Attorney General vs International Electronics Company Ltd and Another (Civil Application No. 131/16 of 2023) [2024] TZCA 932 (25 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCO RAM: SEHEL. J.A, MASOUD, J.A AND MPEMU, J.A) CIVIL APPLICATION NO. 131/16 OF 2023 THE ATTORNEY GENERAL . .................................... . ...................APPLICANT VERSUS INTERNATIONAL ELECTRONICS COMPANY L T D ............. 1 st RESPONDENT THE BOARD OF TRUSTEES OF PUBLIC SERVICE SOCIAL SECURITY FUND (PSSSF) .................................. 2 nd RESPONDENT (Application for revision of the decision of the High Court of Tanzania, Commercial Division at Dar es Salaam) fPhilip, J.) dated the 1st day of October, 2018 in Misc. Commercial Cause No. 15 of 2018 RULING OF THE COURT 21st August & 25th September, 2024 MASOUD. J. A.: The application for revision by the applicant before us has its genesis in a dispute that arose between the 1s t and the 2n d respondents involving a construction agreement that the respondents had entered. The dispute led to invoking the terms of the agreement to submit the same to arbitration. The submission to arbitration resulted into an arbitral award which was registered by the High Court on 1s t October, 2018 pursuant to section 17 of the Arbitration Act [cap. 15 R.E. 2002] in Misc. Commercial Cause No. 15 of 2018.

The registration of the award as a court decree was made subsequent to the striking out on a technical reason the 2n d respondent's petition in Misc. Commercial Application No. 38 of 2015 seeking to set aside the arbitral award. The very proceedings and order in Misc. Commercial Cause No. 15 of 2018 in which the award was registered as a court decree read thus: 1 / 10/2018 Coram: Hon. B. K Phillip J. For the Claimant: Advocate Aziza Msangi For the respondent: Advocate Rugemeleza Nshalla and Advocate Bupe Kabeta B/C: Beatrice. Court This order is delivered today this 1/10/2018 in the presence o f Advocate Aziza Msangi, for the claimant, and Advocate Rugemeleza Nshalla and Advocate Bupe Kabeta, for the respondent Sgd Hon. B. K. Phillip 1/10/2018 Court Order Pursuant to the provision o f section 17 (2) o f the Arbitration Act [Cap. 15 P.E 2002], the arbitral award, filed in this court by Mr. M. J. A. Lukwaro, sole Arbitrator in this matter, is hereby ordered to be enforceable as if it were a decree o f the court.

It is so ordered. Sgd Hon. B. K. Phillip 1 / 10/2018 The applicant, as a guardian of public property and interest such as the 2n d respondent's fund and not a party to the impugned proceedings, is aggrieved by the cause taken by the High Court in registering the arbitral award. She thinks that the consequences of the course taken by the High Court is so serious that it would lead to loss of her interests. In a bid to safeguard such interests, the applicant has lodged before this Court the application for revision under the provision of section 4 (2) and (3) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2019], rules 4 (2) (a) and (b), 65 (1) and (4) of the Tanzania Court of Appeal Rules, 2009. It was supported by a 28-paragraph affidavit of George N. Mandepo, a Principal State Attorney. The application is vehemently resisted by the 1s t respondent who lodged an affidavit in reply to fortify her opposition. The 2n d respondent did not lodge an affidavit in reply to oppose the application and at the hearing she supported the application. At the hearing, Mr. Baraka Nyambita, Senior State Attorney, assisted by Ms. Rehema Mtulya, and Ms. Jacquline Kinyasi, both learned

State Attorneys, appeared for the Attorney General, the applicant. On the other hand, Mr, Samson Mbamba, and Mr. Rosan Mbwambo, learned advocates and Mr. Nicander Kileo, and Mr. Steven Biko, learned Principal State Attorneys, respectively appeared for the 1s t and 2n d respondents. Of all the grounds raised by the applicant in the notice of motion which is supported by the affidavit deponed by George N. Mandepo and which are resisted by the 1s t respondent, the overarching complaint by the applicant is that there is a violation of natural justice in respect of the 2n d respondent in the proceedings leading to the registration of the arbitral award. In this respect, it is contended that the 1s t respondent was neither afforded an opportunity to be heard, nor invited to show cause as to why the arbitral award should not be registered as a court decree as sought by the 1s t respondent. We will, in our endeavour, first deal with this issue before we consider to resort to the others. There is on the record rival written submissions respectively lodged by the applicant and the 1s t respondent. They were respectively adopted for the purpose of the hearing. They were in addition clarified by the learned counsel in their respective oral submissions. We gathered that the applicant's argument on the issue pertaining to failure of natural justice was that the High Court did not afford the right to be heard to the 2n d respondent before it proceeded to grant the

application and made an order whose effect was to register the arbitral award as a court decree. Since the appellant was essentially against the arbitral award, she was effectively condemned without being heard, for she was not even afforded an opportunity to show cause why the arbitral award should not be registered or otherwise. It means, therefore, that the effect of that decision, which was procured without hearing the 2n d respondent, would lead to, it was submitted, the applicant, who is a guardian of public property and interest, losing her interests comprised in the 2n d respondent's fund. The course taken by the High Court, which according to Mr. Nyambita resulted to violation of the parties right to be heard, amounts to a serious irregularity as it entails infringement of Article 13 (6) of the Constitution of the United Republic of Tanzania guaranteeing the right to be heard. He argued that the irregularity has occasioned miscarriage of justice to the 2n d respondent which therefore warrants this Court to exercise its revisional jurisdiction in order to correct it. In support of the above arguments, reliance was made on a number of authorities. They were in relation to a situation, as the one we are having, where the court determined an issue without hearing the parties before it or any other party affected by the decision.

The said authorities were: Abbas Sherally and Another v. Abdul Sultan Haji Mohamed Fazalboy (Civil Application No. 133 of 2002) [2005] TZCA 105 (17 November 2005; TANZLII); Patrobert D. Ishengoma v. Kahama Mining Corporation Ltd & 2 Others (Civil Application No. 172 of 2016) [2018] TZCA 227 (2 October 2018; TANZLII); Mufindi Paper Mills Limited v. Ibatu Village Council & 3 Others (Civil Revision No. 555 of 2019) [2022] TZCA 597 (29 September 2022; TANZLII); Symbion Power Tanzania Limited v. CITIBANK Tanzania Limited & Another (Civil Application No. 287/16 of 2022) [2024] TZCA 354 (9 May 2024; TANZLII); Diamond Trust Bank Tanzania Limited v. Granitech Tanzania Company Limited & 4 Others (Civil Appeal No. 153 of 2021) [2024] TZCA 102 (23 February 2024; TANZLII); and Haji Mradi v. Linda Sadiki Rupia (Civil Appeal 24 of 2016) [2019] TZCA 263 (28 August 2019; TANZLII). It is trite, from the foregoing authorities, that a decision made in violation of the right to be heard is a nullity notwithstanding whether or not the outcome would have been the same had the parties or any other affected party been afforded a right of hearing. We were thus invited to be guided by such authorities and proceed to allow the application. In fortification, the applicant's counsel drew our attention to a decision of the High Court in Kigoma/Ujiji Municipal Council v. 6

Nyakirang'ani Construction Limited (Misc. Commercial Cause No. 239 of 2015) [2016] TZHCComD 3 (26 May 2016; TANZLII) which in their view addresses the situation we are having. Inviting us to draw inspiration from the said decision, we were specifically referred to page 11 of the ruling where Mwambegele, J. (as he then was) stated thus: "Obviously, where there is no challenge against an arbitral award filed in court, and considering that parties had chosen to deal with their problems out o f court through arbitration, it is not for the court to refuse or delay to give meaning thereto, in terms o f the law on the apprehended re-engineering o f the challenging process by either party. That notwithstanding, a court o f law being not a party to such procedure, cannot move suo motu to make an order adopting and registering the award as a decree o f the court. Thus, it is upon the relevant party to move the court to make such order as it deems fit. The court, in granting such order, in my considered opinion, will take into consideration various factors including any intention expressed by the opposite party there and then, as well as substantivejustice tenents. Therefore, where a party commits laches, and let the day passes by, the matter always stands at that point o fstriking out or dismissing the petition

challenging the award, until and unless, a prayer to register the same is made or a due process to have it impeached is re-engineered, o f course subject to the law o f limitation". Taking the point that the applicant was not a party to the High Court proceedings further, the learned counsel for the applicant argued that the applicant was not aware of the irregularity and illegalities in the impugned proceedings and the resultant decree. As such, upon becoming aware of the same, she found that she had no other option but to file the instant application to have the error corrected. On the above argument, reliance was heavily made on Patrobert D. Ishengoma (supra). In that case, this Court, among other things, had it that any decision affecting the rights and interest of a person which was arrived at in his absence and without hearing him is a nullity even if the same decision would have been made had the affected person been heard. The thrust of the submissions in reply by Mr. Mbamba and Mr. Mbwambo was that the course taken by the High Court was proper and not violative of the 2n d respondent's right to be heard. They assigned a number of reasons to support the position that the 2n d respondent was given opportunity to be heard. The same were to the following effect: 8

Firstly, the 2n d respondent was summoned and did appear in respect of Misc. Commercial Cause No. 15 of 2018; secondly, having appeared, the 2n d respondent responded to Misc. Commercial Cause No. 15 of 2018; thirdly, in showing cause why the arbitral award should not be registered and enforced as a court decree, the 2n d respondent opted to file Misc. Commercial Application No. 38 of 2015 to set aside the arbitral award; fourthly, Misc. Commercial Application No. 38 of 2015 was struck out on 1s t October, 2018 for incompetence in the presence of the counsel for both parties and; fifthly, Misc. Commercial Cause No. 15 of 2018 was instantly called in the presence of the counsel for the parties and there and then, the award was registered for there was nothing left to prevent the High Court from registering it as the counsel representing the 2n d respondent did not raise any objection. Accordingly, we were urged to find that the complaint on the denial of right to be heard was baseless. In relation to the argument by the applicant's counsel that the applicant is a stranger as he was a party to the impugned proceedings and therefore, not being aware of the error complained of, it was argued that her interests were very weli safeguarded by her delegates in accordance with the law. It was thus, for that reason, unprecedented for the applicant to put a case against her delegates as she is doing in the

instant matter. It was added that, in the instant application, the applicant has no new interest to safeguard other than the same interest that she had when she was being represented by the 2n d respondent. It was so argued because in view of the learned advocates for the 1s t respondent, the latter was the applicant's agent who has the capacity to sue and being sued in her own name and was throughout the proceedings of the High Court represented by the applicant's delegates. From the foregoing, there are two issues to be addressed and resolved. The first issue is whether the applicant was entitled, in the circumstances, to lodge the instant application to safeguard the public interest and that of the second respondent. If the first issue is answered in the affirmative, the second issue is whether the course taken by the High Court when it registered the arbitral award, denied the 2n d respondent's opportunity to be heard. We have considered the record of application before us and paid close attention to the proceedings of the High Court in respect of Misc. Commercial Cause No. 15 of 2018 and Misc. Commercial Cause No. 38 of 2018, whilst mindful of the averments of the affidavits in support and in reply. We note that the applicant was, admittedly, not a party to the proceedings in which the second respondent was being represented by Dr. Rugemeleza A. K. Nshalla, learned advocate. We also note that, 10

when the arbitral award was registered by the High Court on 1s t October, 2018 as a court decree in Misc. Commercial Cause No. 15 of 2018, the 2n d respondent appeared through Dr. Nshalla who was then representing her. On the other hand, the 1s t respondent was on that day represented by one, Ms. Aziza Msangi, learned advocate. We further note that, it was at the stage of execution of the decree emanating from the arbitral award involving the 1s t and 2n d respondents that the applicant, who neither appeared for the 2n d respondent in the proceedings before the High Court nor was she a party to such proceedings, was added as a necessary party to the application for execution of the said decree. The inclusion of the applicant as a necessary party was pursuant to an order of the High Court for amendment of application for execution which was granted on 24th May, 2022 following a prayer to such effect by an advocate for the 1s t respondent. The inclusion of the applicant as a necessary party was, therefore, effected after the proceedings of the High Court in respect of registration of the arbitral award as a court decree were finalized in favour of the 1s t respondent. Apart from allowing the amendment to be effected as prayed, we gather from the record that the High Court ordered the applicant be served with the amended application for execution. After the amended

application for execution was filed on 7th June, 2022 naming the 2n d respondent and the applicant as the judgment debtor and necessary party respectively, the applicant was on 21s t June, 2022 duly served with the notice of appearance on 27th July, 2022 before Mkeha J. as is also evidenced by her actual appearance through the Office of the Solicitor General on 27th July, 2022 and her letter dated 21s t July, 2022 to the Office of the Solicitor General which accompanied the applicant's affidavit in support. It is evident that after the appearance of the applicant in the proceedings for execution of the decree through the Office of the Solicitor General, she forthwith inquired from the 2n d respondent about the proceedings of the High Court relating to the decree. This is, undoubtedly, apparent in the correspondence between the applicant through the Office of the Solicitor General, on one hand, and the 2n d respondent, on the other, which formed part of the applicant's affidavit in support, and which was not disputed by the 1s t respondent. It is, indeed, from such correspondence, particularly, the 2n d respondent's letter to the applicant dated 25th July, 2022 and received by the applicant on 27th July, 2022 that the said applicant became aware of the impugned proceedings in which the 2n d respondent was, in her view, not afforded opportunity to be heard and in relation to which the

instant proceedings were commenced. In the said letter received by the applicant on 27th July, 2022, the 2n d respondent informed the applicant that her appeal (Civil Appeal No. 249 of 2018) against the impugned decision of the High Court that registered the arbitral award as a court decree, which was lodged in this Court after filing a notice of appeal on 6th February, 2019, was struck out on 25th October, 2021. In terms of what we have found and revealed from the record, we are persuaded that the record defies the argument advanced by the 1s t respondent's advocates to the effect that the applicant was not entitled to lodge the instant application. We say so because, one, the applicant was clearly not a party to the impugned proceedings of the High Court which gave rise to the impugned decree; two, the 2n d respondent who was a party to such proceedings was all along being represented by private advocates and there is nothing showing that at any particular time such proceedings were brought to the attention of the applicant either by such private advocates or the 2n d respondent before they were concluded on 1s t October, 2018; three, the applicant, not a party to those proceedings, was joined as a necessary party after registration of the arbitral award and after the appeal initiated by the 2n d respondent was struck out and; four, the joining of the applicant in the execution proceedings as a necessary party at the instance of the 1s t respondent

justifies the interest that the applicant has on the matter as the guardian of the public property and interest. In the case of Attorney General v, Mkongo Building & Civil Works Contractors Ltd & Others (Civil Application No. 166 of 2020) [2022] TZCA 527 (1 September 2022; TANZLII), this Court considered the issue whether the applicant, who was not a party to the proceedings that were being challenged, was in the circumstances of the case, entitled to approach the Court through an application for revision to challenge the propriety of those proceedings after they had already been finalised. We were in that case satisfied that the applicant was aware of the existence of those proceedings before they were finalised at the High Court. We were, further, in that case satisfied that the applicant could have taken appropriate steps in respect of those proceedings in accordance with the law in her pursuit to safeguard the public interest and those of the 2n d respondent, instead of approaching the Court by way of revision after the proceedings had been finalised. We were in the end in that case satisfied that the application for revision by the applicant was misconceived and incompetent. We, in the results, struck it out. 14

Although the situation in Mkonge Building and Civil Works Contractor Ltd (supra) is somehow different from the matter before us; it, nevertheless, provides some insightful reasoning which is critically relevant to the circumstances pertaining to the determination of the issue as to whether the applicant was entitled, in the circumstances, to lodge the instant application. We are of that position because there is no indication on the record of appeal before us whatsoever that the applicant was aware of the impugned proceedings. In that respect, there is nothing suggesting that there was communication between the 2n d respondent and the applicant regarding the impugned proceedings when they were still pending before the High Court. More importantly, unlike in the above case, the applicant was, in the instant matter, joined as a necessary party at the execution proceedings of the impugned decree. We, thus, disagree with the standpoint of the 1s t respondent's advocates that the approach taken by the applicant to lodge the instant application in this court was unprecedented because the 1s t respondent is an agent of the applicant having powers to sue and be sued in her own name. This takes care of the first issue that we stated herein above which we accordingly resolve in the favour of the applicant.

The remaining issue is on the substance of the application which is whether the course taken by the High Court when it registered the arbitral award denied the first respondent's opportunity to be heard. The rival submissions on this issue which we reviewed herein above focused on the proceedings of the High Court in Misc. Commercial Cause No. 15 of 2018 in which the arbitral award was registered as a court decree. The said proceedings are a subject of the instant application and the relevant part of the same is reproduced herein above. Going by the contents of the said proceedings, it is evident that on 1s t October, 2022 when the High Court registered the arbitral award, the 1s t and the 2n d respondents were duly represented by learned advocates. It is glaring also that none of the advocates addressed the court in relation to the application before the court prior to the granting of the order registering the award as an enforceable decree of the court. It, therefore, means that the 2n d respondent's advocate was not in that proceedings invited to show cause why the award should not be granted before the arbitral award was registered as such. Inspired by the statement of principle emerging from the case of Kigoma/Ujiji Municipal Council v. Nyakirang’ani Construction Limited (supra) which the applicant's counsel referred us to, as indicated herein above, we find that the record speaks loud and clear

that the High Court judge moved herself suo motu to make an order adopting and registering the award as a decree of the court. Since the proceedings in relation to Misc. Commercial Cause No. 38 of 2018 were not consolidated with the proceedings of the same court in Misc. Commercial Cause No. 15 of 2018 in which the award was registered, the argument that the applicant was afforded an opportunity to be heard in the latter cannot, we are afraid, hold water. Thus, the course taken by the High Court judge violated not only the applicant's right to be heard but also the 2n d respondent's right to be heard before the registration of the award. It equally violated the right to be heard of the applicant who only ended up being joined as a necessary party in the course of the execution proceedings of the decree emanating from the arbitral award. We are, in our finding in this respect, guided by the authorities on this subject that were cited to us among others. They include, Abbas Sherally and Another v. Abdul Sultan Haji Mohamed Fazalboy (supra) in which this Court pronounced a statement of principle in relation to violation of the right to be heard of a party before a decision is made against such a party. The Court stated thus: "The right o f a party to be heard before adverse action or decision is taken against such a party 17

has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it wiii be nullified even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach o f the principles o f natural justice. For example, in the case o f Genera/ Medical Council v. Spackman, [1943] A.C. 627, Lord Wright said:- 'If principles o f natural justice are violated in respect o f any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence o f the departure from the essential principles o f justice. The decision must be declared to be no decision'. That said, we find the order made by the High Court which is the subject of the instant application for revision cannot be an exception for it was a result of breach of natural justice. Consequently, we find merit in the ground of revision relating to violation of natural justice which means that the proceedings and order of the High Court of 1s t October, 2018 were a nullity. With this outcome, we will not deal with the other grounds of revision. 18

For the reasons stated, we find merit in the application and we grant it. Accordingly, we quash and set aside the impugned proceedings and order of the High Court of 1s t October, 2022 in Misc. Commercial Cause No. 15 of 2018 and any other subsequent proceedings and order that arose from them. In the result, we order the case file to be remitted to the High Court for it to deal with the application for registration of the arbitral award in accordance with law. In the circumstances, we make no order as to costs. DATED at DAR ES SALAAM this 24th day of September, 2024. The Ruling delivered this 25th day of September, 2024 in the presence of Mr. Gallus Lupogo, learned counsel for the applicant, Ms. Aziza Msangi Nsangizyo Zilahulula, learned counsel for the 1s t respondent and Ms. Sukayna Farouk assisted by Ms. Nyambilila Ndoboka both learned counsel for the 2n d respondent, is hereby certified as a true cop B. M. A. SEHEL JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL