MISC NO 20448 OF 2024 DAVID CHIMFWEMBE VRS ZAMBIACARGO LOGISTICS LIMITED 0001

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION)

AT DAR ES SALAAM MISC. LABOUR APPLICATION NO. 20448 OF 2024 CASE REFERENCE NO. 202408211000020448

AND

IN THE MATTER OF THE ARBITRATION AND IN THE MATTER OF THE ARBITRATION ACT, CAP. 15 RE 2020

BETWEEN DAVID CHIMFW EM BE..........................................................PETITIONER

VERSUS ZAMBIA CARGO & LOGISTICS LIM ITED.......................... RESPONDENT

RULING Date of last Order: 10/ 02/2025 Date of Ruling: 27/ 02/2025 MLYAMBINA, J. Before embarking to the merits or demerits of the application, I find it appropriate to narrate the brief facts leading to this application as obtained from the records. The Petitioner was employed by the Respondent as a Chief Executive Officer ("CEO") for a three-year employment contract that was renewed several times upon expiry in 2017, 2020 and 2023. Before the expiry of the employment contract on 16th March 2023, the Petitioner, as per Clause 12 of the employment contract (Annexure DC2 to the petition), issued a notice of intention to renew the employment contract. Through a board resolution (Annexure DC3), the Respondent renewed the employment contract for another l three years, from 16th March 2023 to 16th March 2026. It is further alleged that, through a letter dated 4th May 2023, the Respondent wrongfully and unfairly terminated the Petitioner's employment contract. After the parties failed to reach a consensus, the Petitioner referred the dispute to arbitration as per Clause 14 of the employment contract, in which the Chartered Institute of Arbitrators, Zambia Branch was the Arbitral Institution selected by the parties to conduct the arbitration. The Arbitrator was appointed, and the hearing process commenced and was finalised by the Arbitral Tribunal issuing its final Award on 5th

February 2024, holding that the Petitioner's employment contract dated 14th March 2020 that was to expire on 14th March 2023 was renewed for three years on the same terms and conditions and thus, the Respondent wrongfully terminated the employment contract. The Arbitral Tribunal also ordered the Respondent to pay the Petitioner 24 months' salary with all perks and simple interest from 1 June 2023 to the payment date. The Tribunal went further to order the Petitioner to be paid 7 months' salary plus perks as per Award clause 6.2.4. The Respondent was also ordered to pay the recoverable costs of arbitration to the tune of USD$29,652.34 with simple interest from 1 March 2024. After the Respondent refused to comply with the Award of the Arbitral Tribunal, the Petitioner proceeded to file an application for registration and enforcement of the Award before the High Court of Tanzania (Commercial Division) at Dar es Salaam, which was registered as Miscellaneous Application No. 6267 o f2024 that the Court struck out for the reasons which will be apparent herein. After the petition was struck out, the Petitioner approached the doors of the Arbitral Tribunal and applied for rectification of the Respondent's name in the Award. The Arbitral Tribunal proceeded to issue the corrected final Award dated 29th July 2024, to which the Respondent's name was rectified to read as Zambia Cargo and

Logistics Limited as appearing in the proceedings, and 29thJuly 2024 was issued with a correct final Award issued by the Arbitral Tribunal. After the Applicant was issued with the corrected Award, the Petitioner filed this petition before the Court seeking for: (a) This honourable Court to recognize the Final Award issued on 29th July 2024 as binding and enforceable in terms of Section 78(1) of the Arbitration Act, 2020. (b) Costs of this Petition; and (c) Any other reliefs this Honourable Court may deem fit to grant. The application was disposed by way of written submissions. In the conduct of this case, the Applicant enjoyed the services of Mr. Juvenalis Ngowi, Learned counsel. While Mr. Yohanes Konda and Butogwa Mbuki, Learned counsel appeared for the Respondent. Arguing in support of the application Mr. Ngowi submitted that; according to Section 73(1) and 83(1) o f The Arbitration Act [Cap 15 Revised Edition 2021] (herein Cap 15 Revised Edition 2021) this Court has the jurisdiction to recognize and enforce foreign Arbitral Award. He further submitted that according to Rule 66(3) o f The Arbitration (Rules o f Procedure) Regulation 2021, arbitral Awards may be enforced. The provision is hereunder reproduced for easy of reference: In order for a foreign Award to be enforceable under the Act and these Regulations, it shall- a. have been made in pursuance of an agreement

for arbitration which was valid under the law by which it was governed; b. have been made by the arbitral tribunal provided for in the agreement or constituted in manner agreed upon by the parties; c. have been made in conformity with the law governing the arbitration procedure; d. have become final in the country in which it was made; Regarding the first condition, counsel Ngowi submitted that, the arbitration clause was established based on the laws of Zambia, specifically under The Arbitration Act No. 19 o f2000 o f Zambia. That in this case, Clause 14 of the employment contract (Annexure DC 2) explicitly provided for arbitration as the method of resolving any disputes arising from the contract. Upon review, the Arbitral Tribunal scrutinized the arbitration agreement and concluded that it had jurisdiction to hear the dispute as provided for in the arbitration clause. This is reflected in part 2.11 of Partial Award No. 1 (Annexure DC). On such basis, it is evident that the arbitration agreement was valid and enforceable. As to the second condition, it was counsel's Ngowi firm submission that Arbitration Tribunal was properly constituted. The Arbitration Tribunal was composed under Section 12(3)(b) o f the Arbitration Act No. 19 o f 2000 o f Zambia, under which the Charted Institute o f Arbitrators (CIArb) Zambian Branch appointed an Arbitrator. On 30th August 2023, the

President of the CIArb Zambia Branch appointed Leornard Nkole Kalinde, who accepted the appointment on 4th September 2023. Coming to the third condition, it was submitted that the Award has been issued in compliance with the CIArb Rules. The Arbitral Tribunal was constituted under the CIArb Rules, with the Arbitrator duly appointed per the parties' agreement. In addition to that, the arbitration proceedings were conducted strictly in conformity with the CIArb Rules, ensuring procedural fairness and adherence to due process. Further, both parties were duly notified of all proceedings and hearings and were given equal opportunities to present their case, submit evidence, and respond to the other party's submissions. It was added that the Award was issued in writing, signed by the Arbitrator, and clearly stated the reasons for the decision, in compliance with CIArb procedural requirements and that the Award was communicated to both parties, and it is final and binding, as stipulated by the CIArb Rules and the arbitration agreement. As to the fourth condition, counsel Ngowi argued that; according to Section 20 o f the Arbitration Act No. 19 o f 2000 o f Zambia, an Award made by an Arbitral Tribunal pursuant to an arbitration agreement is final and binding on the parties and any person claiming through or under them. That on 29th July 2024, the Arbitral Tribunal issued a

corrected final Award (annexure DC 10), binding and final on the parties. Thus, the Award has complied with the requirement for registration and enforcement of foreign arbitral Awards. Counsel Ngowi also responded to the issues raised by the Respondent. As to the claim to have applied to set aside the Final Award, He submitted that the Respondent has misconceived. There is no Application challenging the Final Corrected Award, which is intended to be recognised and enforced. On the issue regarding the procedure for correction of the Arbitral Award, it was argued that throughout the process of initiating the application for a corrected arbitral Award, all due procedures were well carried out in conformity with the laws. He added that in any event, assuming the procedures were not followed, it was for the Respondent to challenge the Corrected Final Award using proper procedure and before a proper forum. In the upshot, counsel Ngowi urged the Court to grant the application. Regarding the Respondent claims to have applied to set aside the Final Award, it was submitted that the Respondent has misconceived. That, there is no Application challenging the Final Corrected Award which is intended to be recognised and enforced. In response to the application, Counsel Konda disputed at length the Applicant's assertion that the application for correction of the Arbitral Award was done after

Miscellaneous Application No. 6267 o f 2024 filed at the High Court of Tanzania Commercial Division was struck out. He stated that Miscellaneous Application No. 6267 o f 2024 \ n z s struck out on 25/06/2024 and not withdrawn as alleged by the Applicant. Counsel Konda further elaborated that application for rectification of arbitration Award was made on 21/05/2024 which was prior to the striking out order. Counsel Konda submitted further that, the Petitioner knew that by correcting the typographical errors in the final Award and the Arbitral Tribunal issuing a corrected Award, the said corrected final Award did not become a new final Award different from the previous Award dated 5th February 2024. He said, the correction of the typographical error in the final Award dated 29th July 2024 did not cease the validity of previous final Award dated 5th February 2024. What was done in the Corrected Final Award dated 29th July 2024 was the substitution of the words "Zamcargo and Logistics Limited" wherever these words appeared with the words "Zambia Cargo and Logistics Limited" only. It was submitted that the Respondent is challenging the said final Award vide Application No. 2024/HP/ARB/No.008 pending for determination before the High Court of Zambia before the Principal Holden at Lusaka that was filed on 26th April 2024. The application was served to the Petitioner who in response

filed an application for security for costs requesting the Respondent to deposit $26,312.28 comprising of the taxed costs in the final Award and the Petitioner's anticipated costs amounting to$ 10,000,000 to defend the Respondent's Application as evidenced in paragraphs 7 and 8 of the Respondent's reply to petition together with Annexure 2 and Annexure 3. That, the said Petitioner's application for costs came for ruling before Honourable Justice Charles Zulu on 28th November, 2024 who allowed the application and ordered the Respondent in the matter at hand, to pay Court security for costs in the sum of K280,000.00; that is payable within 20 days from 28th November 2024. The Court further ordered the proceedings in Application No. 2024/HP/ARB/NO.008, an application filed by the Respondent to set aside an Arbitral Award be stayed until when the said ordered security for costs is paid by the Respondent. Thus, this petition is prematurely filed which needs to be punished by the law. Counsel Konda argued that the law is very clear that where the Foreign Award is being challenged or has not yet become final, the Court in Tanzania will refuse to recognize and enforce it. In support of his argument, he cited Section 83(2)(vi) and 83(4)(e) o f Cap 15 Revised Edition 2020. He further submitted that the Petition has not proven that the alleged final Award has met the conditions stipulated

under Regulation 66(3)(d) and 66(4) o f the Arbitration (Rules and Procedures) Regulations. It was also submitted by Counsel Konda that the Petitioner has failed to comply with the applicable law in Tanzania especially Regulation 66(4) (supra) that requires the Petitioner, among other things, to provide evidence proving that the Award has become final. What the Petitioner has done is only to show that the alleged Award has been registered which has nothing to do with the requirement stipulated under Regulations 66(3) (supra). Counsel Konda added that in Misc. Commercial Cause No. 22 of 2021 between Vodacom Tanzania Public Limited Company v. Shivacom Tanzania Limited/ HC at Dar es Salaam, at page 20 of the judgement, the Court was of the view that Annexure P3 cannot be termed as a proof that the Award became final and it cannot be a modality of proof which will show that the Award has become final. In conclusion counsel Konda urged the Court to find that the corrected final Award dated 29th July 2024 did not cease the validity of the final Award dated 5th February 2024. He further prayed that the Petitioner's petition be punished by the law for being brought premature. I have dully considered the rival submissions of the parties as well as the rejoinder submission of the Petitioner in which he cemented that the final Award has never been challenged. The Court will first

address the issue raised by the Respondent; whether the application is prematurely filed before this Court. As rightly submitted by both parties, this Court is envisaged with power to recognize and enforce a Foreign Arbitral Award under the provision of Section 83 o f Cap 15 Revised Edition 2020. The conditions upon which a foreign arbitral Award may be enforced are provided under Regulation 66(3) o f GN. No. 146 o f 2021. The respondent herein challenges this application for the partitioner's failure to comply with Regulation 66(3)(d) (supra). The provision makes a condition for the Arbitral Award to be final in the Country in which it was made. Counsel Konda strongly submitted that the Award is not final because there is a pending application before the High Court of Zambia at the Principal Holden at Lusaka that was filed on 26th April 2024. On the other hand, the Petitioner maintains that the application before the High Court Zambia is in respect of the Arbitral Award dated 5th February 2024 and not the final Award dated 29th July, 2024. I have thorough perused the records, the first Award was delivered on 5th February 2024 and had typographical errors which moved the Petitioner to apply for rectification, hence the final Award was delivered on 29th July, 2024. The record shows that in the Arbitral Award dated 5th February 2024 the following reliefs were granted: The

Claimant's Contract of Employment, dated l(jlb March 2020, which was envisaged to expire on 16th March 2023, was renewed for another term of three years on the same terms and conditions. The Claimant's Contract of Employment dated 16th March 2020, which was renewed for another term of three years, from 16th March 2023i was wrongfully terminated by the Respondent through its letter of 4th May 2023. As a consequence of this wrongful termination of the Claimant's Contract of Employment, which was renewed for another term of three years, from 16th March 2023. the Respondent shall pay the Claimant two (2) years' salary with all other perks together with simple interest thereon at the Bank of Zambia Policy Rate per month from 1st June 2023 until payment. The Respondent's delay to pay the Claimant his pension benefits triggered the application of Article 189 of the Zambian Constitution (Amendment) Act No. 2 of 2016. The Respondent shall pay the Claimant recoverable costs of this arbitration in the sum of USD$ $29,652.34 together with simple interest thereon at the Bank of Zambia Policy Rate per month from 1st March 2024 until payment. Again, in the corrected final arbitral Award issued on 29th July, 2024 among the orders granted interalia was that: This Corrected Final Arbitral Award shall be read as one with the Final Arbitral Award, delivered herein on 5th February 2024. On the

basis of the above order, it is my view that the Arbitral Award dated 5th February 2024 and the one dated 29th July, 2024 are the same. The corrected Award only amended the name of the Respondent but the reliefs granted remained unchanged. On such circumstances, since it is not disputed that the respondent filed an application to set aside the arbitral Award dated 5th February 2024 which has the same reliefs granted in the corrected Award then, there is no final decision regarding the matter at hand. Hence the matter is prematurely filed as raised by the Respondent. The Petitioner's assertion that the final arbitral Award dated 29th July 2024 has never been challenged is misconceived. Both Awards read as one and they have the same impact they are thus inseparable. Thus, the requirement under Regulation 66(3)(d) (supra) is not fulfilled yet. In the premises, the application is hereby struck out from the Court's registry for being prematurely filed. It is so ordered. Y. 1 MLYAMBINA

JUDGE 27/02/2025 Ruling delivered and dated 27th February, 2025 in the virtual presence of Alex Mianga, Advocate and Yohanes Konda and Butogwa Mbuki, Advocates for the Respondent.