Siemens Ltd & Another vs Mtibwa Sugar Estates Ltd (Civil Application No. 106 of 2016) [2020] TZCA 1819 (15 October 2020)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA. J.A.. KOROSSO. J.A. And LEVIRA, J.A.^ CIVIL APPLICATION NO. 106 OF 2016 SIEMENS LIMITED ..................................................... ...... 1 st APPLICANT SIEMENS (PROPRIETARY) LIM ITED ........... .......................2 nd APPLICANT VERSUS MTIBWA SUGAR ESTATES LIM ITED ..... . ................................. RESPONDENT (Application for Revision of the decision of the High Court of Tanzania at Dar es Salaam) (Mwambeqele. J.) dated the 18th day of February, 2016 in Misc. Commercial Cause No. 247 of 2015 RULING OF THE COURT 17th August, & 15th October, 2020 LEVIRA, J.A.: The applicants, Siemens Limited and Another move the Court by notice of motion made under the provisions of Section 4(3) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002, Rule 65(1), (2) and (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules), to call for and examine the record of the proceedings of the High Court of Tanzania (Commercial Division) at Dar es Salaam (the High Court) in Miscellaneous Commercial Cause No. 247 of 2015 so as to satisfy itself as to the correctness, legality or propriety of the findings and order l

given in the ruling dated 18th February, 2016. The notice of motion is supported by an affidavit duly deposed by Mario Ricardo Stevens, the Principal Officer of the first applicant. A brief background of this matter is to the effect that, on 6th September, 2011 the parties herein entered into a written agreement for electrification works. It was an agreed term of the agreement that matters arising from the agreement which would not be settled by negotiation or through mediation would be referred to arbitration which was to be held in accordance with expedited rules of the Arbitration Foundation of Southern Africa, in English and at Johannesburg. A dispute arose within the terms of the Agreement and pursuant to the said terms, the matter was referred to the Arbitrator. On 13th February, 2015, the Arbitrator passed the Final Award. By letter addressed to the Registrar of the High Court, the Arbitrator requested the Registrar to file the Award in Court. On 30th September, 2015 the notice to appear was issued to the parties by the High Court. It is noteworthy, that at the time the said notice to appear was issued, there was no petition seeking for any relief filed by the applicants before the High Court. On 23rd October, 2015 the applicants filed a petition to the High Court seeking among others, an order to register the Award dated 13th 2

February, 2015 as a decree of the court and for the enforcement thereof. In reply to the petition, the respondent filed preliminary points of objection on the grounds that:-

1. The filin g o f the Aw ard in court was tim e barred as it was fifed after six m onths from the date it was made contrary to the m andatory provision o f Item 18 o f the First Coium o f Part III o f the F irst Schedule to the Law o f Lim itation Act, Cap 89 R.E. 2002 .
2. That copies o f the proceedings and an Aw ard annexed to the petition has not been certified by the petitioners or its advocate. As it is required, at first, the High Court determined the points of preliminary objection raised by the respondent. In its Ruling on the said preliminary points of objection raised, the High Court sustained the objections and dismissed the applicants' petition and hence, the current application. The current application is resisted by the respondent who filed an affidavit in reply duly deposed by Sylivatus Sylivanus Mayenga, learned advocate on behalf of the respondent. The applicants' application is predicated on the following grounds:-
3. That; the respondent had objected the applicants' petition on two grounds- a) That the award was file d after six m onths from the date it was made on 13th February, 2015. 3

b) The docum ents annexed to the applicants' petition were not certified in contravention to the Arbitration Ruies but the Judge faulted or more properly ignored the applicants subm issions when he held that the applicants' argum ents were as if the Respondent had challenged the propriety o f the filin g o f the award, which according to the Judge was not the case - this was erroneous but it fed the Judge dism issing the applicants' petition for being file d out o f tim e while the A pplicants' petition was file d on 2 3 d October, 2015 within 23 days o f receiving the court's notice o f filin g o f the award. 2. The learned Judge wrongly treated Arbitrator request to file the award as the applicants' application to the High Court and held that tim e started to run against the applicants from the day the award was made thereby dism issing the petition. Time could not start running against the applicants before the aw ard was file d in court. 3. The learned Judge com m itted a grave error in treating the A rbitrator's request as an application under the CiviI Procedure Code, which was not - fo r the Arbitrator's Letter was m erely a request by a letter which request com plied with the Arbitration A ct and the court correctly issued the notice to appear under the Arbitration Rules. Item 18 o f Part III o f the Scheduled to the Law o f Lim itation A ct was not

applicable to Arbitration fo r filin g awards for the reason that requests for fillin g awards are not in the nature o f applications which contem plate proceedings between parties. An arbitrator is never a party to a proceeding when he requests the High Court to file an award. 4. The learned Judge ought to have held that the Respondent could not attack the fillin g o f the award by objecting the applicants' enforcem ent petition. The Respondent should have file d its own petition to challenge the filin g o f the award. Because o f the way the learned Judge had confused him self he ended up wrongly treating the Arbitrator's request to file the aw ard as the applicants' application to the court and holding that tim e started to run against the Applicant from the day the award was made thereby dism issing the petition. Therefore, the applicants are praying the Court to set aside the Ruling and Order of the High Court, costs and any other relief, which the Court may deem fit to grant. At the hearing of this application, the applicants were represented by Mr. Wilbert Kapinga, learned advocate, whereas the respondent had the services of Mr. Sylivatus Sylvanus Mayenga also learned advocate. It is noteworthy that counsel for both sides did not make oral submissions 5

for and against this application. They preferred to adopt and rely on written submissions they filed in different occasions. For the reasons that will shortly become apparent, we shall not at the moment reproduce parts of the counsel's written submissions for and against this application. We find it apposite to address the issue concerning the propriety of the application before us. As it can be glanced through the grounds of revision presented in the notice of motion, the main contentious issue is based on time limitation as decided by the High Court. The applicants' argument in the written submissions is that the High Court erred in dismissing the applicants' petition for being filed out of time. Therefore, according to the applicants' supporting affidavit, the only remedy is to challenge the said decision by way of revision. On its part, the respondent submitted that the issue on time limitation is a pure point of law which takes precedent over all matters and the learned Judge rightly determined it at the earliest possible opportunity. Therefore, the respondent argued that this application cannot be granted by the Court. It is common knowledge that, time limitation is an issue that touches on the jurisdiction of the court as a matter of law as correctly, in our view, argued by the counsel for the respondent. In the instant matter, the High Court having satisfied itself that the petition to file the 6

award was filed out of time, dismissed it for being time barred. The applicants were not satisfied with the decision of the High Court as a result they decided to come to the Court by way of revision. In the circumstances, the vital question to be determined is whether it was proper for the applicants to challenge the said decision of the High Court by way of revision? The law is settled, that revisional powers of the Court are exercised under exceptional circumstances including, where there is no right to appeal and/ or by the Court suo motu. Some of the said circumstances are stated in a number of decisions including, in Halais Pro-Chemie v. Wella A. G. (1996) TLR 269 at 272 and in Transport Equipment Ltd v. Devram P. Valambia (1995) TLR 161 where the Court held that:- "(i) The appellate jurisdiction and revisional jurisdiction o f the Court o f Appeal o f Tanzania are, in m ost cases, m utually exclusive; i f th ere is a rig h t o f a p p e a l then th a t rig h t h a s to be p u rsu e d and except for sufficient reason am ounting to exceptional circum stances there cannot be resort to the revisional jurisdiction o f the Court o f Appeal; (ii) The fact that a person, through h is own fault, has forfeited his rig h t o f appeal cannot am ount to exceptional circum stances; 7

(Hi) I f a p a rty does n o t have an a u to m a tic rig h t o f a p p e a l then h e can use th e re v is io n a l ju ris d ic tio n after he has sought leave to appeal but has been refused; (iv) The Court o f Appeal, m ay "suo m otu" em bark on revision whether or not the righ t o f appeal exists, and whether or not it has been exercised in the first instance." [Emphasis added]. In the light of the established position of the law in the excerpt above, we shall determine whether the application at hand falls within any of the stated circumstances. Under paragraph 13 of the supporting affidavit, the deponent, Mario Ricardo Stevens stated as follows:- "I have been advised by Dr, W ilbert Kapinga, one o f the advocates o f the applicants whose advice I verily believe to be correct account o f Dr. Kapinga's professional standing th a t th e s a id ru lin g a n d o rd e r a re k in d o f ru lin g s a n d o rd e rs th a t a re a p p e a la b le to th e C o u rt o f A p p e a l and that the A pplicants' only rem edy is to seek fo r revision . " [Emphasis added]. In reply to the above assertions and the application in general, the respondent through her counsel, Mr. Mayenga stated in paragraph 13 of the affidavit in reply that:- 8

"The facts deposed in the entire affidavit o f Mr. Ricardo have not revealed any reason to enable the Honourable Court to grant the orders sought in the Notice o f M otion." Having closely scrutinized the depositions of the parties, grounds of application and the written submissions by the parties, the immediate question that follow is, if the counsel for the applicants advised his clients that the Ruling of the High Court could be challenged by way of an appeal, why then have they preferred the current application? And if the intention was to say that the Ruling is not appealable, the said intention was not disclosed. Instead, the applicants sought for revision against the decision of the High Court. Therefore, we need to consider whether it was a proper cause to take. We are settled, that circumstances of this application do not fall under any of the situation elaborated in the excerpt from the cases of Halais Pro-Chemie v. Wella A.G. (supra) and Transport Equipment Ltd v. Dev ram P. Valambia (supra). We shall explain. First, the applicants' petition before the High Court was dismissed for being time barred. In their written submission the applicants challenged the decision of the High Court Judge that having made his 9

analysis on the raised preliminary objections, came up with findings and the following conclusion:- "In the instance case the Final Aw ard was issued on 13.02.2015 and the A rbitrator forw arded the sam e to the Deputy Registrar o f this Court vide a letter bearing Ref. No. S. 197 dated 03.09.2015 and, given the ERV, received on 17.09.2015. the present application was file d on 23.10.2015. AH th ese en d eavo u rs w ere b ein g m ade w hen it w as a lre a d y o u t o f tim e a s tim e w ith in w hich th e F in a l A w a rd co u ld le g a lly be file d h a d e x p ire d on 12.08.2015; s ix m o n th s a fte r the F in a l A w a rd w as m ade. Time started to d ick against the petition ers' rig h t on 13.02.2015 when the Final Aw ard was pronounced. The present application having been file d out o f tim e is incom petently before me and thus deserves the wrath o f being dism issed in term s o f section 3 o f the Law o f Lim itation Act. "[Emphasis added]. Looking at the above observation made by the High Court, we do not find anything suggesting that there was illegality in reaching that conclusion. The learned Judge having considered that time started to run from the date of award and the time of filing the petition, he was firm that the petition was filed out of time. Whether the counting was or was not supposed to start from the date of award, we think, is not a matter calling for revision. We note, however, that the applicants claimed that by the time the notice to appear was issued, there was no

petition seeking any relief. This fact, in our considered opinion does not make the matter at hand to be peculiar to the extent of necessitating invoking revisional jurisdiction of the Court in the present application. Whether or not the petition was filed out of time was a matter of law which could be appealed against. We thus find that, the reason advanced by the applicants that before that decision they had no pending matter in the High Court is unfounded. We hold so because the basis of the impugned decision was on the institution of the petition to file an award and not otherwise. Therefore, we entertain no doubt that the reason advanced by the applicants does not amount to an exceptional circumstance to warrant resort to revisional jurisdiction and hence, the decision of the High Court for lacking jurisdiction because the application was time barred is appealable. In Dismas s/o Chekemba v. Issa s/o Tanditse, Civil Application No. 2 of 2010 (unreported) the applicant's application for revision was struck out for failure to exercise his right to appeal, equally the application at hand deserves the same outcome. Second, since we have ruled out that this matter does not fall under exceptional circumstance, the applicants' preference to revision application is nothing but forfeiture of their right to appeal as provided by the law under section 5(l)(c) of the Appellate Jurisdiction Act, cap 11

141 RE 2002 (the AJA). For clarity the above provision provides as follows: 5(1) "In c iv il proceedings, except where any other law provides otherwise, an appeal sh all lie to the Court o f A ppeal- (c) w ith th e le a ve o f th e H ig h C o u rt o r o f th e C o u rt o f A ppeal\ a g a in st e ve ry o th e r decree, order, ju d g m e n t, d e cisio n o r fin d in g o f th e H igh C o u rt." [Emphasis added]. In terms of the above provision of the law, there is no doubt that the applicants ought to have appealed against the decision of the High Court. Therefore, at any stretch of imagination, the applicants' forfeiture of their right to appeal cannot amount to exceptional circumstance deserving invocation of revisional jurisdiction of the Court. Third, the application at hand does not fall under the third condition because the applicants had an automatic right of appeal against the Ruling of the High Court. This is due to the fact that, they were the petitioners in Miscellaneous Commercial Cause No. 247 of 2015 wherein, the impugned Ruling subject of this application was pronounced. Therefore, if they were not satisfied with the decision of the High Court in that petition, they ought to have appealed against it and not otherwise. Besides, it is not stated in this application that the 12

applicants had sought leave of the High Court to appeal to this Court, but the same was refused. In the circumstances, it is our considered opinion that the applicants were not justified to resort to the revisional jurisdiction of the Court. Fourth, circumstance number four does not apply in the current application because this is not a revision suo motu. In Moses J. Mwakibete v. The Editor-Uhuru, Shirika la Magazeti ya Chama and National Printing Co. Ltd (1995) TLR 134 it was held that: "The revisional pow ers conferred by section 4(3) o f the Appellate Jurisdiction Act, 1979\ are not m eant to be used as an alternative to the appellate jurisdiction o f the Court o f Appeal; accordingly, u n le ss a ctin g on its ow n m otion, the Court o f Appeal cannot be m oved to use its revisional pow ers under section 4(3) o f the A ct in cases where the applicant has the righ t o f appeal with or w ithout leave and has not exercised that right. "Emphasis added]. In the current application, it is the applicants who filed the application for revision having been dissatisfied with the impugned decision of the High Court, which we say, was appealable. In the circumstances, the Court is not acting suo motu to justify invocation of its revisional powers under section 4(3) of the AJA which is also indicated in the applicants' notice of motion. 13

For the reasons stated above, we find that the application before us is misconceived. The applicants ought to have appealed against the decision of the High Court instead of coming to the Court by way of revision application. In other words, the present revision application seems to be an appeal through the backdoor which cannot be condoned by the Court in the wake of the appeal process not being blocked. For that reason, we shall not consider the grounds of revision and written submissions thereof. Consequently, we hereby strike out this application with costs. DATED at DAR ES SALAAM this 12th day of October, 2020. S. A. LILA JUSTICE OF APPEAL W. B. KOROSSO JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL The ruling delivered this 15th day of October, 2020 in the presence of Ms. Bertha Mwarija, learned Counsel for the Applicants and Mr. Sylivatus Svlvanus Mavenqa, learned Counsel for the Respondent, is hereby 14