Voltalia S. A. France vs Nextgen Solawazi Limited (Civil Appeal No. 272 of 2019) [2026] TZCA 584 (18 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA, 3.A.. MASHAKA, J.A. And ISSA, J.A.l CIVIL APPEAL NO. 272 OF 2019 VOLTALIA S. A. FRANCE .......................................................... APPELLANT VERSUS NEXTGEN SOLAWAZI LIMITED............................................. RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Sehel, 3.1 dated the 13th day of December, 2018 in Miscellaneous Commercial Cause No. 01 of 2018 RULING OF THE COURT 10th October, 2025 & 18th May, 2026 MWARIJA. J.A.: The respondent, Nextgen Solawazi Ltd was the petitioner in the High Court of Tanzania, Commercial Division in Commercial Cause No. 1 of 2018 (the Petition). It was filed against the appellant, Voltalia S. A. France after a dispute which arose from enforcement of the Engineering, Procurement and Construction Contract (EPC) agreement entered on 4/12/2016 between the respondent and Voltalia Portugal (formerly known as Mortifer Solar S. A). l

The latter was hired to undertake the works of design, engineering, procurement and construction of photovoltaic (PV) facility (solar energy facility) and transmission line connecting the PV facility with a 33 kilovolt (KV) transmission line to be constructed by the Tanzania Electric Supply Company (TANESCO). In the petition, which was predicated under section 4 of the Arbitration Act, Chapter 15 [R.E. 2002] (now repealed), the respondent sought the following orders: "This Honourable court be pleased to revoke the submission clause in EPC contract subject o f this petition and make orders that: (i) the dispute be filed in the court o f relevantjurisdiction in the United Republic o f Tanzania or in the alternative; (ii) the court appoints an arbitral forum within the United Republic o f Tanzania to determine the dispute; (Hi) that this Honourable court be pleased to issue Interim order(s) against the respondent, the petitioner, their agent, officer or any other person acting on their behalf from taking steps or pursuing, prosecuting, defending or submitting to 2

the jurisdiction o f and/or in other tribunal or forum pending final determination o f the dispute(s) in the appointed forum of the United Republic o f Tanzania." The clause of the EPC agreement which the respondent sought to be revoked, that is; clause 19:4, provided as follows: "19:4. Unless settled amicably under clause 19:2 and/or 19:3, any dispute arising out o f or in connection with this agreement (including a dispute, difference, controversy or claim regarding the existence, interpretation, validity, performance, breach or termination o f this Agreement or a dispute difference, controversy or claim relating to any non-contractual obligations arising out o f and in connection with this Agreement) shall be finally settled according to arbitration procedures at the International Chamber o f Commerce, whereby arbitrators shall be appointed in accordance with the applicable rules. The arbitration shall take place in London, UK and the procedure unless otherwise agreed to in writing by the Parties, shall be entirely conducted in the English language." 3

In response to the petition, the appellant raised a preliminary objection consisting of three grounds as follows: "(a)That the petition is bad in law, misconceived for being preferred against the stranger thus making the Honourable court lack jurisdiction to grant the orders sought in the petition. (b) That the petitioner has improperly moved this Honourable court by citing wrong provision o f the law; and (c) The petition is incurably defective for want o f certification o f the annextures in terms of rule 8 o f the Arbitration Rules." Having heard the parties' arguments on the preliminary objection, the learned trial Judge overruled it on account that, it lacked merit. On ground (a) thereto, she found that, its determination required evidence and thus could not be treated as a pure point of law in terms of the authority of the famous case of Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd [1969] E.A. 696. She observed as follows in her ruling at page 510 of the record of appeal: "... there is no flicker o f doubt that this court will require evidence to ascertain the truth of 4

the matter, in his submission the iearned counsel for the respondent submitted that the petition has been preferred against Voitaiia S. A. France while the agreement subject o f EPC agreement is between the Voitaiia S. A. Portugalthe way I see this it means in order for this court to do justice it will need the evidence to justify each ones argument In doing that I find myself calling for evidence to negate or support each parties take o f the matter. I am not ready to [do] that at this preliminary stage o f hearing the preliminary point because that will amount to opening endless submissions which is not the purpose o f the law." With regard to ground (b) of the preliminary objection, which arose from prayer (b) in the petition, the learned trial Judge found that, because the court had directed that the prayer for temporary injunction be formerly filed as a separate application, then that ground was misconceived. As for ground (c) which challenged the competence of the petition on the ground that, it offended the provisions of rule 8 of the Arbitration Rules for failure by the petitioner to annex a certified copy of the submission, the court found that, although the annexed 5

copy was not certified, since the parties did not dispute its existence, the omission was not fatal. After having disposed of the preliminary objection in the manner stated above, the learned trial Judge proceeded to hear the petition on merit. At the conclusion of the hearing, she allowed it, granted prayer (a) thereto and proceeded to revoke clause 19:4 of the EPC agreement. The appellant was aggrieved by the decision of the trial court and has thus preferred this appeal raising a total of 10 grounds of appeal. At the hearing of the appeal, the appellant was represented by Mr. Gerald Nangi, learned counsel while the respondent had the services of Mr. Jovinson Kagirwa, learned counsel. After service upon him of the record of appeal, the learned counsel for the respondent challenged its competence through a preliminary objection consisting of the following two grounds: "1. That in terms o f section 96 (4) o f the Arbitration Act Cap 15 [R.E. 2023] this appeal cannot be determined by the Court in the absence o f the new Act 2. The Court has no jurisdiction to entertain this appeal for being [an] academic exercise."

Submitting in support of the 1s t ground of the preliminary objection, Mr. Kagirwa argued that, following the repeal of the Arbitration Act, Cap. 15 [R.E. 2002] (hereinafter the 2002 Revised Edition), the provision governing revocation of clauses in the arbitration agreements was removed. As a result, he said, the appeal is superfluous because in the reenacted Arbitration Act, Cap. 15 [R.E. 2023] (hereinafter the Act), the provision akin to section 4 of the 2002 Revised Edition under which the ruling giving rise to this appeal was made, does not exist. Citing the case of George Moshi v. Republic (Criminal Appeal No. 517 of 2016) [2019] TZCA 774, he contended that, the repealed section ceased to be applicable save for any savings which have been stated in the Act. In the above cited case, the Court described the status in law, of a repealed law by citing with approval paragraph 1296 of volume 44 (1) of the Hulsbury's Law of England, 4th Ed. as quoted by the High Court of Kenya in the case of Republic v. Kenya Anti- Corruption and Others Ex-parte Okoth [2006] 2 E.A. 275. That paragraph reads as follows: " To repeal an Act is to cause it to cease to be part o f the corpus juris or body o f law. The

general principle is that except as to the transactions past and closed, an Act or enactment which is repealed is to be treated thereafter as if it had never existed. However, the operation o f the principle is subject to any savings made, expressfy or by implication, by the repealing enactment and in most cases is also subject to the general statutory provisions as to the effect o f repeal." Relying further on the provisions of section 96 (4) of the Act, he submitted that, since the arbitration proceedings were not concluded, the same shall be proceeded with under the Act. He argued further that, in order to resort to section 96 (2) of the Act, which recognizes all things done under the repealed Act as having been done under the new Act, there should have been a saving provision to that effect in the Act, meaning that, the provisions akin to section 4 of the 2002 Revised Edition should have been retained. To bolster his argument, the learned counsel cited sections 30 and 31 of the Interpretation of Laws Act Cap. 1 [R.E. 2023]. With regard to section 32 of the Act, which is a saving provision he submitted that, the same is a general provision and thus inapplicable in the particular circumstances of this case because,

section 96 of the Act, which is a particular provision, overrides that section as far as the powers of the court in revoking a submission clause in EPC agreements is concerned. He cited the case of Tanzania Teachers Union v. Chief Secretary and Others (Civil Appeal No. 96 of 2012) [2017] TZCA 1118 regarding the principle of harmonious construction of statutes. Concluding on that ground, he submitted that, appealing against a ruling which was made under the repealed provision of the law is an abuse of the court process and the appeal arising therefrom is for that reason untenable. On the 2n d ground of the preliminary objection, Mr. Kagirwa argued on the mootness doctrine. He submitted that, after the repeal of the reenactment of the Arbitration Act Cap. 15 R.E. 2023 in which, the provisions of section 4 of the repealed Act was not retained, the appeal which arose from that provision becomes redundant because in any case, in terms of section 96 (4), the arbitration has to be proceeded with under the new Act. He added that, the dispute was on the powers vested in the court by section 4 of the 2002 Revised Edition and so, after such repeal, there can no longer be a dispute on that aspect. Citing the cases of Voitaiia S.A. France v. Nextgen Solawazi Limited (Civil Appeal’ No. 444 of 2021) [2024] TZCA 1092

and Sunlife Assurance Company of Canada v. Jervis [1944] All ER Vol. 1, he prayed that the appeal be struck out. Responding to the submissions made by the learned counsel for the respondent in support of the 1st ground of the preliminary objection, Mr. Nangi opposed the contention that, after the repeal of section 4 of the 2002 Revised Edition and because the provision akin to that of the repealed section was not included in the new Act, this Court, lacks jurisdiction to entertain the appeal originating from the ruling made under the repealed section. He insisted that, the jurisdiction of the court is derived from the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws and for that reasons, the fact that the powers of revoking a clause of EPC agreements were not saved under section 96 of the Act, does not oust the Court's jurisdiction to entertain the decisions arising from the repealed section. The learned counsel stressed that, section 96 of the Act did not deprive the Court of its jurisdiction to entertain the appeal. He replied further that, the respondent had raised a point that it was not a party to the EPC agreement and maintains that complaint. On the cited case of George Moshi (supra), it was Mr. Nangi's position that, the same is distinguishable. 10

On the arguments made in support of the 2n d ground of the preliminary objection, Mr. Nangi replied that, in the case of Voltalia Portugal (supra) relied upon by the respondent's counsel, regarding the point that, after revocation of section 4 of the EPC agreement, similar appeal arising from the same proceedings instituted after the revocation, the Court ordered the return of the record to the trial court for proper resolution of the application for registration of the arbitral award. The application had previously been dismissed by the trial court on the ground that, the Court did not have jurisdiction because the submission clause (clause 19.4) had been revoked by the trial court. According to the learned counsel, in that case, the court found that, there was a dispute as regards the parties to the application before the trial court. He however, submitted that in the case at hand, an objection was raised to the effect that, the respondent was not a party to the EPC agreement. Submitting further, Mr. Nangi contended that, despite the repeal of section 4 in the 2002 Revised Edition, the power of revoking a clause of an arbitration agreement is provided for under section 34 of the Act which vests power to the arbitral tribunal whose decision is subject to appeal in accordance with the provisions li

of the Act. On the basis of the foregoing submissions, Mr. Nangi prayed that the preliminary objection be overruled. In rejoinder, Mr. Kagirwa responded briefly on the contentions about the propriety or otherwise of the parties to the petitions and the scope of section 34 of the Act. He argued that, the parties in Civil Appeal No. 444 of 2021 are the same as in the present appeal. On the provisions of section 34 of the Act, it was his submissions that, the same does not vest the court with the power of revoking a clause of EPC agreements, similar to that which was previously exercised under the repealed section 4 of the 2002 Revised Edition. He reiterated his prayer that the appeal be struck out. We have duly considered the rival submissions of the learned counsel for the parties. As shown above, the 1st ground of the preliminary objection was based on the provisions of section 96 of the Act. The section provides for continuity and/or preservation of the arbitration proceedings or decisions arising therefrom. It states that: "96 - (1) [Repeals the Arbitration Ordinance]. (2) Anything done or concluded under the repealed Act or regulations shall be 12

deemed to have been done or concluded under this Act. (3) Any arbitration arrangement concluded before the coming into effect o f this Act which has not yet materialized shall be renegotiated and brought in line with this Act (4) Any proceedings pending shall be proceeded in the light of this Act. (5) Any award which has been granted shall be deemed to have been granted under this Act." It is not in dispute that the Arbitration proceedings were, until the material time, pending determination. We therefore agree with the respondent's counsel that the applicable provision is section 96 (4) of the Act, that after the same have to be continued in accordance with the provisions of the Act. We are, however, unable to agree with him that, this appeal should be terminated because, after the repeal of section 4 of the 2002 Revised Edition, a provision akin to that section was not substituted. The reason is not farfetched. The ruling giving rise to the appeal is not redundant as submitted by the learned counsel for the respondent. Although the effect of the repeal of the said section 4 13

was to render it to cease to exist as described in the case of George Moshi (supra), the ruling remained in force, binding the parties. This is clear from the provisions of section 96 (2) of the Act which has been reproduced above. As stated earlier, the ruling was on the preliminary objection in which, among other grounds, the respondent complained that, it was not a party to the EPC agreement and for that reason, it was not affected by the revocation of the submission clause to which it was a stranger. Unfortunately, that point of the preliminary objection was not determined. Without doing so, the court proceeded to decide the petition on merit. In its ruling at page 510 of the record of appeal, the court observed as follows: " There is no flicker o f doubt that this court will require evidence to ascertain the truth o f the matter, in his submission the learned counsel for the respondent submitted that the petition has been preferred against Voltalia S. A. France while the agreement subject o f EPC agreement is between Voltalia S. A. Portugal, the way I see this it means in order for this court to do justice it will need the evidence to justify each ones argument In doing that I find myself calling for

evidence to negate or support each party's take o f the matter." Notwithstanding the omission to determine the issue, the learned trial Judge went on to observed as follows in the ruling: "From the outset, iet me state that issues of petition brought against a stranger have been determined while dealing with the preliminary objection." With respect, it was important to determine the issue whether or not the respondent was a party to the EPC agreement. From the first excerpt above, that issue was not finally determined. The decision was deferred on account that, it required evidence. In such a situation, we are constrained to hold, with respect, that the learned trial Judge strayed into an error. The effect is to remit the record to the trial court for determination of the issue in question. See for instance, the cases of Truck Freight (T) Ltd v. CRDB Bank Ltd, Civil Application No. 157 of 2007, Metro Petroleum Tanzania Limited and Others v. United Bank of Africa, Civil Appeal No. 147 of 2019 and Alnoor Shariff Jamal v. Bahadir Ebrahim Shamji, Civil Appeal No. 25 of 2006 (all unreported).

That said, we allow the appeal, quash the ruling of the trial court and set aside the orders arising therefrom. The record to be remitted to the trial court for it to determine the issue whether the respondent was a party to the EPC agreement and make appropriate decision on the petition depending on the outcome of the preliminary objection. In the circumstances of the case, we make no order as to costs. DATED at DODOMA this 27th day of April, 2026. A. G. MWARD A JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Ruling delivered this 18th day of May, 2026 in the presence of Mr. Jeremiah Tarimo, learned counsel for the appellant and Mr. Jovinson Kagirwa, learned counsel for the respondent connected via video conference and Ms. Nise Mwasalemba, Court Clerk, is hereby certified as a true copy of the originaf. \ / O