions from the petitioner in the absence of the respondent, did, on 1st September 2023, publish an award/order and declare/direct as follows, and I quote: - 1. That the Tribunal award the claimant an outstanding balance of TZS. 3,347,479.8…I therefore award TZS. 2 2,677,983.2 being 20% interest of the actual amount claimed in each year … 2. …TZS. 24,000,000/-, is rejected since the same has not specifically proved. 3. …Parties are jointly and severally liable to pay cost… 4. All other remaining claims are dismissed. As a result, the application from which this ex-parte ruling emanates has been preferred by the petitioners herein against the respondent seeking a judgment and decree as follows: - i. This honorable court be pleased to grant leave to register and enforce the award by arbitrator Mella Obeid Mwema dated 1st day of September, 2023 in the matter between the Attorney General and Tanzania Airports Authority Vs. Shamiri Yahaya Poroto. ii. Costs of the application be borne by the respondent. iii. Any other order(s) that this honorable court may deem just and fit to grant When this matter was placed before for necessary orders on 13.3.2024 Mr. Baraka Nyambita State Attorney appeared for the petitioners and informed the court that the respondent's whereabouts were unknown based on the affidavit of the court process server sworn 3 on 8.3.2024, and it was then he prayed for substitute service in which the court ordered for the same however, on the hearing date the respondent still entered no appearance in court, and it was the petitioners’ learned counsel statement that the respondent was duly served through publication in the two local newspapers namely, Mwananchi dated 8th April, 2024 and The Citizen dated 9th April, 2024. Given the respondent’s failure to appear, Mr. Nyambita prayed to proceed ex-parte. The Court invoked the provisions of Order VIII Rule 14 (2) (a) of the Civil Procedure Code, Cap. 33 R.E. 2019 (CPC), and ordered that the matter proceed ex- parte against the respondent on the 16th day of April, 2024. In his submission, Mr. Nyambita State Attorney argued that the instant application is for registration of arbitral award, therefore under section 73(1) of the Arbitration Act Cap 15 RE 2020, he urged this court to register and enforce the award by arbitrator Mwema Mella dated 1st day of September, 2023 between the parties herein to be a judgment and decree of this court with cost. Having heard the submission of Mr. Baraka State Attorney for the petitioner, the arbitral award issued by a sole arbitrator Mr. Mwema Mella on the 1st day of September, 2023. And Part IX of the Act entails the 4 power of the court concerning awards that the court to enter judgment in terms of the award, specifically under section 68 which provides that: - 1) An award made by the arbitral tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court. 2) Where leave of the court is given, judgment may be entered in terms of an award. 3) Save as otherwise provided, leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the arbitral tribunal lacked substantive jurisdiction to make the award. Based on the failure of the respondent to appear and because the law is clear regarding this kind of leave. After satisfying myself that the petition conforms with Regulation 63 (1) (a, b, c, d and e) and by borrowing the wisdom of my fellow brother Nangera, J in the decision of Htt Infranco Limited Vs. Smile Communications Tanzania Limited. Misc. Commercial Cause No. 15 of 2020. (Unreported) In the upshot of all this, leave of this court is hereby granted to the petitioners to enforce the arbitral award issued by Mr. Mwema the sole arbitrator dated 1st day of September 2023, as judgment and decree or 5 order of this court according to section 68(1) and (2) of the Arbitration Act, Cap. 15 R.E 2020, based on the circumstances of this case there is no order as to cost. It is so ordered. DATED at MWANZA this 16th day of April, 2024. W.M. CHUMA JUDGE 6 The ruling delivered in court before Mr. Baraka Nyambita SA for the petitioners and in absence of the respondent this 16th day of April, 2024. W.M. CHUMA JUDGE 7