Tanzania Cotton Marketing Board v Cogecot Cotton Company SA 1997 TLR 165 (CA)

TANZANIA COTTON MARKETING BOARD v COGECOT COTTON COMPANY SA 1997 TLR 165 (CA)

Court Court of Appeal of Tanzania - Dar es Salaam

Judge Kisanga JJA, Mfalila JJA and Lubuva JJA

B

CIVIL APPEAL 2 OF 1997

16 June 1997

(An appeal from the decision of the High Court of Tanzania at Dar es Salaam, Kaji J)

Flynote

Arbitration - Award - Enforcement of - Filing of arbitration award - Not necessary that this be done by arbitrator himself - Arbitration Ordinance s 11(2) Chapter 15. Arbitration - Award - Enforcement of - Filing of arbitration award - Award forwarded by courier and not registered D post - Compliance with rule 4 of Arbitration Rules, 1957.

-Headnote

The appellant appealed against the decision of the High Court which had granted an application for the formal filing of an arbitration award. The appellant contended (a) that the court had erred in E allowing the filing as there had not been compliance with s 11(2) of the Arbitration Ordinance Chapter 15 in that the arbitrator had not filed the award but had had it filed by a firm of advocates; and (b) that the filing was irregular as the award had been forwarded by DHL courier and not by registered post as required by rule 4 of the Arbitration Rules, 1957.

Held:

(i) There was no reason for a restrictive interpretation of the provisions of s 11(2) which allowed the arbitrator to `cause the award, or a signed copy of it to be filed in the court'. The import of this was that the arbitrator could either file the award himself in court or G could cause the award to be filed by instructing somebody else to do it on his behalf;

(ii) the words `registered post' had to be interpreted widely enough in order to take into account the current development in communication technology, such as courier postal services, that had taken place since 1957 when the rules were enacted. In the H circumstances the award had been properly filed.

Case Information

Appeal dismissed.

Cases referred to:

1. Volkart Brothers v Achrajram & others [1933] AIR Sind 160 1997 TLR p166

2. Achrajsing v Achirajram Sahmi [1933] AIR Sind 78

3. Ahmed Musaji Saleji [1912] 40 ILJ 212 

Mselem for the appellant.

Dr Kapinga and Ms Kasonda for the respondent.

[zJDz]Judgment

B Lubuva JA:

The appellant, Tanzania Cotton Marketing Board (hereinafter referred to as the appellant) has appealed against the decision of the High Court (Kaji J) sitting in Dar as Salaam in Misc Civil Cause No 34 of 1996. In that case the respondent, Cogecot Cotton Company SA, a limited liability C company incorporated in Geneva, Switzerland had filed an arbitration award in the High Court of Tanzania at Dar es Salaam. The background of the case is as follows: Between 1993 and 1994, the appellant and the respondent had entered into a sale agreement for the purchase of raw cotton. D The appellant was the exporter and the respondent was the buyer. A dispute arose between the appellant and the respondent which resulted in the matter being referred to arbitration before the Liverpool Cotton Association Limited. An award granted in favour of the respondent was also confirmed by the Technical Appeal Committee of the Arbitrators. Through the services of M/S E Mkono and Company Advocates the award was filed in the High Court where the appellant raised objection. The main ground of objection was that in filing the award, proper procedure as required under the Arbitration Ordinance was not followed. The learned judge overruled the objection and granted the application for the formal filing of the award. From that decision, this appeal has been F instituted.  

At the hearing of this appeal, the appellant was represented by Mr Mselem, learned counsel for the Tanzania Legal Corporation. Mr Mselem, learned counsel had also represented the appellant before G the High Court in this matter. On the other hand, the respondent was represented by Dr Kapinga assisted by Miss Kasonda, learned counsel. Five grounds of appeal had been raised in the memorandum of appeal. However, at the hearing of the appeal, Mr Mselem opted not to argue on H ground five. He argued grounds one and three together. They read as follows: 1. That the learned trial judge erred in law and facts in holding that it is the arbitrator who filed and forwarded the application for the award. I 3. That the learned trial judge erred in holding that the award is presumed to be duly filed at the instance of the arbitrator. Arguing these two grounds of appeal Mr Mselem submitted that the filing of the award was done A contrary to the law. He advanced two reasons: First, he said, the mandatory provisions of s 11(2) of the Arbitration Ordinance, chap 15 of the laws were not complied with. That is, according to Mr Mselem, under that section the award should be filed directly by the arbitrator and not through M/S Mkoro and Company Advocates who forwarded the award to the Court. Secondly, Mr Mselem B contended that as the award was forwarded to the Registrar of the High Court by DHL and not by registered post, the procedure involved was in contravention of Rule 4 of the Arbitration Rules, 1957. 

In concluding his submission on this point Mr Mselem reiterated that as long as the principal C legislation on arbitration and the relevant rules still remain unamended, any other method of communication applied in forwarding the award would be an improper procedure unknown to the law. And so the matter was not properly before the Court Mr Mselem insisted. D Dr Kapinga, learned counsel for the respondent maintained that M/S Mkono and Company advocates were duly instructed by the arbitrators to forward the award to the Registrar of the High Court for filing. In support of this submission Dr Kapinga referred to the letter dated 1 March 1996 E address to Registrar High Court by the arbitrator. In that letter Dr Kapinga submitted, it is clearly stated that the respondent, a party to the arbitration, had requested the arbitrators to file the award in the High Court. On that basis Dr Kapinga submitted that it was the arbitrator who forwarded the F award as required under s 11(2) of the Arbitration Ordinance. Alternatively, Dr Kapinga took the view that even if it is accepted that M/S Mkono and Company Advocates forwarded the award for filing in Court on behalf of the arbitrators, that would still be proper under the law. The reason for that, Dr Kapinga stated, was that s 11(2) of the Arbitration Ordinance, chap 15 is such that an award can be G filed by some other person who is duly instructed by the arbitrators.  

It is to be observed that the words used in that section are to the effect that the arbitrators or umpire shall, at the request of the party to the submission cause the award to be filed in the court. In the view of Dr Kapinga, causing H to be filed in the court, means that at the initiative of the arbitrators, any other person who is so instructed can properly file an award in the court as it was done in this case by M/S Mkono and Company Advocates. In support of this contention, Dr Kapinga, learned counsel, referred to the book titled Law of Arbitration by the learned author S D I A Singh, 9th ed which has an exhaustive and analytical commentary on the Indian Arbitration Act at 251 para 18. Dr Kapinga also drew out attention to the fact that s 15 of the Arbitration Act, 1899 of India is equivalent to our s 11(2) of the Arbitration Ordinance of Tanzania and that India also has the B equivalent of Rules 4 and 5 of our Arbitration Rules, 1957. The central issue for consideration in this appeal is whether the award was properly filed in the court. Mr Mselem, as already indicated vigorously contended that it was not. At this juncture we think it is appropriate to examine closely the provisions of s 11(2) of the Arbitration Ordinance, chap C 15 of the Laws. It reads: `11(2) -- The Arbitrators or umpire, shall, at the request of any party to the submission or any person claiming under him, and upon payment of the fees and charges due in respect of arbitration and award, and of the costs D and charges of filing the award cause the award, or a signed copy of it to be filed in the Court, and notice of the filing shall be given to the parties by the arbitrators or umpire' (emphasis supplied). 

From the wording of this subsection, the question that has engaged our minds considerably is whether the law as it stands makes it mandatory for the award to be filed by the arbitrator himself personally. On this, we are, with respect, unable to accept Mr Mselem's submission that as a matter of law, the filing of the award must be done by the arbitrator himself to the exclusion of any F other person. We can find no reason or justification for such a restrictive interpretation of the law. We are respectfully in agreement with Dr Kapinga, learned counsel for the respondent that the wording of this section is such that at the request of the party involved in the arbitration, the arbitrator can instruct some other person to file the award in Court. In our view, this is because the operative words in the section are those underlined in the extract above. That is, `upon request, the arbitrator shall cause the award to be filed in court'. In our considered opinion, the import of the word `cause' in its literal ordinary meaning is that the arbitrator can either file the award himself in H Court or can cause by instructing somebody else to do it on his behalf. This we think accords more with the practical realities of life where it is not feasible for one to attend to all matters physically in person everywhere. For that reason it is a common phenomenon to have professional bodies such as law firms instructed to take up cases on behalf of other firms or clients in far distant places. We I are reinforced in this view by the commentaries of the learned author S D Singh in this book Law of Arbitration, 9th ed p 251 where in para 18 - A Filing of the award under ss (2) of s 2 of the Indian Arbitration Act, 1940, the equivalent of our s 11(2) of the Arbitration Ordinance it is observed:  

The actual filing by the arbitrator or umpire is not essential -- it is sufficient if he causes the award to be filed and B even if he forwards the award by post to the Court there would be sufficient compliance with the provision of sub-section (2). -- The act of filing of the award must be his or on his behalf....' In the circumstances, we are satisfied that the filing of the award by M/S Mkono and Company C Advocates on the instruction of the arbitrators, was sufficient compliance with s 11(2) of the Arbitration Ordinance. With respect, we can find no fault with the learned Trial Judge in his holding on this point. On the other hand, the matter could be carried even further. As already indicated, the arbitrators -- D the Liverpool Cotton Association Ltd, by their letter dated 1 March 1996, addressed to the Registrar, High Court Dar es Salaam forwarded the award for filing. That was done in compliance with Rule 4 of the Arbitration Rules, 1957. In that letter the arbitrators in clear terms have stated that E they have been requested by the respondent, a party to the arbitration to cause the filing of the award in court. With the letter all the required documents in terms of Rule 4 were enclosed in a sealed envelope which was forwarded to M/S Mkono and Company Advocates by DHL. 

As F requested, M/S Mkono and Company Advocates forwarded the sealed envelope to the Registrar High Court with a covering letter of 11 March 1996. The Arbitrator's letter of 1 March 1996 is to the effect that the arbitrators had been requested by the respondents to cause the award to be filed in the High Court and that M/S Mkono and Company had been instructed to pursue the matter in court. As against this background of facts which are not disputed, Mr Mselem seeks to fault the learned trial judge in holding that it was the arbitrator who forwarded the award for filing in court. We are unable to go along with Mr Mselem, learned counsel on this point. It is common knowledge that the essence and spirit behind the enactment of the law under s 11(2) of the Arbitration Ordinance chap 15 is the safe receipt of the award. That it should be received by the Registrar, High Court in the form in which it was forwarded by the arbitrator without any tampering. In this case, we can see no reason for suspecting that there was any tampering with the envelope which was received by the Registrar. In his submission before us, Mr Mselem categorically stated that he had no evidence to substantiate any suspected tampering with the envelope. We are therefore in agreement with the finding of the learned Trial Judge that the award was safely received by the Registrar. In our B considered opinion, the role played by M/S Mkono and Company Advocates in the handling of the award was that of a conduit, and therefore the learned judge properly directed himself in his finding that the award was filed by the arbitrator. For these reasons we dismiss grounds one and three.  

Then Mr Mselem, learned counsel dealt with grounds two and four. The essence of the appellant's C complaint in these grounds is that the award was not filed in accordance with the law because the courier, ie DHL used in forwarding the award is not a registered post in terms of Rule 4 of the Arbitration Rules, 1957. Briefly but firmly it was Mr Mselem's submission that the application for the filing of the award was not made by way of a petition which is a mandatory requirement under Rule D 4. There was therefore no award filed in court in terms of the rules which could be enforced in law, Mr Mselem contended. Furthermore, Mr Mselem contended that it was improper to forward the award by DHL, because the express mandatory requirement of Rule 4 is that the award is to be E forwarded by registered post. Responding to this submission Dr Kapinga submitted that the expression `registered post' which appears in Rule 4 is not a legal term of art. It should therefore be given a wide interpretation in order F to include the modern method of postage which includes other couriers ie DHL etc, Dr Kapinga urged. On the contention that the application for filing the award was not made by way of a petition as required under Rule 5 of the Arbitration Rules, 1957, Dr Kapinga maintained that in view of the clear wording of s 11(2) of the Arbitration Ordinance, the interpretation of Rule 5 should be such as G not to restrict the operation of the principal legislation. 

In the light of the provisions of s 11(2) of the Arbitration Ordinance and Rule 4, Dr Kapinga concluded, the filing of the award was in compliance with the requirement of the law. H We accept Dr Kapinga's submission regarding the interpretation of Rule 4. While it is an undisputed fact that under Rule 4 of the Arbitration Rules, 1957, the award is to be forwarded to the Registrar of the High Court by registered post, the words `registered post' should be interpreted widely enough in order to take into account the current development in communication technology I that has taken place since 1957 when the rules were enacted. It is common knowledge that since that time other modes of postage have been introduced. The DHL system A which was used in this case in among such modes of communication. With due respect to Mr Mselem, learned counsel for the appellant, it is our view that it would be impractical and unrealistic on the part of the court to give such a restrictive interpretation to the words `registered post' which B excludes other courier systems. Similarly, we are unable to accept Mr Mselem's contention that the award was not properly filed because it was not made by way of a petition as provided under Rule 5.  

It is to be observed that s 11(2) of the Arbitration Ordinance Cap 15 in essence provides to the effect that the arbitrator upon request shall `cause the award' to be filed in Court. It does not in any way restrict or specify as to how the arbitrator shall cause the award to be filed. Moreover, the words `by registered post and in a sealed envelope' are found in the subsidiary legislation under Rule 4. From the wording of the principal legislation in s 11(2) and the subsidiary legislation in Rule 4, it is apparent to us that the subsidiary legislation is more restrictive than the principal legislation. In that situation, it is our view that Rule 4 should be interpreted widely in order to accord to it a more meaningful and practical interpretation which is in line with the spirit behind the E enactment of s 11(2) of the principal legislation. In that light we are satisfied that the learned judge correctly came to the conclusion that the award was forwarded by registered post which as we have indicated should also include the DHL system which was used in this case. By parity of reasoning we are also in agreement with the learned judge that the filing of the award was properly done in terms of the law under s 11(2) of the Arbitration Ordinance and Rule 4. We accordingly dismiss grounds two and four. In conclusion, we consider it appropriate to say something about one other issue which was raised in the course of submissions before us. 

It is not directly relevant for the purpose of determining the general issue before us, but it is intended to provide guidance to those handling such matters in the future. Dr Kapinga, learned counsel for the respondent had raised the issue as to what happens after the award has been filed. Having regard to the commentaries and authorities from India which has an identical law on arbitration to the Arbitration Ordinance Cap 15, he took the view that it is not necessary as a matter of law to have any further proceedings and ruling after the award has been received by the court. For this proposition, he referred us to the Indian cases of: Volkart Brothers v Achrajram & Others (1) and Achrajsing v Achirajram Sahmi (2). A In upholding Dr Kapinga on this submission the learned judge lamented: `This is very interesting because if the position is so then I have wasted my time and energy for nothing. I have wasted my time for merely recording a fact that the award had been caused to be filed at the instance of the B arbitrator.... As already observed, s 15 of the Indian Arbitration Act, 1899 is identical to s 11(2) of the Arbitration C Ordinance, Cap 15 of our laws. It is trite principle that in common law jurisdictions statutes which are in pari materia are interpreted similarly.  

There is a wealth of authority in India regarding the interpretation and application of s 15 of the Indian Arbitration Act, 1899, the equivalent of s 11(2) of the Arbitration Ordinance in Tanzania. Dealing with a somewhat similar situation in the case of D Volkart Brothers v Achrajram & others (1) the Supreme Court of India held inter alia: `... the award was executable from the date on which it was received in this Court, namely, 21st June, 1923, and that the subsequent order in 1927 to file it was redundant and at best merely amounted to recording a fact that it E had been caused to be filed at the instance of the arbitrators'. The principle that from the date of filing, the award is capable of being enforced as though it were a F decree was also underscored in another Indian case of Ahmed Musaji Saleji (3). The Indian legislation being in pari materia with our Arbitration Ordinance Cap 15, we see no reason for giving s 11(2) a different construction. So far in our country the practice in matters of arbitration awards is that the court is moved by an application for an order for filing which is then followed by G proceedings. On the basis of the Indian decisions we are persuaded to take the view that as a matter of law it is not necessary to conduct proceedings before an order for filing is made. In our view, the receipt of the award by the Court Registry constitutes the filing of the award. Thereafter, the court is required to notify the parties who may wish to challenge or to enforce the award in H terms of the law. For the foregoing reasons, the appeal is dismissed with costs.

1997 TLR p173