tanzania petroleum development corporation another vs kilimanjaro oil company ltd 2022 tzhccomd 149 31 may 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 29 OF 2022 BETWEEN TANZANIA PETROLEUM DEVELOPMENT CORPORATION .................................................. 1st APPLICANT THE HONORABLE ATTORNEY GENERAL............ 2nd APPLICANT AND KILIMANJARO OIL COMPANY LIMITED.............. RESPONDENT Date of last Order: 19th May, 2022 Date of Ruling: 31st May, 2022 RULING MKEHA, J: The present application results from the Ruling of this court in Miscellaneous Cause No. 25 of 2020 in which this court set aside the decision of the Arbitrator for failure of the Arbitrator to act within jurisdiction regarding time for concluding arbitration. The decision of this 1 | Page court was delivered on 17th February 2022. Following delivery of the said decision, the applicant lodged notice of appeal. The said notice was lodged at this court's registry on 1st March 2022. Subsequently, the applicant filed the present application seeking leave of this court to appeal against the decision in Miscellaneous Commercial Cause No. 25 of 2020 dated 17th February 2022. The application is made under sections 74 (4) and 75 (4) of the Arbitration Act Cap 15 R. E 2020, Regulation 65 of the Arbitration Rules of Procedure) Regulations (G.N No. 146 of 2021), section 5 (1) (c) of the Appellate Jurisdiction Act Cap 141 R.E 2019, Rule 45(a) of the Court of Appeal Rules, 2019, Order XLIII Rule 2 (2) of the Civil Procedure Code, Cap 33 R.E 2019 and Rule 2(2) of the High Court (Commercial Division) Procedure Rules, 2012. The application is supported with an affidavit of Mr. George N. Mandepo, a Principal State Attorney employed by the office of the Solicitor General who had the conduct of the matter in Miscellaneous Commercial Cause No. 25 of 2020 the decision of which is sought to be challenged to the Court of Appeal of Tanzania. The present application was argued by way of oral submissions. Whereas Ms. Consesa learned State Attorney represented the applicant, Mr. Mayenga learned advocate represented the respondent. 2 | Page In terms of paragraph 18 of the affidavit supporting the application, the applicant intends to move the Court of Appeal to determine illegalities allegedly contained in the decision sought to be challenged to the following effect: (a) Whether the Honorable court was legally justified in setting aside the award by the Arbitrator dated 5th September, 2017 on the ground that the Adjudicator and later on the Arbitrator failed to act within jurisdiction regarding time for concluding the arbitration, constituted a misconduct under section 70 (2) (e) of the Arbitration Act while this ground was not raised at neither the adjudication nor the arbitration stage; (b) Whether the Honorable court was legally justified in holding that the acts of the arbitrator dealing with the award that was decided out of time by the adjudicator amounted to exceeding its powers; (c) Whether the Honorable court erred in law by citing and relying upon a non-existing provision of the Arbitration Act, 2020 in setting aside the award; (d) Whether the Honorable court erred in law in holding that failure by the Adjudicator to act within the mandates of clause 9.4 of the general conditions of the contract rendered his ruling a nullity 3 | Page and the subsequent Arbitration becomes a nullity while the Adjudicator's decision was not part of the contention by the parties at any time; (e) Whether the Honorable court erred in law in finding that failure by the Adjudicator and later on failure of the Arbitrator to act within the jurisdiction regarding time for concluding the arbitration, constituted a misconduct under the provisions of the Arbitration Act while the said provisions of the Arbitration Act does not deal with misconduct of neither the Adjudicator nor the Arbitrator. When the parties were invited to argue the application, Ms. Consesa learned State Attorney commenced her submissions by adopting the affidavit in support of the application. She then made reference to the issues contained in paragraph 18 of the affidavit as listed hereinabove. She was of the firm view that, the issues deserved being considered by the Court of Appeal by way of an appeal. She pressed for leave to appeal. Mr. Mayenga learned advocate submitted in reply by combining sub­ paragraphs (a), (b) and (e) of paragraph 18 of the affidavit supporting the application. In the counter affidavit deponed by one Yuda Moshi, 4 | Page all the contents of paragraph 18 of the affidavit supporting the application had been disputed. In view of the respondent, there were no triable issues worth to be taken before the Court of Appeal. According to Mr. Mayenga, jurisdictional issue, being a point of law, could be raised at any stage of the case. As to citation of non-existent provision of the law, the learned advocate was of the considered view that, in the circumstances of this case, the anomaly could be remedied under section 96 of the Civil Procedure Code. It is true that a decision of this court setting aside or refusing to set aside an arbitral award can be challenged by a party to the arbitration proceedings after obtaining leave of this court to appeal against the said decision to the Court of Appeal. Leave to appeal is normally granted when the intended appeal is considered to be raising issues of general principles or novel points of law demonstrating arguable grounds. On the other hand, leave to appeal may be refused if the intended appeal is considered as raising frivolous, vexatious, useless or hypothetical issues. See: BRITISH BROADCASTING COOPERATION Vs ERICK SIKUJUA NG'MARYO, CIVIL APPLICATION NO. 138 OF 2004, CAT AT DAR ES SALAAM (Unreported). 5 | Page Although five different grounds are listed in paragraph 18 of the affidavit supporting the application, substantially the applicant appears to be challenging this court's decision on two grounds thus raising two important legal issues: (i) Whether the Honorable court was legally justified in setting aside the award by the Arbitrator on the ground that the Adjudicator and later on the Arbitrator failed to act within jurisdiction regarding time for concluding the arbitration which constituted a misconduct under section 70 (2) (e) of the Arbitration Act while this ground was not raised at the adjudication and arbitration stages. (ii) Whether the Honorable court erred in law by citing and relying upon section 70 (2) (e) of the Arbitration Act, 2020 in lieu of section 75(2) (e) of the Arbitration Act, Chapter 15 Revised Edition, 2020. It is true that neither the Adjudicator nor the Arbitrator dealt with the jurisdictional issue during the adjudication and arbitration stages. It is equally true that, the arbitral award relating to this case was set aside on the basis of exceeding jurisdiction on part of the Adjudicator and later on the Arbitrator. As such, it is indeed necessary that this issue 6 | Page be referred to the Court for it to determine whether this court was justified or not to set aside the arbitral award on the basis of exceeding jurisdiction on part of the Adjudicator and Arbitrator regarding time for concluding the arbitration. Again, there is no denial that, in citing a provision of the law on strength of which the arbitral award was set aside, the court inadvertently cited section 70 (2) (e) of the Arbitration Act, 2020 in lieu of section 75 (2) (e) of the Arbitration Act, Chapter 15 Revised Edition, 2020. It is therefore necessary for the said legal issue to be referred to the Court of Appeal to have its decision on whether the citation was fatal, in the circumstances of this case whereby in the revised edition of the Arbitration Act, 2020 a provision with similar wording with section 70 (2) (e) of the Arbitration Act, 2020 is found, the only difference being on numbering of provisions. The two points being legal points can be determined by the appellate court on appeal. For the foregoing reasons, I grant leave to appeal to the Court of Appeal of Tanzania. I make no order as to costs. DATED at DAR ES SALAAM this 31st day of May, 2022 7 | Page C.P MKEHA JUDGE 31/05/2022 Court: Ruling is delivered in the presence of Ms. Shao learned State Attorney for the applicants and Ms. Rosaria learned advocate holding brief of Mr. Mayenga learned advocate for the respondent. JUDGE 31/05/2022 8 | Page