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REGISTRATION_OF_RELIGIOUS_INSTITUTIONS__1721506838
REGISTRATION_OF_RELIGIOUS_INSTITUTIONS__1721506838
REGISTRATION_OF_RELIGIOUS_INSTITUTIONS__1721506838
AT PAR ES SALAAM
KEREFU. J.A.:
Dodoma Municipality' (now the Dodoma City) was entered on 3rd July,
2017. In that contract, the DCT (the employer), procured the services of
the site meetings, which involved all relevant parties, it was agreed that
the site was to be handed over to the appellant on 8th September, 2017
project and 7th September, 2018, the project completion date. Then, the
DCT engaged the services of M/S K&M Archplan (T) Ltd as its project's
Lead Consultant.
4th September, 2017 and the third batch for TZS 300,000,000.00 on 6th
September 2017.
Subsequently, on 13th October, 2017, a 2nd site meeting was
allegedly convened where the appellant raised a red flag regarding the
partial payments by the DCT. Thus, three days later, on 16th October,
2017, the DCT released the fourth batch at the tune of TZS
227,342,498.00.
However, over a course of time, things did not work out well as
planned because, in its letter, dated 20th April, 2018, the DCT terminated
the said contract due to the failure by the appellant to adhere to the
protested against the said termination and notified the DCT that there
of the contract, the appellant initiated the arbitral process under the
verifying the legal status of the respondent, Mr. Ambrose Shayo, the
learned counsel for the appellant, in his letter dated 19th May, 2018
(RITA), requested for the information on the legal status of the DCT. In
its letter, dated 29th May, 2018, RITA responded that, the Board of
Trustees for the DCT, composed of five members, was registered under
seeking for (i) an interim award that the legal identity of the respondent
is the registered trustees of the DCT; and (ii) that, all documents filed
before the arbitral tribunal in connection with the contract to refer to the
issue having been unsolved between the parties, was included among
before him, the arbitrator decided the matter in favour of the appellant.
As regards the legal status of the DCT, it was the finding of the
DCT...' As such, the arbitrator issued the final award in the name of the
the arbitration.
On 21st January, 2020, the arbitrator filed the said award in the
2020 challenging the enforcement of the arbitral award. The filing of the
High Court Judge thus, paving way for the two applications i.e Misc.
Before the High Court, the respondent assailed the final award on
fifteen grounds which were to the effect that the said award was
improperly procured as; one, the arbitrator did not have the requisite
dispute resolution procedures set out in the arbitration contract and the
NCC Arbitration Rules, 2001 as, the respondent, a legal entity was never
was brought against a wrong party incapable of being sued and the
award was erroneously issued in the name of the respondent who was
not a party to the appellant's claim. It was the argument of the
respondent that, the said errors constituted fatal defects which rendered
invited the learned High Court Judge to set aside the award for being
improperly procured.
arguing that, since the parties have agreed to settle their dispute in
March, 2019 where the respondent withdrew the case lodged against
the appellant, on the said issues, without leave to re-file. The appellant
also urged the learned High Court Judge to invoke the principle of
for the parties, the learned High Court Judge found that the arbitrator
of the respondent. Thus, the learned High Court Judge found that the
act done by the arbitrator was not only in excess of his jurisdiction, but
such, the said award was set aside with costs for being improperly
procured.
learned counsel for the parties had earlier on lodged their respective
submissions. We wish to state at this juncture that for reasons that will
appeal. For the sake of clarity, the said grounds are to the effect that:
determine (i) the legal identity of the DCT and (ii) that, all documents
filed before the arbitral tribunal, shall refer to the DCT as per the names
It was, therefore, his argument that, since those issues were decided
upon by the arbitrator and the parties have agreed to settle their dispute
award issued by the said arbitrator on 13th December, 2019 was final
and binding on the parties. As such, Mr. Shayo blamed the respondent
record of appeal and argued that, the arbitrator relied on the evidence
adduced by RW7 and correctly found that the respondent was using two
issue the final award in the name of the respondent. As such, Mr. Shayo
by using a name which she knew that cannot be sued, the Court should
of the law. He clarified that, since Mr. Shayo conceded that, before the
arbitrator, the appellant instituted her claim against the DCT, a non
existing entity which cannot sue or be sued, the said claim was legally
persons, are sued and can sue in their incorporation names and not
registered names as the said names do not give them any legal
amending the parties' pleadings by issuing his final award in the name of
the respondent who was not a party to the arbitral proceedings. It was
his argument that, having noted that the appellant's claim was brought
under a wrong party, the arbitrator ought to have struck out the matter
and or order for the amendment of the same, instead of him assuming
the role of a party (the appellant) and amend the parties' pleadings.
10
Rounding up his submission, in support of his position, Mr. Mkumbukwa
Heguye, Labour Revision No. 5 of 2019 [2019] TZHC 37: [14 November
2019: TanzLII] and then urged us to dismiss the appeal with costs for
lack of merit.
advanced by the learned counsel for the parties and examined the
record of appeal before us, the main issue for our consideration is
whether it was proper for the learned High Court Judge to set aside the
Before doing so, it is crucial to state that, this being a first appeal,
ii
Jamal A. Tamim v. Felix Francis Mkosamali & The Attorney
General, Civil Appeal No. 110 of 2012 [2013] TZCA 342: [3 May 2013:
TanzLII].
the matter as, for a person to bring a matter before the court or a
Thaaqib Islamic Centre, Civil Appeal No. 2 of 2020 [2021] TZCA 342:
[27 July 2021: TanzLII] and Ilela Village Council v. Ansaar Muslim
Youth Centre & Another, Civil Appeal No. 317 of 2019 [2021] TZCA
of the fact that, in his submission before us, although, Mr. Shayo
proper for the respondent to have re-opened it before the High Court
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and also in this Court. With profound respect, we find the submission by
Mr. Shayo on this aspect misconceived because, the same being a legal
types of persons who can sue and or be sued. These are the natural and
legal (artificial) persons. The artificial persons include companies and the
Societies Act, Cap. 337 (the Societies Act). The procedure is well
its name which under section 5 of the same Act shall include the words
is deemed to have been incorporated, thus can only sue and be sued in
It follows therefore that, before the arbitrator, the DCT could not
13
because, such a name did not clothe it with legal personality. We thus
agree with the submission made by Mr. Mkumbukwa that, since the
appellant's claim before the arbitrator was brought against the DCT, a
equally wrong for the arbitrator to proceed with the said matter and
finally issue an award in the name of the respondent who was not a
of the arbitrator, the learned High Court judge, correctly in our view,
concluded that:
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tainted with an illegality, was wrongly procured
and, as a m atter o f law, should be se t aside."
support his conclusion that the award was improperly procured as it was
issued in the name of the respondent who was not a party to the arbitral
(as he then was) stated that, " No other body o f unincorporated trustees
personality."
person, the arbitrator ought to have struck out the matter for being
him assuming the role of a party and amend the pleadings. In the
15
Judge's findings is, with respect, without any justification. In the event,
by the appellant.
In the event, and for the foregoing reasons, we hereby dismiss the
G. A. M. NDIKA
JUSTICE OF APPEAL
R. J. KEREFU
JUSTICE OF APPEAL
P. J. NGWEMBE
JUSTICE OF APPEAL
The Judgment delivered this 17th day of July, 2024 in the presence of
Mr. George Ambrose Shayo assisted by Mr. Safari Malata both learned
counsels for the Appellant and Mr. Denis Malamba assisted by Mr. Lucas