Mvita Construction Company Limited v Tanzania Harbours Authority (Civil Appeal No. 94 of 2001) [2005] TZCA 110 (18 August 2005)

\ IN THE COURT OF APPE'L OF TANZANIA AT DAR ES SALAAM {CORAM: RAMADHANI, J.A., MROSO, J.A., And KAJI, J.A.) CIVIL APPEAL NO. 94 OF 2001 BETWEEN MVITA CONSTRUCTION COMPANY ..................................... APPELLANT VERSUS TANZANIA HARBOURS AUTHORITY ............................. 1 ... RESPONDENT MROSO, J.A.: (Appeal from the Decision of the High Court of Tanzania at Dar es Salaam) {Msumi, PJ) dated the 23 rd day of January, 2001 in Miscellaneous Civil Cause No. 138 of 1999 JUDGMENT OF THE COURT In this appeal the appellant company was represented at the hearing by Mr. M.J.A. Lukwaro together with Mr. Pherose Eruch Nowrojee and Mr. Dalip Singh Obhrai, learned advocates. The respondent authority was represented by Mr. Kibuta together with Mr. Tim Lamb, QC, Dr. Mapunda and Mr. Sikila, learned advocates. A 'I question arose whether Mr. Nowrojee and Mr. Obhrai who are both advocates on .the Rolls of Kenya and .Zanzibar and have current practicing certificates for Zanzibar, had a right of audience before us. 0

.. · r·-! ;ii ,M Q, , .·~ I I I ., i I i I 2 I , . . . · · Three· da¥S before the Jppeal ':Was to come for hearing Mr. .Lukwaro had f nt petitions to jhe Chief Justice for special licence in respect of tho 7 e two advocated from Kenya. It was the prayer of Mr. Lukwaro that/coFlsidering tha~ the two advocates had been enrolled in Zanzibar a 1 d held current 9:racticing certificates there, they did not need any s1ecial licence u/er Section 39. (2) of the Advocates Ordinance, /P-341 of the Liws ofTanzania. I I · Sectiorl J9 of the Advbcates Ordinance has provisions on the . . i . conditions nlbr acting· as· arl advocate and sub-section (2) thereof . .I says: - •. /(2) Notwithstaniing anything to the contrary I co,ntained in this Part, the Chief Justice may, / upon payment/ to the High Court of the / prescribed.· fe . admit to practice. as an I advocate for t~e purpose of any case any of / the persons ~entioned in subsection (1) of I s·ection 8 who /has come or intends .to come to l ' Tanzania for the purpose of appearing in such . . .. I . case. /' I .! I 1 I I I I I I I l ' l I I I

i 3 Subsection (1) of Section 8 of the Ordinance lists the qualifications of a person who ;applies to the Chief Justice to be admitted as an advocate. According 'to Mr. Lukwaro, the Chief Justice said that there might be merit ip the proposal he (Lukwaro) gave but to avoid delay in the hearing of the appeal granted a special licence to the two advocates pending clarification on the legal position. Mr. Kibuta was of the view that although Zanzibar advocates have a, right of a;udience before the Court of Appeal in Zanzibar, they do not have an automatic right of audience before the Court on the mainland. So, although the Chief Justice granted the two advocates special licence to appear before the Court they had to pay the necessary fees. The advocates for the parties agreed that the hearing of the appeal could proceed and, in the meantime, they would undertake legal research on whether an advocate of the High Court of Zanziba~ has an automatic right of audience in this Court whether it sits on the mainland or in Zanzibar. Following from that

'I -· J 4 I undertaking the Court proceeded tO';hear the appeal and written I submi.ssions on', the right of audience before the Court followed thereafter. In his written submissions Mr. Lukwaro referred to Rule 31 (3) of the Court of Appeal Rules, 197,9 where it is provided:- I Every advocate who is for the time being I entitled to practice before the High Court shall have 'the right of audience before the Court--- , ' and argued that from 1984, by Act No. 16 of 1984, the definition of "High Court" was broadened to include the High Court of Zanzibar. So, under the Appellate Jurisdiction Act, 1979 as amended, an ' advocate of the High Court of Zarilzibar is as well an advocate of the ' I High Court of Ta~zahia for purposes of the right of audience before the Court of Ap 1 peal. To quote Mr. Lukwaro from his written I submissions he said -

'1 . ' In other words any refet..ence to the High Court under the Appellate Jurisdiction Act, 1979 and the Rules made thereunder - the Tanzania Court of Appeal Rules - is reference to both the High Court of Tanzania and the High Court for Zanzibar. (Our underlining for emphasis) 5 He concluded that it followed that every advocate who for the time being was entitled to practice before the High Court had a right of audience before the Court of Appeal of Tanzania under Rule 31 (3) of the Court Rules. Mr. Nowrojee and Mr. Obhrai were therefore entitled to be heard by the Court without the need to pay fees for a special practicing licence. In his written submissions Mr. Kibuta agrees that the answer lies on whether the words "High Court" in Rule 31 (3) of the Court Rules include every advocate who is entitled to practice before the High Court of Zanzibar. He submits, however, that an advocate referred to in Rule 31 (3) in the Court of Appeal Rules must be one whose name has been entered by the Registrar of the High Court on

6 I . . the Roll of Adv0cates. The High Court envisaged here would be the High Court of The United Republic of Tanzania and not the High Court of Zanzibar. He argues that that is so considering the definition of "the High Court" in Rule 2 (1) of the Court Rules which reads - "the High Court" means the High Court of the Uni4ed Republic of Tanzania established by the Constitution --- . The High Court of the United Republic is provided for under Article 108 (1) of the Constitution of the United Republic of Tanzania whereas Article 114 provides for the High Court of Zanzibar. Mr. Kibuta submits, therefore, that an· advocate of the High Court of Zanzibar does not have automatic right of audience before the Court of Appeal when: sitting on mainland Tanzania. We think Mr. Kibuta is correct to say that an advocate of the High Court of Zanzibar does not have automatic right of audience before the Court of Appeal on mainland Tanzania, because the right

'1 .• I 7 to practice is territorial. Such an advocate will have a right of audience before the Court on mainland Tanzania either if his name has been entered on the Roll of Advocates by the Registrar of the High Court on the mainland and has paid the necessary fees for a practicing certificate, subject to the five year practice requirement, or if he has a special licence under section 39 (2) of Cap. 341 of the Laws. It must also be noted that although the definition of "High Court" in the Appellate Jurisdiction Act, 1979 has been broadened by Act No. 16 of 1984 to mean the High Court of Tanzania or the High Court of Zanzibar "as the case ;may be", that definition must be read bearing the context in mind, that is to say, to provide for the jurisdiction of the Court of Appeal to hear appeals, revisions and applications from both the High Court of Tanzania and the High Court of Zanzibar. However, the Tanzania Court of Appeal Rules, 1979 have their own definition of "the High Court" in Rule 2 which was not amended to conform with the amended definition in the Appellate Jurisdiction Act. As mentioned earlier, for the purposes of Rule 31 (3) of the Court Rules, the words "the High Court" have remained to mean "the High Court of The United Republic of Tanzania established

.... 8 by the Constitution", that is to say by'Article 108 of the Constitution. Undoubtedly, that is an anomaly because the Court Rules are subsidiary legislation made under the Appellate Jurisdiction Act, 1979 and, normally, should not provide for a definition of the words "the High Court" which is inconsistent with the definition in the principal legislation. But even if the definition of "High Court" in the Rules were the • same as the definition in the Appellate Jurisdiction Act, 1979, as amended, so that the words "High Court" whenever they appear in the Rules meant "the High <;:ourt of Tanzania or the High Court of Zanzibar, as the case may be", for purposes of Rule 31 (3) of the Court Rules, 1979 it could oqly mean that advocates who are entitled to practice before the High Court of Zanzibar, like their counterparts on the mainland, have a right of audience before the Court of Appeal. In fact, in the absence of such a definition the appearance of advocates from Zanzibar before the Court was of questionable validity. Even so, the fact that an advocate of the High Court of Zanzibar is. entitled to appear before the Court does not necessarily

9 " I . mean that such an advocate h 9 s automatic right of audience before ' I . the Court on the mainland or that an advocate from the mainland has automatic right of audience before the Court in Zanzibar. Such advocates have to comply with the conditions in legislations relating ~ to advocates f~:>r practicing on :the mainland and in Zanzibar. In the case before us the two foreign advocates from Kenya , I were granted temporary adm!ission and special practicing licence by I the Chief Justice. All they needed to do thereafter was to pay the necessary fees. We now order that necessary fees in respect of both Mr. Nowrojee and Mr. Obhrai be paid to the Registrar within two days of this judgn:ent. Now to th~ appeal. About. 28 years ago, irJ August 1977, the parties in this appeal entered into ·a written contract under which the appellant, a marine I contractor,, was to undertake certain civil engineering works at the Port of Dar es Salaam. ·' The project was known as the Port Modernisation of Lighter Wharf Project, Phase II. Among other

• things the cotract contained provjsions for the settlement of disputes betwen the parties by ,arbitration. The appellant, henceforth to be referred to simply as Mvita, .embarked on the construction work at the port between September, 1977 and 6 th , March, 1980 ,: when the respondent, which for ' convenience wjll henceforth be ,referred to only as THA, entered upon the site and the works and took over Mvita's construction plant, temporary works and materials. Those acts gave rise to disputes between the parties. I In accordance with a , Clause 67 of the Contract a sole I Arbitrator, one Geofrey Fort H~wker based in London, was appointed. The parties had entered into :a written "Agreement to_ Refer" which • I among other things authorized the Arbitrator to determine:- 1 ' All questions and matters in difference between the parties hereto touching their ' respective rights ! and duties and obligations ' u:'nder the said : agreement and all other

matters in difference beEWeen the parties ! i arising out of or relative to the said agreement on the subject matter thereof---. A schedule identified the matters in dispute in difference. 11 Arbitratio~ started on 15 th April, 1985 and by 22 nd August, 1985 the First Interim Award was given and this related to the expulsion of . Mvita from the construction site. Upon invitation of the parties the Arbitrator stated a special . i I ·case for the opinion of the High Court. That was in accordance with he provisions of section 10 (b) of the Arbitration Ordinance, Cap. 15 of The Revised Laws of Tanzania. I On 23 rd Jly, _ 1986 Mapigano, J. gave his decision on the case stated, reversing the Arbitrator's provisional award. Both Mvita and THA were aggrieved by the High Court opinion resulting in an appeal and a cross-appeal to the Court of Appeal of Tanzania. The Court of Appeal partly concurred with Mapigano, J. and partly reversed him. I

" f .... 12 That was on 26 th February, · 1988 1 1 and arbitration proceedings resumed on 11 th July, 1988 . Four days, after the resumption of arbitral hearing the Arbitrator I made a second !Interim Award which related to the proper identity of I , I , . the Mvita contracting party .. Subsequent to the award arbitral proceedings continued until on 25 th May, 1989 when the Arbitrator made and published a Third Interim award on certain questions of liability. THA was aggrieved by the second and third interim awards and petitioned the High Court to set them aside for the reason that the Arbitrator lacked jurisdiction ano was allegedly guilty of misconduct. So, in Miscellaneous Civil Cause No. 35 of 1992 Kyando, J. heard the petition and dismissed it on 4 th June, 1993. He upheld the Arbitrator in his award that the expulsion .of Mvita from the site was unlawful; i that the notice of expulsion which had been served on Mvita was null I and void and that a certificate of the Supervising Engineers - Messrs Berlin and Partners (Tanzania)· Limited of 20 th December, 1979 on

._ ,. .. I 13 which forfeiture of assets and expulsion of Mvita was based, was null and void. Kyando, J. then directed the Arbitrator to. proceed with the hearing and determination of quntum of damages. THA sou·ght to challenge Kyando, J.'s decision in the Court of Appeal by filing Civil Appeal No. 9 of 1994. This appeal was struck out on 14 th October, 1994 for the reason that it was time barred. An application for extension of time to apply for leave to appeal was dismissed by Bubeshi, J. on 31 st March, 1995. THA again raised the issue of the jurisdiction of the Arbitrato and this led to the fourth Interim award by way of case stated. The Arbitrator stated 11 (eleven) questions on which the opinion of the High Court was sought. Misc. Civil Cause No. 138 of 1999 was . opened in the High Court and was heard by Msumi, Principal Judge who delivered his opinion on 23 rd January, 2001. On the whole, the High Court held against Mvita which, feeling aggrieved, has appealed to this Court, listing 46 grounds of appeal. THA has also cross- appealed, raising five substantive grounds although it later

') . I ! 14 I • I !f ' purportedly under: Rule 8,17 91) of the Court of Appeal· Rules, 1979, setting out three ubstanvEi grounds on which it is desired the High Court Opinion should be jar/ld, which sounds contradictory! .' 1/ I' : 1/I i .. ' ' , I I . Although t.he appeila/t filed 46 grounds of appeal its advocates did not argue.· each ?n~ of them but divided them into nine ii ,/ convenient gr9·ups. fr9Lments and submissions therefore were ' 'I / made in respeqt of the]niqe groups of grounds of appeal. It_ may also be said that some of tJe points which were listed as grounds of appeal are not in reity/ grounds of appeal at all but rguments or submissions if! disguile./ Such are, for example, listed grounds 15D, .: l r 18, 24, 25 a17d 25A. trrnd 15D reads:- • . . : I I . "150 - Tre ,'statute (s. 67) does not require the details /on/ the text of the statement of iClaim/P)'aift to be part of the notice or to be :'served!/ sparately on the THA Act. Had ' :i ,'/ . ,-' Parliarrier required this it would have a_nd ; could /hare, so prescribed, as it has done under/· thEe Government Proceedings Act. : ,/ '/ Ii · 1;1 i ' 1 I '! ii II I !

...

• .. • '/ Ground 18 reads:-

18. The foregoing issues were all res judicata Ground 24 re·ads:- I I I
19. : The Learned ~rincipal Judge ough_t to have found and opined that the issue of jurisdiction of the arbitrator was res judicata (sic) as the new grounds thereon now being _ urged before him, could have been, and should have been, taken on the aforesaid previous proceedings. Ground 25:- This is so regardless of whether these "new" grounds are "defences" or "legal issues" touching · the Legal Competence of the Arbitrator to determined (sic) them. 15

Ground 25A:- '/ The Respondents" "hew" points on jurisdiction were not new points coming into existence, or being discovered, 18 years later. They were, if· they have any merit (which is expressly . I denied), in existence from the very beginning I of this arbitration, and were available to the Respondent long prior to the High Court and h.ad already been dealt with and determined between the parties by courts of competent jurisdiction aforesaid proceedings in the High Court and in the Court of Appeal. 16 There are: several more :' such "grounds" and we think it is unnecessary to cite them , all. It is apparent, therefore, that the proper gro·unds of appeal are not as many as were listed by counsel for the appellant. Besides grounds 36A, 36B and 36C were abandone.d. The nine groups which summarize the grounds of appeal relate to jurisdiction of the Arbitrator, estoppel and waiver on jurisdiction, pleading·s before the Arbitrator, res judicata, Limitation period, the

17 application or otherwise of section '&7 of the Tanzania Harbours Authority Act, 1977 and clause 67 of the conditions of the Contract between the p~rties, conflicting decisions of the High Court, alleged violation of the principle of precedent and Stare decisis and Damages, costs and compensation resulting from devaluation and depreciation qf the Tanzanian Shilling. It seems to us that the issue of jurisdiction of the Arbitrator was central:' to the 11 (eleven) matters or questions which the Arbitrator referred to the High Court for its opinion. The questions which were:·referred to the High Court are the following:- : 1- Whether the claimant's pleaded claim made in these proceedings is a single cause of action for damages for the alleged wrongful repudiation of the contract. 2- Whether the claimant's claim is not one single comprehensive claim for damages at common law but a series of discrete claims

I I I I I I I I under clause 67, and; or ,under other P1ovisions of the, dontract. , ' ! 3- 'JiVhether, if therf be one, cause of action Jnd one claim onliy, that claim is within the f risdiction of te Arbitrator because the laimants have cbmplied with section 67 of the THA Act ·/nd Clause 67 o( the I ' . I fonditions of cdntract, and have referred · to Arbitration / their claim and their broceedings in f respect of that claim is . '//encompassed +ithin the Agreement to Refer, and ha'.s been pleaded by the ' i! claimant and/a is otherwise within the jurisdiction · of/ the Arbitrator . and/or . because the Re,spondents have waived any I objection to the Arbitrator's jurisdiction I . and/or are estbped from denying that the Arbitrator has j,'urisdiction to determ.ine the . said claim. j ! 'I ' ' I 4L In the light of: l 1 . . . I I j ' I. I I I I I (i) /i •I I, Se~tion 67 THA Act 1997; and 11 I 18 ' , I

1,. - - w 'I (ii) Clause 67 of the Contract between the parties What procedural and pleading requirements were to be fulfilled in order that any given matter of complaint in the ' Claimant's Schedule of damages and document C3 (Appendix 1) might be adjudicated upon and has the Claimant complied with those procedural and pleading requirements. 5- Whether the four documents referred to in the narrative are capable of fulfilling any I . appropriate procedural · requirements in tespect of the matters of complaint raised in C3. 6- Whether the matters complained of in the Claimant's Schedule of Damages and C3: 1 (i) Constitute but one "act, neglect or default" for the purposes of 19

(ii) I I .. I Sectd~ 67 'Jof the THA Act, 1997 /or are they and/or have I they !conventionally become a· ,1 numb:~r of separate "disputes i . . or diiferences" and if so, how I manyp /; 7- Whether if there: be more than one cause I I I bf action and ·seteral Claims, - the Claims or· I i, - I · :, elements of Claim as set out in the I I' - . · pchedule of Damages and "C3" are within he jurisdiction 'of the Arbitrator .because lthe · Claimant !has · ·complied with the . 1: .aforesaid section 67 of the THA Act and I' I' Clause 67, and have referred to arbitration thir claims anfd proceedings have been I I j, • commenced in /time and these claims are I . . encompassed Within the Agreement to I Refer, or -rk - otherwise within · the II . I I jurisdiction 01 the Arbitrator and/or I' .i . because the Respondent have waived any objection to. Jhe Arbitrator's jurisdiction I . . /' I and/or are est9pped from denying that the · Arbitrator has J,urisdiction to determine the said claims. I, I i I I I 20

I l I I I , I 'I I . ii . I . 8- f hether as a _ atter of construction the I • 11 • Agreement to i Refer embraces and/or 1- ' . _ . ltJrovides the Afbitrator within sufficient I . J . - j!uri?diction to dr'etermine all the matters I I. . . <t:omplained of in, the Schedule of Damages I i_ I I and 'C3' (Appendix 2). . I . . I: . I I, . 9- .WI hether the. Agrement· _to. Refer proyids . . ! . the Arbitrator wjth sufficient jurisdiction to etermine in an} final award whether as a . I ratter of fact and/or law that the . I ,Respondent's opntentio·ns as to whether he Claimant ha complied with section 67 · bf · the THA Att and/or Clause 67 are leffctive deffendes to the claim or claims or . I !whether comp_lince with section 67 of the HA Act and/o Clause 67 is· a condition · jprecedent to th~ exercise of the jurisdiction referred to in Question 8 and that such I I I I I I I I J I compliance is Courts. :II oeterminable only by the I: " ! 21

.-. 10- Whether the Arbitrator has jurisdiction as a matter of Tanzania law to cbmpensate, if appropriate in the circumstances, the claim for the effects of ; the _ devaluation of the shilling since the 9aimant's wrongful expulsion from the site. 11- Whether. the Arbitrator has jurisdiction as a matter of Tanzania law to award if appropriate in the circumstances, either simple or compound interest. 22 To begin with, under the law in Tanzania, an arbitrator's authority, power and jurisdiction are founded on the agreement of parties to a contract to submit present or future differences to arbitration. The other source of the authority, power and jurisdiction of an arbitrator in Tanzania are the provisions to be implied in submissions found in the First Schedule to the Arbitration Ordinance, Cap. 15 of the: Laws. Indeed, the parties, Mvita and THA, agreed as regards the powers of the arbitrator whom they chose to be, inter alia, as follows -

'I I , The Arbitrator shall have II the powers given I ' to arbitrators by th Arbitration Ordinance, (Cap. 15 of the Laws of Tanzania) or any I I statutory modificat\ons or re-enactment thereof and shall ma,ke and publish his award in Jrriting within tHree (3) months of the ! effective date of entering of.this reference ---. I I I i 23 · But in settling I disputes betwJen the parties in this appeal the I Arbitrator had to have recourse to Clause 67 of the Contract between I ! them. A dispute which did not come under the terms of clause 67 I I would be outside the jurisdiction' of the Arbitrator. Clause 67 1 says in part:- I I I I If any dispute or, difference of any · kind whatsoever shall arise between the Employer or 'the Engineer ,and the Contractor in I conhection with or arising out of the Contract I • or the carrying out of the works (whether I : during the progress 'of the works or after their I copletion and whther before or after the

.... terrT)ination abandonment/or breach of the Contract) it shall in the first place be referred I to and settled by the Engineer ---. All disputes or differen~es in respect of which the decision (if any) of the Engineer has not becdme final and binding --- shall be finally settled by arbitration in Tanzania in acco,rdance with the Tanzania arbitration law ---. 1 The Arbitrator shall have the power conferred on him as such by any statutory I enactment or amendment thereof from time to time in force and shall be competent to enter upon the references without any further or formal submission than is contained in the contract. The award of the Arbitrator shall be ! final ~md binding the parties. I 24 One of the questions before the High Court, Msumi, Principal Judge, was whether the pleaded matters in dispute were within the jurisdiction of th,e Arbitrator .. Such matters, eight in number, were listed in the Opinion which was rendered by the High Court and we ! think it is not necessary to repeat them here. But we wish first to dispose of the question whether Section 67 of the Tanzania Harbours

.. 25 Authority Act, No. 12 of 1977, was relevant to Mvita's claims which were before the Arbitrator. Section 67 of the THA Act relates to where "any action or other legal proceedin9 is commenced against the Authority for any act done in pursuance or execution or intended execution, of this Act ---." We are of the considered opinion that the matters which were before the Arbitrator were not "any action or other legal proceeding" within the meaning and purport of the section. The THA Act does not define the term "action" or the phrase "legal proceeding" but the term "action" in its legal sense normally means "a civil; proceeding as · may be prescribed by the rules of Court ... " See, "a Concise Law Dictionary" by P.G., Osborn, Fifth Edition. Black's Law Dictionary,' ih Edition defines "action" in its legal sense as "a 'Civil or criminal juridical proceeding". Non-legal dictionaries like Chambers Twentieth Century Dictionary defines "action", among other meanings, as "a law suit, or proceedings in court." As for' the phrase "other legal proceeding", it must be read

26 ejusdem generis with the term "action." Black's Law Dictionary defines "legal proceeding" as "Any proceeding authorized by law and instituted in a court or tribunal to acquire a right or to enforce a remedy". The Oxford Advanced Learners Dictionary, which is a layman's dictionary, defines "proceeding" as "the process of using a court of law to settle a dispute or to deal with a complaint". Section 67 of the THA .Act; therefore, envisages a situation in which court ' ' . action is taken against the THA to settle a dispute or to enforce a remedy. The High Court, Msumi, Principal Judge, said regarding Section 67 of the THA Act - --- the jurisdiction of the Arbitrator in the present case is prescribed by section 67 of THA Act and Clause 67 of the Contract. In order for the Arbitrator to oe seized with jurisdiction on any matter the party making the reference must have complied with the requirements of. these · provisions His (Arbitrator) jurisdiction is limited to only those

matters which have 'been 'brought before him in compliance with, among other requirements, the provisions of Section 67 of THA Act---. 27 We think the learned Principal Judge erred in so holding. The reference or submission to arbitration was not, we are satisfied, "action or other legal proceeding' under section 67 of the THA Act, 1977. The section was, therefore, irrelevant to the proceedings before the Arbitrator. Having found that section 67 of the THA Act, 1977 was inapplicable to the matters which were before the Arbitrator we now reiterate that his jurisdiction was founded on the agreement to submit, Clause 67 of the Contract · and any implied or express authority under the Arbitration Ordinance, Cap. 15 of the Tanzania Revised Laws. We also, at this juncture and for the avoidance of doubt, wish to highlight the distinction and similarities between the jurisdiction of

28 Courts of law arid that of an arbitrator; In the case of a court of law, a decision reached by a court without jurisdiction is null and void because jurisdiction goes to the very root of the authority of the court to adjudicate upon the case. See Ng'unda v. Ng'unda [1995] TLR 155. Also, in a court case parties cannot by mutual consent confer jurisdiction on a court which does not have jurisdiction to adjudicate on the matter. See Allarakhia v. Aga Khan [1969] E.A. 613 and Frank,M. Marealle v. Paul Kyauka Njau [1982] TLR 32. In Arbitration, like in a court of law, want of jurisdiction renders a decision and an award a nullity. Also, both in court cases and in arbitration objection to jurisdiction can be raised at any stage of the proceedings. In a civil case objection to jurisdiction can be raised even at the final appeal stage and, in an arbitration, objection can be raised even after publication of an award. However, in arbitration a party can waive objection to the jurisdiction of the arbitrator. According to Sir Michael J. Mustill and Steward C. Boyd on The Law and Practice of Commercial Arbitration in England, Butterworths 1982 Edition at page 522, irregularities of procedure in

29 i I . .. . arbitration can be readily waived "but the jurisdiction of the arbitrator I I must always depend on an agreement by the parties to abide by his I I award." For example, a party iho appoints an unqualified arbitrator cannot afterwards complain that the arbitrator had no jurisdiction. I I Also, a party who relies on an arbitration agreement to have an I I action stayed and the claim referred to arbitration cannot later assert I j that the claim is outside the' scope of the agreement. These ' j examples though they relate to waiver, are more in the nature of , I estoppel. What seems to come: out of these examples is that waiver of objection to the jurisdiction I of the arbitrator is in quite limited 1 circumstances, ,either in relatio~ to mere irregularities or in estoppel situations. We now wish to go back! to the question whether the pleaded i matters in disp'ute were within the jurisdiction of the Arbitrator. The . I High Court found that since M~ita had not complied with Section 67 of the THA Ad, 1977 and alsJ had not complied with Clause 67 of I I I the Contract, the pleaded matters in dispute were not within the jurisdiction of ~he Arbitrator. : i I I I I

30 We already found that Section 1 £7 of the THA Act, 1977 was inapplicable to the arbitration proceedings, and the High Court erred ! to the extent th!at it found Section 67 applicable. But it was correct to say that Clause 67 of the Contract was applicable. The question, however, is whether all the pleaded matters in dispute were outside the parameters of Clause 67 of the Contract as held by the High Court. Clause 67 provides the prerequisites for a matter to go to arbitration. There are the conditions such as that a matter must first be referred to and settled by the Engineer within a given period of 90 i I days after reference to him. The Engineer too is expected to give a written notice of his decision to the parties. If a party is dissatisfied with the Engineer's decision he may within 90 days after receiving notice of such decision require that the matter be referred to arbitration. It is not in dispute that some of the matters which were referred to arbitration and had formed part of the pleaded matters in

. l , ":. 31 dispute did not comply with Clause 6J. Mr. Nowrojee has argued very forcefully that the THA had willingly submitted to arbitration on all those matters and that for a whole period of eighteen years they appeared to accept that the Arbitrator had jurisdiction notwithstanding the non-compliance with Clause 67. Furthermore, that if parties appear before an arbitrator and participate in the proceedings until an award is given, such conduct is sufficient proof that the parties agreed to be bound by the award and should not be heard to complain later that the arbitrator lacked jurisdiction. In the alternative, Mr. N'owrojee was arguing thatTHA had waived objection to jurisdiction or had acquiesced or ratified the process and was e estopped from 9uestioning it later. Mr. Lamb, QC does not concede that they had not raised objection to jurisdiction for a whole 18 years and referred the Court to paragraph 4.1 of the Points of Defence in which it was said:- 4. r In so far as averments under this section constitute the basis of the Claims under section 5 of the Points of Claim the

. . • ,... I c ' Respondent raises a: preliminary objection to the effect that the following averments in this section and the corresponding claims in sectjon 5 are incqmpetent and therefore inadmissible because they have not been in ' dispute between the !Parties that is to say:- I . (a) Averments and Claims which (b) . I relate to1 matters that have not I been the! subject of the Engineer's Decision. Averments and Claims which ' I relate to · matters that have been the subject of Engineer's Decision No. 12 : but decision of the Engineer ;has not been disputed in I time---. (c) Averments and Claim which relate to matters that have been subject of Engineer's decision No. 12 but which have not been set out in Agreeme~t to Refer --- . ! 32

33 I - On 16 th December,· 1983 late (Mkud&, then of the Tanzania Legal I ' I I I I ' Corporation, acuing' as counsel fmr THA; wrote to the lawyers of Mvita I - - 1; - to indicate that THA was abandoning the above preliminary I 1· objection. · HoJever, later in a1 so-called Re-Re-Amended Points of , I i. 1: II . Defence, THA retracted the 1: abandonment of the Preliminary I •

• I Objection. In other words, the jpreliminary objection- was reinstated.
• I :i - It was said in pragrph 4.1:A J! as follows - · i I . · 4.1:ll\ For the a 1 oidance of doubt the I : I Respondent withtjraws the concession coniained in the lettr of 16 th December, 1983 ' I Ii C wri~en on its beha 1 ilf by_ the Tanza_nia Legal Corporatio_n (i.e. M-r.jTom Mkude). 11 . r
• • I - - - The -pleadings were still being filed by way of amendments and the I , I I
• I -·so-called Re-R~-Amendments. V')e think. it was legitimate for THA to restore their peliminary objection and, therefore, . it would not be correct to say Jhat THA had no at all raised objection to jurisdiction, I - - - not to mention, that even befo~e Kyando, J. there was objection to jurisdiction. It /must be said, hJwever, that the instances of objection I I I i

. ' . 34 were limited in scope (to claims under section 5 of the Points of ' Claim) and werEr not all - encompasing. We share' the Arbitrator's, 1 and by implication the High Court's categorization of Mvita's claims; that the first category comprised those claims which arose out of the contract as a whole and related to Mvita's carr'){ing out of the works prior to expulsion. The second category of the claims which relate to the use, retention and or sale of Mvita's plant, materials and temporary works. The third category related to the claim for general and special damages following what I I was later adjuqged unlawful expulsion. Mvita argued before the 'High Court - Msumi, Principal Judge, that as regards the post-repudiation claims, the issue was res judicata because Kyando, J. had dealt with the issues of liability and I had decided that the Arbitrator had jurisdiction to deal with all those issues.

• 35 The THA disputed that contentidh, maintaining that Kyando, J., had decided only on questions of locus standi and identity of Mvita; that the expulsion was unlawful; on the questions of mistake and misrepresentation and on alleged misconduct of the Arbitrator. The -High Court (Msumi, Principal Judge) agreed with THA's contention and said:- On the question whether all issues of liability have been finally determined by Kyando, J. I had the advantage of going through the

• records of the case in question. I am respectfully of the respondent's view that not all jssues of liability have been determined in the case. Indeed this view is also shared by the Arbitrator and the Claimant (Mvita)---. i The Categories of liability which are relevant for the final determination of the pa~ties' dispute have not been exhausted by . Kyando, J. in his judgment (sic). This assertion is, respectfully, without prejudice to I . Kyando, J.'s direction that the Arbitrator should proceed to determine the quantum of

, damages. I am thereforey of the considered view that the issues raised in this case are properly before the court. 36 We agree with the High Court that Kyando, J. did not decide on all the issues of liability and that his decision is limited to the matters as explained by THA. We also reiterate that disputes could be referred to Arbitration only if the procedure in Clause 67 of the Contract was followed. It could have been argued by Mvita that considering that it was the Engineer who initiated the ,purported repudiation of the contract and the unlawful expulsion of Mvita it would have been an exercise in futility to refer any disputes to the Engineer before further reference to arbitration. But it is apparent that Mvita was not inhibited. It in fact invoked the provisions of Clause 67 of the Contract to refer the dispute over its expulsion to the Engineer who gave his Decision No. 11 in conformity with the clause. Subsequently Mvita included that decision among the matters to be referred to Arbitration under "Matters in Dispute in Differen,ce" item 4. It must have treated the

, I I ! ' 37 contract as still lsusisting and luld bave done the same for all the I I' other disputes./ Therefore, su,bject to what we will. say later on · . I /, . waiver, estoppel, acquiescence/; and ratification, failure by Mvita to follow the pr°lbedure under 11ause 67 made the Arbitrator lack jurisdictionto deal with those 1atters. Furthermore, since Kyando, J. I . . /' did not deal with ;all the issues/' of l!ability, there could not be a valid I I' . . plea of resju?icafa when THA liaised the Complaints on jurisdiction. . I ' I . I I . ! Was there _waiver or est9ppel? Msumi, Principal Judge held the · view that thee. was waiver a~d estoppel regarding Mvita's failure to . ! ' 1: comply with Cilause 67. He sa,lid:- 1 ( I t I . I . /1 Sb in the present/'case the waiver in question I :, . . is only sustainabile against challenge of the Jrbitrator's ObJ-ttion based on claimant's I : i' . · failure to comp,ly with Clause .67 of the I . I · · I I I I I G:ontract and mot on non-compliance of I ,, -ii',, $ection 67 of I.the Act ---. As for the I ' Ii . alternative argument of estoppel, the court is I 1 • 6f :the opinion 1hat this plea is sustainable I . . . against preliminary objection based on non- 1 P- , , I ' I ;

' ' ... compliance of Clause 67 of the Contract and not against non-compliance of Section 67. Based on these findings the court is of the opinion that the Arbitrator has no jurisdiction to entertain the pleaded claims. 38 We have already held that Section 67 of the THA Act, 1977 is not relevant to proceedings in arbitration. Once Section 67 of the THA Act is put out of the way the position as far as the High Court was concerned was that THA had waived the failure by Mvita to comply with the procedural requirements of Clause 67 of the Contract and from that perspective the Arbitrator would have jurisdiction to hear the dispute on the pleaded claims. Although it is obvious to us as we have previously indicated that Kyando, J. did not deal with all _aspects _ of objection to jurisdiction, we are of the considered view that THA had indeed, by conduct, waived objection to jurisdiction following Mvita's failure to comply with the procedural pre-conditions under Clause 67 to submission to Arbitration. In Mr. Lamb's letter dated 4 th June, 1997 to Mr. G.F. Hawker, the Arbitrator, he said:-

. Ii . •• 39 I 'I I l I hve ·broad instru<ltions to bring this matter. i ' . ! . to ~ conclusion exp$ditiously. ---. My clients I. I . are/ anxious to proeed and, indeed, a. team froi. Dar es Salam is arriving at the I ( be@inning of July _j __ _ ' I I l W¢ feel, with all due respect, that it is time I f . fo MVITA forma[ly to plead its quantum / ( claim. From that pleading and our response it I . . I . I . . .. sh'ould be· possible 1 to ·distill points of principle, te resolution of /which will go a long way . I I . tqwrds disposing/ of this matter. I I I . I I . { With all resp:ect to THA, we find it somewhat refractory for it to turn . I ' round to coplain that the rbitrator had no jurisdiction. It did not , r say it was /submitting to if risdiction under protest or that it was reserving it right to raise /objection to jurisdiction. after an a·ward. / l . ·I . . l . We take it/therefore that ry]r. Lamb, QC on behalf of THA, was by. . . . f . . implication/ expressing willi[lgness to participate in Arbitration when . I Mvita forall' pleaded its/ quantum Claim. The following passage. I i I l from Wes~minster Chem 1 icals and Produce Ltd. v. Eichholz and I I f ! I ·11 -I I I . ! I I , ; ' I

.... .. I I ! I I I 40

• I ' Loeser [1954] :Vol. 1 QB reported in):.loyds List Law Reports, 99 at I r - - page 105, per 'ustice Devlin, is perhaps relevant: I - I I .. I /' . . ---QI)f there is •an agreement and if one of the ; -r· . parties has studie¢1 before hand and thinks tht the dispute is/outside it, he can then go · bdfore the arbitrtor, if he so wishes, and I . I pjotest. If he profests against the jurisdiction of the arbitrator -f- .it is held that he can take I :' plart_ in the arbitrbon without losing his rights a'nd what he is oing in .effect is that he is I . I . tjllerely saying: 'l _will come before you, but I 1 ti m not, by my tjonduct in coming before you I . i . iand arguing the 1,case, to be taken as agreeing I i /to acept your avvard ... I /' I !I / All those/ fundamental doctrines flow / from the prin~iple, which I think is well I - :· . - / established; th.st if a man does not protest, I ., . . . . .. / but if, as it lis called, he submits to the / 1,' I jurisdiction of the arbitrator, he is then bound / j I by the award. r I . I; I I I /'. I - . I Ii- I i' I . I I I I I i \ i r'· I , I t ( f . I

.- r l Later at page 109 the court said - '/ The whole essence of the doctrine of this ·· Coyrt is that you must protest at once. If you ' ' tae part in the:' arbitration you thereby, mrely by taking part in it, prima facie make ' ' th~ agreement. ' ' ' 41 The agreemnt referred to ere_ is the agreement to accept. to be bound by the award. It mut be noted, hoJvever, as clarified by Mr. Lamb, QC for THA, that it was not its cas that the Arbitrator had no jurisdiction at all. Indeeq, THA could not _in all sincerity advance such an argument. If we undrstand THA's sdnd correctly, it appears to us that THA is ' ' ' I conteridin that matters qf claim contained in the Re-Re-amendeq I I Points of Claim were not subject to arbitration first because requisite notice Wqs not served uner Clause 67 in respect of all the decisions ' of the E17:gineer but only i'n respect of some of the decisions. Further I I ' I that as regards the majority of the matters for which Mvita sought relief thre was no refer~nce at all to the Engineer for decision. We

,. t I .. I I 42 have already dealt with this complair),t. Mvita did not dispute that there was non-compliance with Clause 67 regarding some of the matters taken to arbitration but claimed there had been waiver and or estoppel. Secondly, that Damage Elements 1 to 8 which contain a number of specific claims set out in Document "C3" did not meet threshold tests, that is to say that they were not time-barred under section 67 of the THA Act, 1977, that they complied with Clause 67 of the Contract; that they were referred under the terms of the Agreement to refer and that they had been properly pleaded. Unless they passed all those tests, then the Arbitrator had no jurisdiction. Earlier in the judgment we disposed of the relevance of Section 67 of the THA Act, 1977. So, the question whether the claims were time-barred under Section 67 of the THA, 1977 is no longer an issue before us. The questions to explore are whether the claims were referred under the terms of the Agreement to Refer and had been pleaded.

• 'I I .. 43 We wish to make two general'jpronouncements. First, that objection to jurisdiction in respect of claims which had been made prior to the Third Interim Award and Kyando, J.'s ruling (of 4 th June, 1993) whether or not they complied with procedural requirements of Clause 67 of the Contract should be taken to have been waved. This is because tere was no clar indication that participation in the arbitration was made without prejudice. Objection to jurisdiction had been made in a limited issue ·which did not encompass the objections which were 1hlade and which' led to the fourth Interim Award and the subsequent:' Special Case Stated to the High Court. Secondly, certain claims or o·amage elements were raised by Mvita after Kyando, J.'s Ruling. These included the Claim for Costs and for Compensation arising from Devaluation .. ' We think THA was entitled to raise objection to jurisdiction of the Arbitrator on these later claims. We: think that once we take the view that THA's objection to jurisdiction regarding the "new" matters such as the claim for compensation resulting from devaluation and depreciation of the shilling was valid, we find no useful purpose to consider whether

f f I, I ' - i I 44 : / such claims hd been properjy pleaded. This time THA raised j ii I i · objection timely to the jurisdiction of the Arbitrator.. Mvita had not . I . . i ; complied with/ Clause 67 of /he Contract regarding those "new" matters and te question of \Vaiver on the part of .THA could not be ' ' I I validly raised./ I .. I I . I t I i I I I . . . We do /not accept the 1ontention by Mvita that the opinion by ' i : Msu.mi, Pri_ndipal Judge, conflicted with Kyando, J. We agree that / . I I 1, Kyando, J., id not decide q 1 n all the issues of liability and that was I II , ' \ : I what Msumi 1 , P.J. said - "I a:m respectively of respondent's view that . ' ' I I not all issuEis of liability were determined in that case (before Kyando, I I, I . . J.)." In tht logic we find 1 that there were no conflicting High Court ! ' • I I . decisions nor is res judicta a valid ground of complaint. To the j ' I extent tha't Kyando, J. ruled that the arbitrator should proceed to I ' . I i deal with buantum, that d.bcision is intact. But the Arbitrator should I , : ! ' deal with /quantum to the 1bxtent only of the matters on which he had ' ' i I j ' ' . jurisdictiqn :largely becase THA had, as decided by -this Court, I , I ' waived its objection to Jurisdiction. In other words, the Arbitrator . I :. I I I I had acqired jurisdiction 1 because of the default on the part of THA. i I I I I I : I I I I t 1 i i i I' I 1· I

◄ •• ·' IJ ,, • 45 But as regards! the claims which were "new" and were pleaded by Mvita subsequent to the ruling by Kyando, J., and to which THA has ' . ' timeously raied jurisdictional objection, we uphold the objection and the Arbitrator may not proceed to deal with any such claims. It was :Indicated earlier in the judgment that THA had filed a ·, Notice of Cr:ss-Appeal containing five substantive grounds but at the hearing the,: fourth ground was abandoned. Mr. Kabuta for THA urged the cr:bss-appeal. In th~ first ground of the cross-appeal the Principal Judge is criticized in: giving the following opinion - ! As for the alternative argument of estoppel, i the court is of the opinion that this plea is sustainable against preliminary objection based on non-compliance of Clause 67 of the Contract and not against non-compliance of Section 67.

,!., I THA thinks that the High Court should,}1ave held that - (a).: none of the matters relied upon by the appellant (Mvita) as founding the waiver/estoppel operated to circumvent the contractual requirements to refer i disputes to the Engineer under Clause 67 of the Construction Contract; I (Q) if there had been any such waiver or estoppel th~ Arbitrator in the exercise of his discretion had allowed the respondent' to resile from it; ,'( c) the court ;cannot substitute its opinion ' for that of the Arbitrator on a matter of . discretion: I ' l ' 46 Mr. Nowrqjee disputes that the Arbitrator had allowed THA to resile I ' from gen~ral waiver or estoppel but had only allowed THA to resile in ' ' respect of Mkude's letter. / ' '

• 47 We think: the High Court was Qorrect in that opinion but as regards Section 67 of the THA Act, we need not repeat our opinion that it was not relevant to the proceedings before the Arbitrator. THA waived its objection to the non-compliance with Clause 67 of the Contract to the extent already explained earlier in this judgment. We uphold the view, however, that as a general rule the I Court may nOt substitute its own opinion for that of the Arbitrator on a matter of discretion. Where discretion was not exercised judicially or was exerised wrongly the Court can only quash the opinion and direct the arbitrator, where appropriate, to reconsider the matter in a ' judicious manner. As regards the sec:md ground in the cross-appeal the question of compensation for devaluation had not been decided by the Arbitrator'.· In any case, since it was one of the "new" claims which we considered should have but did not comply with Clause 67 of the Contract .'it is unnecessary for us to consider as an academic matter whether :or not the arbitrator could award compensation. The cases ·

• ,,i:. 48 cited, that is to say, National Bank of Commerce v. Perma Shoe Company [;988] TLR 224 and Zuberi Agustino v. Anicet ' Mugabe [1992] TLR 137 are both authorities that compensation for devaluation is: payable but these authorities are not helpful to either party in this appeal because of failure by Mvita to comply with the procedural pre-condition in Clause 67 of the Contract. On the third ground i~ the cross-appeal, we uphold the High Court on the law regarding the award of simple and compound interest. It is left to the Arbitrator to decide whether he will allow simple or compound inte~est taking into account, among other .things, Clause 60 (10) of the Contract of Construction. If the 5 th ground of ,the cross appeal is a summing up of the first, second and third grounds in the cross-appeal we will say that in some instances, like in the case whether or not an arbitrator can assess and award simple or compound interest, it is legitimate for the arbitrator to take a decision and make an award. In all the claims which the Court considers were properly before the Arbitrator either

. • } I 49 because the procedural pre-requisitesjWere followed or because the THA had not raised objection to jurisdiction, it is competent for the Arbitrator to adjudicate and give awards. All-in-all, the cross-appeal is dismissed with costs. The Notice of Affirmation is made under Rule 87 (1) of the Court Rules, 1979. That provision does not relate to Notice of a- t Affirmation. Rule 87 {1) is on Notice of Cross-appeal. The relevant provision should have been Rule 93 (1) which provides for Notice of grounds for affirmation of a decision of the High Court. I In a number of cases this Court has held that it must be moved under the correct enabling 'ixovision of the law otherwise a prayer or application is. incompetent .and will not be considered. In National Bank of Commerce v. Sadrudin Meghji, Civil Application No. 20 of 1997 _(unreported) an application for revision which cited the wrong provision of the law was dismissed for incompetence on the ground that the Court had not been properly moved. That view of the Court was followed in several subsequent decisions of the Court

, -, 9· 50 I • ,! ! 1: I Ii ' I ; i, . __ I Ii . like Almas Iddie Mwinyi v. ~atioh'al sank of Commerce and . f . . Another, Civil Application No. ~8 of 1998 (unreported) and Citibank i: I . I· . . . Tanzania Ltd. v,. Tanzania Telecommunication Co. Ltd. and 5 r )' I' Otber..s, Civil Application No. 4 of 2003 (unreported). In this last 1: cited case the Court said:- I: I 1, : !: . Il hardly needs Jo be emphasized that in a jotice of motion i an applicant must state the Jpecific provisio of the law under which an I I' , , ~pplicant wants lio move the Court to exercise I. : :: its jurisdiction. I: I !: 1: In most ot· those cases an!' application· was dismissed because either . I, that no enab;ing provision !was cited or a wrong provision was cjted. The principle is that the cburt Will notConsider prayers like the ones I ' . I . in the Notice of Affirmatioh where the wrong provision of the Rules of ! . I . I' the · Court was cited i The . notice is therefore dismissed for I . . l ii incompetence. 1: i: I . I:

I ' I ' ·, ' 51 We wish to observe also as hinted earlier that in fact there is apparent contradiction in the Notice of Affirmation. It reads - TAKE NOTICE that on the hearing of this appeal,. the above · named Respondent will contend that the above mentioned decision bug ht to be varied in part to the extent and in :'the manner and on the grounds hereinafter : set out namely:!. The notice shows dissatisfaction with parts of the judgment sought to be affirmed. We wish to summarize that the appeal partly succeeds. For exampl~·, because of estoppel against the respondent, the Arbitrator ··· ' had juriisdiction on claims which were made prior to objection to : . . I jurisdiction being raised. The cross-appeal and the Notice of ' Affirmation are dismissed with costs. The appellant will get half the costs to be taxed and we certify for two counsel.

. I GIVEN AT DAR ES SALAAM t~is w' h day of August, 2005. i A. S. L. RAMADHANl tUSTICE Of APPEA.b I J. A. MROSO JUSTICE Of APPEAL

• . ' - ' ' I I l S. N. KAJl JUSTiCE Of APPEAL

I certify that this is a true copy of the original. 52