CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA (CORAM: LEVIRA. J.A.. GALEBA. J.A. And ISMAIL. J.A.^ CIVIL APPEAL NO. 392 OF 2022 TANZANIA PETROLEUM DEVELOPMENT CORPORATION.............APPELLANT VERSUS KILIMANJARO OIL COMPANY LIMITED..................................... RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, Commercial Division at Tanzania (Mkeha. 3.) Dated 17th day of February, 2022 in Miscellaneous Commercial Cause No. 25 of 2020 RULING OF THE COURT 12th & 28th February, 2025 LEVIRA, 3.A.: This ruling is in respect of preliminary points of objection challenging competence of the appeal, as raised by counsel for the respondent through a notice lodged in Court on 16th September, 2022. The grounds of objection are as follows: 1. That, the appeal is incom petent fo r being accom panied with a defective notice o f appeal. 2. That, the record o f appeal is defective fo r failure to incorporate a ll necessary documents, pleadings and proceedings contrary to the m andatory provisions o f rule 96 (k) o f the Tanzania Court o f Appeal Rules, 2009. 3. That the appeal is incom petent fo r containing a defective and erroneous certificate o f delay in that: i) The certificate o f delay, subject o f tim e com putation refers to copies o f Judgm entm , decree and proceedings, the docum ents which were not asked fo r by the appellant and does not form p art o f the record o f appeal. ii) The certificate o f delay purports to com pute and exclude the non-existing and unknown days and therefore render the appeal to be erroneously filed. 4. That, the appeal contravenes the order o f the High Court o f Tanzania, Com m ercial Division (the low er court), granting leave to appeal in Misc. Com m ercial Application No. 29 o f 2022 in that it contains grounds o f appeal which are not certified by the tria l court. 5. That, the appeal has been inconsistently file d and contrary to the m andatory provisions o f section 17 (2) (a) (b) o f the O ffice o f the Attorney Genera! (Discharge o f Duties) Act, Cap 268 R.E. 2019 for failure to seek leave to jo in the proceedings. Before we proceed any further to determine the grounds of preliminary objection as above, we find it apposite to trace, albeit briefly, the background of the matter at hand. We gather from the record of appeal that, on 8th December, 2015 the parties herein entered into a contract of disposal of condensate, in which the respondent was required among other things, to secure the market of the condensate subject of the approval and confirmation by the appellant before uplifting of the condensate. The respondent fulfilled her obligation until on 8th March, 2016. However, it is alleged that, in the beginning of 2016, worldwide prices of petroleum products fell drastically. Following the drop of prices, the respondent wrote to the appellant requesting for a reduction of price provided in the contract. Nonetheless, the parties herein had several correspondences and meetings regarding the respondent's request in vain. As a result of failure to agree on price reduction, the respondent initiated adjudication proceedings claiming damages to the tune of US$ 5,000,073. The appellant also lodged a counter claim claiming the sum of US$ 1,504,158.85. The adjudication proceedings ended in favour of the appellant. Aggrieved, the respondent approached the Tanzania Institute of Arbitrators seeking to challenge that decision. On 5th September, 2017, the Arbitrator pronounced the final award which was successfully challenged by the respondent in the High Court of Tanzania, Commercial Division at Dar es Salaam (the High Court) via Miscellaneous Commercial Cause No. 25 of 2020, subject of the present appeal. The appellant has presented five grounds of appeal before us which we shall not reproduce, as the ruling at hand is dealing with points of preliminary objection as intimated above. At the hearing of the appeal, the appellant was represented by Mr. Baraka Nyabita, learned Senior State Attorney, assisted by Mr. Gallus Lupogo, Ms. Agnes Makuba and Paskas Alexander, all learned State Attorneys and Mr. Yusuph Ambani, the appellant's Principal Legal Officer, whereas, the respondent had the services of Messrs. Syiivanus Mayenga, Josiah Noah Samwel and Issa Chundo, all learned advocates. Mr. Mayenga adopted the respondent's written submissions to form part of his oral submission in support of the points of preliminary objection and abandoned the fourth point of objection. We prefer to start with the fifth ground of objection. Mr. Mayenga submitted in respect of the fifth ground of objection to the effect that, the appeal was filed contrary to the mandatory provisions of section 17 (2) (a) & (b) of the Office of the Attorney General (Discharge of Duties) Act, Cap 268. He argued that joining the Attorney General in the proceedings without first seeking leave of the court, rendered the application for leave to appeal to the Court and its resultant ruling, a nullity. According to him, the Attorney General was not made a party to the proceedings all along from when the petition was filed in the High Court and the reply thereto. He elaborated further, that it was the office of Solicitor General which took part in the proceedings when the petition was lodged. Later, after delivery of the ruling, the appellant, through the reply to the counter affidavit, introduced the Attorney General as a new party (as a second applicant) to the proceedings, as it can be observed at page 117 of the record of appeal. Consequently, the ruling granting leave to appeal to the Court also included the Attorney General as a party to the case. According to him, inclusion of Attorney General was erroneous in law because there was no application made prior to his inclusion in the proceedings. He argued vehemently that, it is as if the Attorney General was included with the aim of assisting the appellant to get leave to appeal to the Court. His view was based on the observation that in the present appeal, the Attorney General is not made a party. He went on to argue that, an inclusion of the Attorney General in the proceedings rendered the ruling of the High Court a nullity and it is as good as there was no leave granted. In support of his argument, he cited the case of Attorney General v. Mkongo Buildings and Civil Works Contractors Limited and Another, Civil Application No. 166/16 of 2020 (unreported). Based on this argument, he urged us to strike out the appeal with costs. Mr. Nyabita conceded to the fifth ground of objection straight away, stating that the inclusion of the Attorney General in the proceedings without notice, was a clear anomaly in the proceedings. He added, that such anomaly cannot be rectified because what is contained in the affidavit cannot be amended. As such, he said, it cannot be said with certitude that the appellant obtained leave before filing the appeal as the order granting it was unlawful, following an illegal inclusion of the Attorney General in the proceedings. In the circumstance, he said, the appeal before us is incompetent and he urged us to strike it out without costs. In rejoinder, Mr. Mayenga welcomed the prayer by Mr. Nyabita that the appeal be struck out, but he pressed for costs as the respondent incurred costs in preparation for the hearing of the appeal and travelling to Dodoma to appear before the Court. We indicated above that the matter at hand traces its origin from the arbitral award which was successfully challenged by the respondent in the High Court. In terms of section 74 (4) of the Arbitration Act, Cap 15, the appellant could not appeal without leave of the court. Thus, via Miscellaneous Commercial Application No. 29 of 2022, she applied for leave to appeal as it can be observed at pages 331 and 353 of the record of appeal. We further observe from the chamber summons and supporting affidavit presented before the High Court that, the parties therein were only two; where the appellant herein was the applicant, and the respondent, was the current respondent. However, the parties changed when the appellant filed a reply to the respondent's counter affidavit; where she included the "Honourable Attorney Genera/' as a second applicant without any notice, as it can be found at page 417 of the record of appeal. In its Ruling and Drawn Order in that application, the High Court also included the "Honorable Attorney General" as the second applicant and granted the application. For no apparent reason, the appellant has opted not to include the Attorney General in this appeal. The manner in which the Attorney General was included in the proceedings has been complained of by the respondent in this appeal and we do not think the issue as to whether it was proper, should hold us much. We are mindful of the settled position that, the Attorney General has powers to appear at any stage of any proceedings, appeal or execution before the court or tribunal in matters of public interest or property. See: The Attorney General v. Tanzania Ports Authority & Another, Civil Application No. 87 of 2016 (unreported). In the present case, the appellant has complained that the inclusion of the Attorney General contravened section 17 (2) (a) and (b) of the Arbitration Act. For ease of reference, that provision stipulates as follows: "17 (2). In the exercise o f the pow ers vested in the Attorney General with regards to the provisions o f subsection (1), Solicitor-G eneral sha/l- a) N otify any court, tribunal or any other adm inistrative body o f the intention to be join ed to the suit, inquiry or adm inistrative proceedings; and b) satisfy the court, tribunal or any other adm inistrative body o f the public interest or public property involved, and com ply with any direction o f the court, tribunal or any such other adm inistrative body on the nature o f pleadings or m easures to be taken fo r purposes o f giving effect to the effective discharge o f the duties o f the Office o f the Attorney G eneral." It is clear from the above provision that, a notice to the court is required prior to joining of the Attorney General in the proceedings in matters of public interest or property. However, in the present case, nothing is in the record indicating that the appellant issued any notice to the court before joining the Attorney General in the reply to counter affidavit. We further observe that, it is, as well, not clear whether the High Court considered how the Attorney General was joined in the proceedings before granting the appellant leave to appeal to the Court. With respect, we find that, it was a misdirection on the part of the learned High Court Judge. We thus, agree with counsel for the parties that failure to follow proper procedure in including the Attorney General in the proceedings, adversely affected the outcome of the application for leave to appeal to the Court. Since leave to appeal was a mandatory requirement, before filing the present appeal, we find and hold that the appeal before us is incompetent. In the circumstances, we will not determine the remaining grounds of preliminary objection because doing so will serve no purpose. Consequently, we strike out the appeal for being incompetent and order costs for appearance of one advocate for the respondent. DATED at DODOMA this 28th day of February, 2025. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 28th day of February, 2025 via video link in the presence of Ms. Agnes Makuba, learned counsel for the appellant and Mr. Sylivanus Mayenga, Jearned counsel for the respondent, is hereby certified as a true copy of the original.