tanzania marketing board vs cogecot cotton company sa 2002 tzca 13 2 september 2002

IN TH3 COURT OF APPEAL OF TANZANIA iiT D a k JLS & j- iXj* (CORJ1: RiMipEJNI* LPGAKINGIRAV J.A.,_ r ^ m O Z O A_ J ^ ._ ) CIVIL .iPF3.iL NO. 60 OF 1998 BS-TWEiSN TANZANIA COT-ION M.lRKSTING BOiiKD.............................. . iiPPiiLL'*NT AND COGiiCOT CCl'TCN COMPLY S .A ............ . POiSPGNDENT (ap p e a l from the decision ox the High Court o f Tanzania at Dar es -Salaam) J_.) dated the 25th day o f November, 1997 in Misc . C i v i l Causo_ Nqtj ^ o f JUDGMENT OF THE COURT LUGAKINGIKii,.. J . A . : The ap p ella n t Board's p e t it io n to impeach an award under s . 15 o f the a r b itr a tio n Ordinance (Cap. 15) and r r . 5 and 6 o f the A r b itr a tio n R ules, 1957, was dismissed by the High Court on the ground that i t . was tim e-barred. This appeal is again st that d e c is io n . Counsel fo r the appellan t had two a lte r n a tiv e arguments: F i r s t , that the High Court erred in holding that the time o f lim ita tio n was 60 days. In his submission the p e t it io n was a s u it founded on a. judgment, namely the award, th e re fo re the time o f lim ita tio n is 12 years reckoned from the dvite the n o tic e o f f i l i n g the award was served on the a p p ella n t. In the a lt e r n a t iv e , that s . 21 o f the L im ita tio n A c t, 1971» a p p lied .and that the p eriod spent prosecu tin g a previous proceeding between the same p a rtie s which term inated on 16/6/97 ought to have been excluded. 2 There is no m erit in e ith e r o f these arguments. With the f i r s t argument, and as observed by counsel fo r the respondent, the issue about the p e t it io n being a s u it was never canvassed b e fo re the High C ourt. 'That court cannot be judged on an issue i t never had an opportu nity to consider and express an op in ion . In fa c t the p o s itio n taken then virus the o p p o s ite . Counsel who appeared fo r the a p p ella n t b efo re the High Court s ta te d c a t e g o r ic a lly th at "This is not a s u i t . " That was, indeed, c o rro c t and not a s l i p . ** p e t it io n under r r . 5 "*-nd 6 o f the io rb itra tio n Rules is an a p p lic a tio n ra th er than a s u it . Rule 5 s ta te s in p a rt: a l l a p p lic a tio n s made under the Ordinance s h a ll be made by way o f p e t it io n . " ji p e t it io n is th e re fo re the p rescrib ed mode o f making an a p p lic a tio n under the A r b itr a tio n Ordinance, .and i t is common knowledge that oth er modes are p rescrib ed under other law s. A p p lic a tio n s under the Ordinance f a l l under Item 21 o f P a rt H I o f the F ir s t Schedule to the L im ita tio n n e t, sin ce the Ordinance i t s e l f does not provide fo r the p erio d o f lim it a t io n , and the p e rio d is 60 days. Although the High Court reckoned the p erio d from 1 1 / 12/9 6 , the c o rre c t date was, in our view , 11/3/96, that bein g the date the a p p ellan t acknowledged r e c e iv in g n o tic e o f the f i l i n g o f the award. The p e t it io n , the su bject o f th is appeal, was f i l e d on 2/7/S7> w e ll beyond the 60-day l i m i t . The High Court was th e re fo re c o rre c t in holding as i t did even on the basis o f the date i t adopted. The a lte r n a tiv e argument is e q u a lly m isconceived. In order fo r s . 21 to apply, and fo r t i m s p e n t in the prosecution o f another proceeding to be excluded, i t lias to be shown, in te r a l i a , that • • »/3 that oth er proceeding was prcswcutucl in a court which, from d e fe c t o f ju r is d ic t io n , was incompetent to e n te rta in i t . Counsel fo r the a p p ella n t was not heard to say that the proceeding which term inated on 16/6/97 (s e e / I 997/ TI jR 165) was prosecuted in a court incompetent to e n te rta in i t . I t is obvious to us that the whole o f the in stan t proceedin g is a bad t a c t i c e The appeal is dismissed with c o s ts 0 DATED a t DAR ES SALAAM th is 2nd day o f September, 2002. A .S . L . RAMADHANI JUSTICE OF APPEAL JUSTICE OF APPEAL J .A . MROSO JUSTICE OF I c c r t i f y that th is is a true copy o f the o r ig in a l, U - f — j- I y. - /j.. ( F .L .K . '1J2G.JL1 T DEPUTY REGISTRAR