Norsad Finance Limited vs Shindika Group Limited (Civil Appeal No. 125 of 2014) [2017] TZCA 1197 (24 August 2017)

J IN THE COURT OF APPEAL OF TANZANIA AlDAR ES SALAAM (CORAM: MUSSA, J.A., MUGASHA, J.A. And MWAMBEGELE, J.A.) CIVIL APPEAL NO. 125 OF 2014 NORSAD FINANCE LIMITED ............................................... APPELLANT VERSUS SHINDIKA GROUP LIMITED ............................................ RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania at Dar es Salaam) 2nd & 29 th August, 2017 MUSSA, J.A.: (Shangwa, J.) dated the 13 th day of June, 2014 in Misc. Application No. 333 of 2013 RULING OF THE COURT In the high Court of Tanzania, at Dar es Salaam, the respondent instituted an application seeking an order to restrain the respond_ent from taking adverse action against her pending the determination of a reference to arbitration. The application was by way of a Chamber Summons which was taken out under the provisions of section 3 of the Arbitration Act, Chapter 15 of the Revised Law; section 2(3) of the Judicature and Application 1

of Laws Act, Chapter 358 of the Revised Laws, as well as Article 23(3) of tl1e International Chamber of Commerce Arbitration Rules, 1998. It was common ground that at the institution of the application, the respondent had not initiated any arbitration proceedings just as there was no pending suit between the parties. This prompted the appellant to raise a preliminary point of objection to the effect that, there being no pending suit and arbitration proceedings, the application before the High Court was premature and incompetent. As it were, at the height of its deliberations, the High Court (Shangwa, J.) overruled the preliminary point of objection and proceeded further to grant the requested restraint order. In its own words;- "For granting the orders sought, I will apply section 95 of the Civil Procedure Code Cap. 33 R.E 2002 which saves the inherent powers of this Court to make such orders as may be necessary for the ends of justice. Applying the aforesaid section of the Civil procedure Code, I do hereby restrain the respondent from taking adverse action against the applicant pending the determination of the reference to arbitration." -------- --------- .. 2

Dissatisfied, the appellant presently seeks to impugn the verdict of the High Court upon a memorandum of appeal which is comprised of two grounds, namely:- "1. That having held there is no pending request for arbitration of the dispute between the parties to the international Chamber of Commerce in terms of the new Arbitration Rules/ 2012 the trial Court erred in law in granting restraint orders against the appellant. 2. That the trial court erred in law for not dismissing the respondent's application before it. H Incidentally, the respondent greets the appeal with a Notice of preliminary point of objection to the effect that no leave to appeal was sought by the appellant ahead of the institution of the matter at hand contrary to section S(l)(c) of the Appellate Jurisdiction Act, Chapter 141 of the Revised Laws (the AJA). When the appeal was placed for hearing before us, the appellant was represented by Mr. Sinare Zaharan, learned Advocate, whereas the .... -r:espondent-had-tbe-ser:v.ices-of-M.r:..-Ma kaki-.M asatu,-also-lear+1ed-Advocate. 3

Addressing us on the preliminary point of objection, Mr. Masatu contended that the appellant ought to have sought leave of the high Court or this Court ahead of institution of the appeal, as required by the already referred to section 5(1) ( c) of the AJA. Apparently apprehensive of a counter contention from his friend, the learned counsel for the respondent pre- emptively urged that section 5(1) (a) of the AJA only applies to decisions of the High Court made in the exercise of its original Jurisdiction and in the course of determining a suit under the Civil Procedure Code. Thus, Mr. Masatu urged that inasmuch as the application giving rise to the matter at hand was not a suit, section 5(1) (a) is inapplicable. In sum, the learned counsel for the respondent submitted that since the desired appeal only lies with leave which was not sought, the purported appeal at hand is incompetent and should be struck out with costs. To fortify his submissions, Mr. Masatu referred to us three decisions of the Court, viz - Willow Investment Vs Mbombo Ntumba and two others [1997] TLR 93; Jose Ferreira Vs Mbaraka Salum [1994] TLR 214 and; Enock Chacha Vs Manager, NBC Tarime [1995] TLR 270 . .. ·-·· ---- ------------------------------·----- 4

In reply, Mr. Zaharan countered that the present appeal lies without leave by virtue of section 5(1) (a) of the AJA. The learned counsel for the appellant sought to reiate the provisions with the order of the high Court which, he said, was specifically predicated under section 95 of the Civil Procedure Code Act, Chapter 33 of the Revised Laws (the CPC). Thus, to him, on true and proper construction, the order of the high Court arose from } a suit under the CPC and, for that matter, fits into the provisions of section 5 (1) (a) of the AJA. To buttress his position, Mr. Zaharan referred to us the unreported decision of the Court in Civil Appeal No. 115 of 2005 - Tanzania Motor Services Ltd and Another Vs Mehar Singh t/a Thaker Singh. In the upshot, the learned counsel for the appellant urged that the preliminary point of objection is misconceived and prayed that the same be overruled with costs. On our part, w~ have dispassionately considered and weighed the learned contending submissions from either side. To us, the issue of contention boils down to the question whether or not the decision giving rise to this appeal was made by the high Court in a suit under the CPC to come to terms with section 5(1) (a) of the AJA. In this regard, it is pertinent to ---------------------- ---··--~--- -- 5

• observe that in the case of Tanzania Motor Services Ltd (supra),. tlie court made a broad statement of principle to the effect that the term "suit" is a word of comprehensive import and that a petition under the Arbitration Act conveniently falls within the ambit of the word "suit" Incidentally, in arriving at that proposition, the Court was inspired by the decision of a single Judge (Mroso, J.A.) in the unreported Civil Application No. 103 of 2003 - Blue Line Enterprises Limited Vs East African Development Bank. In that case, the single Judge- had occasion to construe the word "suif' as used in section 5 (1) (a) of the AJA as one of the issues raised therein was whether or not a petition brought under the Arbitration Act was a "suit"under the CPC. The learned single Judge came to the conclusion that although the proceedings in the High Court were by way of a petition under the Arbitration Act, they were also, in a broad sense, a "suif' within the meaning of the word as μsect under section 5 (1) (a) of the AJA. When all is said and applied to the situation at hand, to begin with, we should reiterate what we stated in both Tanzania Motor Services Ltd and . Blu_e_ Line (supra) to the effect tnat tne term "suir·-rs ·award of 6

comprehensive import and that a petition under the Arbitration Act conveniently falls within the ambit of the term. As we do so, we should express particular exception to the effect that not every proceeding instituted before the High Court is to be construed as a "suif' under the CPC within the meaning of the word as used in section 5(1) (a) of the AJA. In that regard, it is noteworthy that the factual setting in the matter under our consideration ) is distinguishable from that obtaining in Blue Line. To say the least, in the latter case the desired appeal arose from a petition under the Arbitration Act whereas, in the situation at hand, the appellant had not instituted any petition, rather, the desired appeal arises from her successful quest for a restraint order. To the extent that there was no pending petition or suit between the parties, we take the position that the resultant restraint order was not made in the course of a suit within the contemplation of section 5(1) (a) of the AJA. To this end, in agreement with the submission of Mr. Masatu, we are of the settled view that the provisions of section 5(1) (a) are inapplicable to the situation at hand. That being the position, we further find that an appeal against the impugned order of the High Court lies with leave pursuant to 7

.. section 5(1) (c) of the AJA. As no leave was sought ahead of the institution of the appeal, this appeal is certainly incompetent and, accordingly, the same is struck out with costs. DATED at DAR ES SALAAM this 24 th day of August, 2017. K.M. MUSSA JUSTICE OF APPEAL S.E.A. MUGASHA JUSTICE OF APPEAL J.C.M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. A.H. MSUMI DEPUTY REGISTRAR COURT OF APPEAL ------ ----- ---·------- 8