CANOPIES V TARURA

1 IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM MISC. COMMERCIAL CAUSE NO. 17964 OF 2024 [Application to set aside the Arbitral Award by Eng. Julius Mamiro, Sole Arbitrator dated 21st June 2024] CANOPIES INTERNATIONAL LIMITED .............................. PETITIONER VERSUS TANZANIA RURAL AND URBAN ROADS AGENCY .......................... RESPONDENT RULING Dec. 11th, 2024 & Feb. 21st, 2025 Morris, J The arbitration award dated 21.06.2024 by Eng. Julius Mamiro, a sole arbitrator, is under impugnment by the petitioner above. The latter moves this Court to: set aside the award basing on alleged serious irregularities; order for a fresh arbitration before another arbitrator; grant him costs of the petition; and award him other reliefs as it deems fitting. Unsurprisingly, the petition meets a serious resistance from the respondent on the foundation that the arbitration is free from any misdeeds for the arbitrator complied 2 with the law in arriving at the award. The respondent thus, prays for dismissal of the petition with costs. The facts of this matter are easy to recount. The parties above executed a 10.1 kilometre-road-construction contract on 17.03.2020 (the contract). The contract entailed upgrading of the Lupeta - Wimba - Izumba road to the bitumen standard. The approved cost was around TZS 5 billion. Initially, the contract was for eight (8) months from the date of its execution. However, the petitioner secured seven (7) consecutive extensions of the contract tenure from the respondent up to 24.01.2023. His eighth attempt to extend time for the contract nevertheless, was unsuccessful. The respondent declined on the basis that the petitioner was both untruthful and fraudulent by misrepresenting that execution of the contract was prevented by presence of excessive rainfall in areas surrounding the construction site. Consequently, the respondent terminated the contract. The petitioner was aggrieved. He referred the dispute to the adjudicator per the terms of the contract. He lost. The matter was thus, escalated by the petitioner to the sole arbitrator whose award was, yet again, unfavourable to him. Still resolute, the petitioner’s contentious-efforts have now landed him to the 3 petition at hand. He is again sturdily challenging the arbitrator’s award. In a paraphrased form, the grounds in the petition are that the arbitrator: was biased; disregarded the procedures pre-set by the parties; ignored the pleadings and evidence on record; converted himself into a witness; ordered for production of additional-but-not-pleaded documents; and conducted an illegal site visit after closure of parties’ case. Hearing of the petition was through written submissions. Each side enjoyed representation of the learned counsel. Respectively, the petitioner retained Advocate Edward Chuwa and Messrs. David Z. Kakwaya and Baraka Nyambita, learned State Attorneys acted for the respondent. For the petitioner, it was submitted that he was challenging part of the award. Apart from summarising the arbitral proceedings, the petitioner acknowledged that out of eight applications for extension of the contract- time, the respondent approved the first seven. However, the pivot of the petitioner’s submissions was that the award was procured through procedural irregularities and evident bias by the arbitrator. He argued further that, after each side closed own case on 19.04.2024; and parties ordered to file closing submissions, the case could not be reopened and no evidence 4 could be produced save for reopening the proceedings and recalling the witnesses per the law. The petitioner then asserted that, on the contrary, the arbitrator allegedly acted illegally under rule 7.3 (h) of the NCC Arbitration R ules 2001 Edition (the NCC R ules ), and solicited for additional documents from the respondent. Quoting this provision in extenso, the petitioner contended that the same does not confer the arbitrator with the power to act in the manner that he acted. In addition, he argued that against the express parties’ and arbitrator’s Procedural Order No. 1 (annexure OSG-6); and without according the parties an opportunity of being heard, the arbitrator not only communicated with the respondent unilaterally but also visited the site in dispute “to confirm rainfall data” midst the petitioner’s resistance. To the petitioner, the foregoing unilateral communications and illegitimate site visitation were contrary to item 15 (3) of the First Schedule to the Code of Conduct for R econciliators, Negotiators, M ediators and Arbitrators Regulations , 2021 G.N. No. 148 of 2021; and the cases of CSI Electrical Ltd v Capcon Ltd , Misc. Comm. Cause No. 59 of 2022; 5 and Kim oni Dim itri M antheakis v Ally Azim Dew ji & Others, Civ. Appeal No. 4 of 2018 (both unreported). In another dimension, the arbitrator was faulted by the petitioner on the allegation that he ignored the “parties’ autonomy principle in arbitration” contrary to Articles 19, 2 and 16 of the M odel Law , the Geneva P rotocol , 1923 and the I CDR I nternational Arbitration R ules respectively. Further, he argued that, by purporting to invoke rule 7.3 of the NCC R ules , the arbitrator fell into serious irregularity when he failed to confine himself to the framed issues and proceeded to raise an additional issue regarding the petitioner’s right to the extension of time for which the parties were not heard. According to the petitioner, the arbitrator based his findings on the illegal site visit instead of the evidence on record. Finally, the petitioner humbly reiterated that the prayers in the petition were full of merit. The respondent’s reply submissions in opposition were in two parts. On the one hand, the respondent attacked the appropriateness or competence of the petition and/or the court’s jurisdiction; and the merit of the petition, on the other. Intrinsically, the former contest was fronted in a form of a preliminary objection (PO). The basis of this PO was that the 6 petitioner abused the court process because the reliefs in the award were settled by the respondent before the current petition was filed. Further, the respondent stated that the impugned award hereof had already been registered and recognised as binding and enforceable. The Court’s decision to that effect was handed down on 14.11.2024 vide Misc. Commercial Cause No. 23410 of 2024 between the same parties herein. Hence, to the respondent, the Court was accordingly functus officio. Reference was made to the case of Airtel Tanzania Ltd v KM J Telecom m unication Ltd , Misc. Comm. Cause No. 34 of 2019 (unreported) to the effect that, after registering the award/transforming it into its decree, the respective Court’s jurisdiction becomes blemished by the doctrine of functus officio. Regarding the opposition against alleged merits of the petition, the respondent maintained that the petitioner failed to meet the threshold of section 75 of the Arbitration Act, Cap 15 R.E. 2020 (the Act ) by not proving the alleged serious irregularities in the arbitration under contest. The respondent also argued that, the arbitrator was not biased howsoever. Moreover, it was submitted that the arbitrator correctly ordered the 7 respondent to produce additional documents because the Procedural Order did not oust the former’s mandate under regulation 7.3 of the NCC Rules . In addition, he argued that the petitioner did not state how he was prejudiced by the production of additional documents from the respondent. Further, he submitted that, as the petitioner was fully engaged and did not object the move or address such approach as a concern in his final submissions. To buttress his position, the respondent cited section 80(1)(a)- (d) of the Act and argued that, the subject law bars a party from raising any concern at a later stage which he ought to raise in the arbitral proceedings. Thus, to the respondent, the petitioner was precluded from alleging procedural irregularities for which he had relinquished his right thereof at an opportune time (at the stage of final submissions in the arbitration proceedings). Furthermore, the respondent argued that the alleged unilateral communication between the respondent and the arbitrator was bridging the communication breakdown between the parties in the arbitration. Moreover, he also asserted that the petitioner was kept on notice and hence, he was not privately prejudiced enough to heighten the alleged contention herein 8 (irregularity). Likewise, the respondent asserted that the case of CSI Electrical Ltd (supra) was distinguishable as it related to confidential matters regarding the prospective award; as opposed to the case at hand where the petitioner failed to show that the so-called unilateral communications concerned confidential matters that affected the award. In respect of the site visit, the respondent submitted that, that visit was triggered by the additional documents. To the respondent, the visit aimed at enabling the arbitrator to confirm the relevance of rainfall in the dispute between parties. Moreover, the respondent argued that, the site visit was not contested by the respondent save for the scheduled date. In addition, the petitioner’s argument that the arbitrator avoided discussing the issues framed was argufied by the respondent. To the latter, the petitioner did not prove the issues which were left unanswered by the arbitrator; and/or how the alleged anomaly prejudiced the petitioner. Consequently, the respondent termed the petitioner’s allegations as pure afterthought which is barred under section 80 of the Act . On such note, the respondent prayed that the petition should fail with costs for not being maintainable and/or meritful. 9 The petitioner’s rejoinder submissions were a recap of the submissions in chief and a response to the respondent’s PO. In respect to the PO, the petitioner submitted that the raised aspects were pure points of law that were not only raised as a surprise but also that were supposed to be argued separately by affording the petitioner notice and particulars. Reference was consequently made to the cases of the R egistered Trustees of the Baptist Convention of Tanzania (Jum uiya Kuu Ya W abatisti) v Jam es Kasom i and Others , Misc. Civ. Appl. No. 35 of 2021; and Com m issioner General (TR A) v P an African Energy (T) Ltd , Civ. Appl. No. 206 of 2016 (both unreported) to reinforce a rule that “litigation should be conducted fairly, openly and without surprises”. Even though he prayed that the Court should ignore the PO, the petitioner still proceeded to argue in contest of the same – in details. Moreover, he claimed that he did so on a “without prejudice basis”. He argued further that, the remedy to challenge the award on serious irregularity is a statutory relief. Admittedly, he added that part of the award might have been satisfied but the issue in arbitration was whether the termination of the contract was fair and not on payment of certificates, the 10 accounts, plants or machinery. To him, the petitioner’s right to challenge the award therefrom to this Court was not ousted. In regard to the ground of functus officio, the petitioner submitted that such point was misplaced and the case of Airtel Tanzania Ltd v KM J Telecom m unication Ltd (supra) was distinguishable because it was decided under the old law. According to the petitioner, the current law on arbitration (the Act ) has no provision which bars a dissatisfied party from challenging of the arbitral award upon its being registered in Court [Lukum bulu I nvestm ent Co Ltd v St. Antony Secondary School (unreported)]. That is, the law allows any party (winner or loser) and the arbitrator to apply for registration of the award. Likewise, he was emphatic that, if the submission by the respondent was the correct legal position, the Act would provide so. He argued further that, it would lead to absurdity if the arbitrator registers the award while the parties cannot challenge it. He supported his argument using the case of Lukumbulu Investment (supra) that, registration of the award “does not bar the other side to challenge it. Rather, it is the registration of the award which gives the other party an opportunity to challenge it before the Court.” 11 It was the respondent’s position, as he concluded, that the arbitrator is not mandated to circumvent the law. Hence, the prayers in the petition were recapitulated. Dispassionately, the Court will now embark on the analysis of the parties’ rival arguments. Nevertheless, I am bound to commence with the preliminary points by the respondent. As alluded to earlier on, while responding to the petitioner’s main submissions, the respondent contended that the petition was inappropriate and/or unmaintainable because the reliefs in the award had been settled in full; yet still, the award had already been registered and recognized by the Court for enforcement as its decree; and that the court was thus, functus officio. Typically, and as rightly stated by the petitioner, the Court would otherwise be loath to adjudicate the respondent’s so-called points-turn-PO at the stage which he raised them. Instead of raising the ostensible contention in the form of preliminary objection at the earliest, he presented it in his reply submissions meant for hearing of the petition. That is, at this stage, the respondent was least expected to contest any merits of the petition fronted by the opposite party; not otherwise. 12 Out of obviousness, the approach adopted by the respondent in the foregoing regard is both professionally unhealthy and practically deplorable. This position is based on various reasons. I will account them here and now. Firstly, the adopted tactic by the respondent acts to surprise the opposite party. Visibly, as the objection is raised at the spur of the moment, the opposite party against whom its ‘notice’ was not issued and served from the outset or timely; is left without adequate time to prepare and respond accordingly. Consequently, the latter’s right of being heard and/or the principle of fair hearing is prejudiced. Secondly, the objecting party (probably the respondent, as is the case in the present matter) will submit over the matter which was not registered in the Court before such hearing. Thirdly, the party raising the purported objection engages both the Court and the opposite party with afterthoughts and extraneous matters thereby distracting the coherence of the proceedings. Fourthly, this ill-approach defeats the objective of the PO. Classically, an effective PO leads to termination of the suit/trial without wasting time in determining the merit of the matter. Thus, if the supposed PO is raised tremendously late, the intended mischief is far from being cured. 13 Fifthly and the most serious of all, the party raising and arguing such supposed ‘PO’ usurps the powers of the court illegitimately. That is, he gives himself the mandate to raise and submit in support of matters not before the Court. Notwithstanding the detailed examination above, this Court is inclined to adjudicate on the respondent’s objection on a number of justifying points. To begin with, the doctrine of functus officio is integral to the jurisdiction question. In law, once the Court or adjudicating tribunal makes a decision or gives some orders which finally dispose of the case; and such decision/order is made known to the parties in the respective judicial proceedings, it becomes functus officio to entertain the same or similar matter again. That is, its mandate thereof is consequently exhausted. According to the Black’s Law Dictionary , 9th edition, 2009; the term functus officio entails the Court having performed its function “without further authority or legal competence because the duties and functions of the original commission have been fully accomplished.” The foregoing context is the basis of various judicial pronouncements. See, for instance, Kam undi v R (1973) EA 540; Bibi Kisoko M edard v 14 M inister for Lands Housing and Urban Developm ents and Another [1983] TLR. 250; John M gaya and Others v Edm undi M jengw a and Others , Crim. Appeal No. 8(A) of 1997; TTCL and Others v TRI - Telecom m unication Tanzania Ltd., Civ. Rev. No. 62 of 2006 (the last two, unreported). Further, law is settled in the regard that, a point interrogating the court’s jurisdiction can be raised at any stage of the proceedings. Hereof, I am guided by the cases of M asasi Construction Co. Ltd v P erm anent Secretary, M inistry of Agriculture & Food Security , Civ. Case No. 100 of 2009; M oham ed M oham ed and Another v. Om ar Khatib , Civ. Appeal No. 68 of 2011; Yazidi Kassim t / a Yazidi Auto Electric R epairs v AG , Civ. Appl. 354/04 of 2019; Yussuf Kham is Ham za v Jum a Ali Abdalla , Civ. Appeal No. 25 of 2020; (all unreported). In addition to that, the objection over the court’s jurisdiction is precedent to other contentions. Unpretentiously, the attack on the mandate of the court interrogates such court’s powers to determine any other aspect associated with the matter before it. Besides, regarding the matter at hand, the petitioner had an opportunity to present his arguments in contest against 15 the respondent’s points. That is, he exercised his right of being heard on the raised objection. This Court is aware of the fact that, the petitioner had a right to point out the anomaly of the approach that was adopted by the respondent, as he rightly did in his rejoinder submissions. However, after doing so, he should have exercised the option of imploring the Court to shelf the raised issue and/or seek adjournment in order for him to make necessary preparations before responding to the subject objection. In other words, amongst the purposes of the notice of PO to be given/served to the opposite party at the earliest, is to enable the latter to get ample time to research and prepare himself to address the court on the objection. Nonetheless, as it turned out to be the case in the present matter, the petitioner preferred to respond instantly instead. Hence, he exhausted such remedy. That is, the Court cannot again call upon him to submit on the same matter, unless it requires more details about the subject aspect or objection from either or both parties. With the foregoing discussion in mind, I hereby set the Court to determine whether or not it has the requisite mandate to adjudicate on 16 and/or determine the current petition. To recap, the PO is to the effect that the petitioner has already realized the reliefs in the award thus, he is abusing the court process; and that the Court is functus officio after it registered the award for recognition and enforcement on 14.11.2024 through Misc. Commercial Cause No. 23410 of 2024. While the first limb of the objection is evidence-based, the latter is a pure point of law. On the same footing, the Court will not consider the point calling for proof of facts. This disqualification is well entrenched in our jurisprudence through, for example, M uk isa Biscuit M anufacturing Co. Ltd v W est End Distributors Ltd [1969] EA 696; and Aggreko Energy R entals (T) Ltd v Cata M ining Co. Ltd, Comm. Case No.5 of 2021 (unreported). Hence, the residual point to determine is whether this Court is functus officio post-registration of the award being impugned herein. Before settling on the conclusion on the framed issue the following observations are inevitable. First, it is undisputed that the petitioner filed contemporaneous proceedings in this Court: one seeking to register, recognize and enforce the award; and two, to challenge the award. Second, the former petition was 17 successfully determined in his favour. Apart from taking judicial notice of the its order of 14.11.2024, the Court is aware of the concession of the petitioner’s advocate to this fact in his submissions. He is categorical that this petition (challenging the award) and the other one which was seeking its registration and recognition were running parallel only that they were assigned to different judges. The latter was determined first to finality. Nevertheless, I am not naïve to the settled principle that submissions from the bar are not evidence [Trasafrica Assurance Co. Ltd v Cim bria (EA) Ltd (2002) E.A 627; Bish I nternational B.V. & Rudolf Teurnis Van W inkelhof v Charles Yaw Sarkodie & Bish Tanzania Ltd , Land Case No. 9 of 2006; DPP v Barick Enos M w asaga , Crim. Appeal No. 472 of 2019; Said Sultan Ngalem a v I sack Boaz Ng'iw anishi and Others , Civ. Appl. No. 362/17 of 2021 (all save for the first one, unreported)]. But in this regard, the submissions of both counsel for and against the matter at hand; are considered on a two-pillar basis. To begin with, evidence is required to prove the dispute of the parties. In this connection, parties do not join any issue in this connection. That is, both counsel confirmed that 18 the award was registered by this Court on the stated date. So, this point calls for no proof. It is calm, settled and cool as a cucumber. Further, the point under discussion has a corresponding Court Order of the same date. Hence, it falls within the matters calling for no proof (evidence) as covered under sections 58 and 59 of the Evidence Act , Cap 6 R.E. 2022. Third, following its registration, the award was thencefrom recognised and adopted as the decree of this Court for onward enforcement. That is the law. The essence of registration and recognition of the award is to give it the enforceability status. In other words, the arbitration process is transformed to fruition. The award-turn-decree now ripens for execution. Any aggrieved party thereof must exercise his right to challenge it pursuant to the law thereof. Fourth, there is nothing on record that the award was registered partially. The Court Order mentioned above, for which I have already taken judicial notice, provides in part that because “recognition and enforcement of this Award is not resisted by the Respondent and there is no statutory bar I do hereby make an order for its recognition for enforcement as a Decree of this Court.” 19 Fifth, the Petitioner argued that through the present proceedings, he was challenging part of the award. And that, the law permits such remedy. Moreover, he contended that for him to do so, the award should be registered first. With adequate respect to him, I do not align myself to such argument. In my considered view, when the award is registered, recognized as the court’s decree and thus, enforceable as such; there would only be the court’s proceedings and the resulting decree left to impugn. That is, the aggrieved party would be entitled to challenge the mode of attaining the registration, recognition and enforceability of the award (as the court’s decree) but not the award. That is the essence of one party to challenge the opposite party’s petition for registration, recognition and enforcement of the award. Otherwise put, the court’s decree cannot be confronted by the “reverse engineering” approach: of inversely challenging it wholly or in part through contesting the award. Logically, the court’s decree pronounces the decision of the court in a final, complete and indivisible unit. The philosophy hereof is to obtain the enforceability status of the subject decree. A decree which is vague, indefinite or inconclusive cannot be enforced. 20 The petitioner also argued that the award may be filed in court for registration by the arbitrator. Moreover, he relied on Lukum bulu’s case, (supra) to buttress the contention that the aggrieved party may only challenge the award post registration in court. That assertion is fine. However, in the case at hand, to apply such principle: hook, line and sinker would be erroneous. It has to be borne in mind that, registration alone does not transform the award into the decree of the court. Further processes are required to move the court to arrive at such final stage. It is common understanding that transforming the arbitration award into the court’s decree is a stage-by-stage process. For instance, the award lodged by the arbitrator in the Court does not automatically become a decree upon presentation. Parties thereto must consequently move the Court either for recognition and enforcement or challenge the award. In the present matter, the foregoing processes were completed. That is, the current petitioner did not stop at registration of the award. He obtained the order of the court pronouncing the award as an enforceable decree. Further, contrary to the circumstances in the case of Lukum bulu, (supra) in the matter at hand; it was the petitioner who also successfully sought 21 registration, recognition and enforcement of the award. Simply put, he cannot be referred to as “the other side/party” eligible to challenge the registered award in the context of the cited case. Consequently, such precedent is distinguishable in the matter before me. The above examination in perspective, it is apparent that if this matter were to be processed further on its merits; the petitioner would technically invoke the Court’s powers to challenge its decree in Misc. Comm. Cause No. 23410 of 2024 between the same parties. Hence, the pertinent question stands to be: can the Court determine the present petition without totally traversing on what transpired in its proceedings under the stated Cause? To me, the answer is in the disaffirmation. I will explain below. The award-turn-decree in Misc. Comm. Cause No. 23410 of 2024 is the same that is being challenged hereof. When this Court recorded that the parties did not resist registration and recognition of the award in the former Cause; it was conclusive regarding the parties’ position thereof. Hence, to involve the same Court to determine the contention of the same parties over the same award in a separate-but-related set of proceedings is susceptible to liken the Court to a double-tongued institution. That scheme is, to say the 22 least, illegit. I am accordingly recording my loathness to downgrade this noble Court to such level of lowness. Henceforth, unless the decision of this Court in Misc. Comm. Cause No. 23410 of 2024 is vacated or overturned/quashed first, the Order handed down on November 14th, 2024 is still a valid and binding law; its correctness or otherwise notwithstanding. Predominantly, as the subject decision was made for and in presence of both parties herein, this Court’s hands are yoked in the squares of the functus officio principle. In this regard, I am guided further by the cases of M oham ed Enterprises (T) Lim ited v M asoud M oham ed Nasser , Civ. Application no. 33 of 2012; M aria Chrysostom Lw ekam w a v P lacid Lw aikam w a & Another, Civ. Application No. 549/17 of 2019; North M ara Gold M ine Lim ited v P enina M here W angw e & 31 Others , Misc. Land Appl. No. 29 of 2023(all unreported); and Bibi Kisoko M edard v M inister for Land, Housing & Urban Developm ent & Another [1993] TLR 250. Under the circumstances and reasons given above, the Court is in no better position than to agree with the respondent’s contention that it cannot competently determine the merits of the petition at hand. I find that the 23 respondent’s objection is sound. I hence, proceed to sustain it. In consequence, the framed issue above (if this Court is functus officio post- registration of the award) is confirmed. The petition thus, stands dismissed on the ground of the Court being functus officio. Each party will bear own costs because this objection was raised by the respondent both casually and inordinately tardy. It is so ordered. C.K.K. Morris Judge February 21st, 2025 24 Ruling delivered this 21st day of February, 2025 in the presence of Messrs. Bakari Bakari and Shaban Mdagano, both Principal State Attorneys, for the respondent. Further, Mr. Bakari held the brief of Advocate Edward Chuwa for the petitioner. C.K.K. Morris Judge February 21st, 2025