IN
THE COURT OF APPEAL OF TANZANIA
AT
DAR ES SALAAM
(CORAM:
NSEKELA, J. A., RUTAKANGWA, J. A., And
KIMARO, J. A.)
CIVIL
REVISION NO. 1 OF 2007
HUMPHREY CONSTRUCTION LTD …………..……… CLAIMANT
VERSUS
PAN AFRICAN POSTAL UNION (PAPU) …….…. RESPONDENT
(Revision
from the Order of the High Court of Tanzania
(Commercial
Division) at Dar es Salaam
(Massati,
J.)
dated
the 1st day of August, 2007
in
Miscellaneous
Comm. Case No. 8 of 2007
---------------
JUDGMENT
OF THE COURT
29 February & 16
May 2008
NSEKELA, J. A.
The
Respondent herein, Pan African Postal Union, (PAPU) was the respondent in Misc.
Commercial Case No. 8 of 2007 filed in the High Court, Commercial Division. The
claimant was Humphrey Construction Ltd, who had filed an arbitration award
under section 10 of the Second Schedule to the Civil Procedure Code and section
11(2) of the Arbitration Act, Cap. 15 and Rule 4 of the Arbitration Rules. On
the 27.3.2007, Massati, J. (as he then was) made the following Order –
“Judgment
is hereby pronounced according to the award and decree to follow accordingly in
terms of S. 16(2) of the Second Schedule of the Civil Procedure Code 1966.”
Subsequently,
the claimant filed an application for execution whereupon the court on the
6.6.2007 made the following Order:-
“Order:
(i)
Issue prohibitory order in
respect of
landed property
(ii)
Issue warrant of attachment
for the
motor vehicles.”
On the 14.6.2007, the court issued a warrant of
attachment of movable property under Order XXI Rule 21 of the Civil Procedure
Code. The following motor-vehicles were listed in that Order – Reg. No. T 244
CDI (Mercedes Benz) and Reg. No. T 244 CD 20 (Toyota
It
is against this background that the Hon. Attorney – General wrote a letter to
the Registrar of this Court Ref. No. J/C.60/4/6003/3 dated the 20.9.2007 which
reads in part as follows-
“The
Hon. Attorney General is in receipt of a letter dated 19th
September, 2007 from the Ministry of Foreign Affairs and International
Cooperation wherein it is stated that the High Court of Tanzania (Commercial
Division) Dar es Salaam Registry has issued Decree and Attachment Order against
Pan African Postal Union (PAPU) Headquarters building in Arusha.
Pan African Postal Union is an
International Organisation specified in the third schedule of the Diplomatic
and Consular Immunities and Privileges Act (Cap. 356 RE 2002) hence enjoys immunities.
Those privileges and immunities were also conferred on PAPU in terms of Article
III of the Headquarters Agreement dated 7th October, 1984 between
PAPU and the Government (see also GN No. 183 published on 28.9.84).
It
was unfortunate that the Hon Attorney General or his representative was not invited
to appear as Amicus Curie in those proceedings. In the circumstances and as a
matter of urgency, the Hon. Attorney General humbly requests the Court of
Appeal of Tanzania to invoke powers vested in it under the provisions of
section 4(3) of the Appellate Jurisdiction Act, 1979 and call for and examine
the record of the proceedings, judgment, Order and Decree of the High Court of
Tanzania Commercial Division (Massati, J.) in Misc. Commercial Case No. 8 of
2007 with a view to satisfy itself as to correctness legality and propriety of
the decision made thereon.”
Ms.
Sehel, learned Senior State Attorney, was invited to address the Court on the
issue raised in the letter from the Hon. Attorney General. The learned Senior
State Attorney submitted that PAPU is an international organization under the
Diplomatic and Consular Immunities and Privileges Act, Cap. 356 RE 2002 (the
Act) to whom it is accorded the immunities and privileges set out in Part I of
the Fourth Schedule to the Act. Consequently the property of PAPU is exempt
from attachment. She added that PAPU was granted immunity from suit and legal
process by virtue of Government Notice No. 183 published on the 28.9.1984 and
therefore the proceedings to enforce the arbitration award in the High Court
were illegal. The learned Senior State Attorney invoked also Article 45(4) of
the Vienna Convention on Consular Relations and submitted that it was part of
the law of the land. As such there was need for an express waiver from PAPU
that its properties be taken in execution. She vigorously contented that PAPU
had not expressly waived its immunity from attachment of its properties.
The
main contention by Dr. Ringo, learned advocate for the claimant, was to the
effect that PAPU had entered into a domestic construction agreement with the
claimant under which there was an arbitration clause. This amounted to an
implied waiver of immunity. He added that in terms of Article III(i) of the
Headquarters Agreement, PAPU had expressly waived its immunity, citing the case
of Birch Shipping Corp v Embassy of the
United Republic of Tanzania, 1980 507 F. Supp 311.
Section
4(3) of the Appellant Jurisdiction Act Cap. 141 RE 2002 provides as follows-
“(3)
Without prejudice to subsection (2), the Court shall have the power, authority
and jurisdiction to call for and examine the record of any proceedings before
the High Court for the purpose of satisfying itself as to the correctness,
legality or propriety of any findings, order or any other decision made thereon
and as to the regularity of any proceedings of the High Court”.
It
is evident from this sub-section that the power granted under this provision
applies to “any proceedings before the
High Court.” (see: Criminal Appeal No. 61 of 1999, Augustino Lyatonga Mrema v Republic (unreported). The proceedings
before Massati, J. (as he then was) fall within the ambit of Section 4(3)
above. This is not the end of matter. Before exercising its revisional
jurisdiction, the Court has to satisfy itself that the matter before it falls
within one of the circumstances enumerated in the case of Halais Pro-Chemie v Wella A. G (1996 TLR 269). In this case the
Court set forth circumstances which must be present before the Court can
exercise its revisional jurisdiction under section 4(3) above. These are-
“1.
The Court may, on its own motion, and at any time, invoke its revisional
jurisdiction in respect of proceedings in the High Court;
2.
Except under exceptional circumstances a party to proceedings in the High Court
cannot invoke revisional jurisdiction of the High Court as an alternative to
the appellate jurisdiction of the Court;
3.
A party to proceedings in the High Court may invoke the revisional jurisdiction
of the Court in matters which are not appealable with or without leave;
4.
A party to proceedings in the High Court may invoke the revisional jurisdiction
of the Court where the appellate process has been blocked”.
We
are of the settled view that these revisional proceedings fall under the first
category. The Court suo motu has
acted on the letter from the Hon. Attorney General reproduced above in cause
listing this application to be heard and determined by the Court.
The
central issue before us is whether or not the property of PAPU is immune from
attachment to satisfy an award of the Arbitrator. Our starting point is section
13(1) of the Diplomatic and Consular Immunities and Privileges Act, Cap 356 RE
2002 (the Act). It is in the following terms-
“13(I)
The Minister may, by Order published in the Gazette –
(a)
provide that any organization specified in the third schedule (hereinafter
referred to as the organization) shall, to such extent as may be so specified
in the Order, have the immunities and privileges set out in Part I of the Fourth
Schedule and shall also have the legal capacities of a body corporate.”
PAPU
is an organization specified in the Third Schedule (item no. 27). It is
therefore entitled to the immunities and privileges set out in Part I of the
Fourth Schedule to the Act. These immunities and privileges include “immunity from suit and legal process.” PAPU under the Act has been granted immunity
from suit and legal process. “Legal
Process” has not been defined in the Act but in our view, it includes all
proceedings in a legal action before a Court. The proceedings before Massati,
J. (as he then was) were aimed at the enforcement of an arbitration award.
Under the Act, such legal process, that is, attachment/ execution proceedings,
are not permitted. PAPU enjoys immunity from such attachment/ execution
proceedings.
Dr.
Ringo, learned advocate for the claimant, forcefully argued that PAPU had
impliedly waived its immunity by entering into an agreement with the claimant
which included an arbitration clause. He added that PAPU had also submitted to
the jurisdiction of the High Court. In support of his submissions, he referred
to the case of Birch Shipping Corporation v Embassy of the United Republic
of Tanzania
With
respect, we have carefully examined the proceedings before Massati, J. (as he
then was) from the 19.3.2007 onwards and have found no shred of evidence that
PAPU had entered an un-conditional appearance submitting to the jurisdiction of
the Court in those attachment/ execution proceedings. The clearest expression
of consent by PAPU to attachment and execution of its properties would be its
appearance and contest on the merits in Court proceedings without raising a
defence of immunity. This did not happen and therefore PAPU cannot be said to
have waived its immunity. In an American case, Dexter & Carpenter, Inc. v Kunglig Jarnvag sstyrelsen 43 F 2nd 705, a valid judgment was
obtained against the Kingdom of Sweden, acting through the unincorporated
Swedish State Railways, which was held to have waived its immunity. Execution
was issued on the judgment and an order of attachment was levied against the
property of the Kingdom
of Sweden
“The
question presented is whether execution may, issue against this sovereign
powers property because the Court acquired jurisdiction by expressed or implied
consent ……. Consent to be sued does not give consent to a seizure or attachment
of property of a sovereign government. The clear weight of authority in this
country, as well as that of England
With
respect, these erudite observations were made in a different set of facts, but
the reasoning is persuasive to the matter at hand. Admittedly, PAPU is not a
sovereign state raising the defence of sovereign immunity. However, as stated
before, PAPU is an international organization in terms of Section 13(1) of the
Diplomatic and Consular Immunities and Privileges Act, under which it has been
granted “immunity from suit and legal
process”. In addition PAPU was
vested with “the legal capacities of a
body corporate”. To this end, the Government of the United Republic of
Tanzania entered into a “Headquarters
Agreement” with PAPU on the 7.10.1984. For our purposes, Articles II(I) and
III(I) of this Agreement are particularly relevant. They provide as follows-
“ARTICLE
II: LEGAL STATUS OF THE UNION
1. The
Government recognize the legal status of the Union
and its capacity to –
(a) contract
(b) acquire
and dispose of moveable and immovable
property and
(c) institute legal proceedings.
ARTICLE
III: PROPERTY, FUNDS AND ASSETS
1. The
Union together with its property and assets wherever located and by whomsoever
held, shall enjoy immunity from every form of legal process except in so far as
in any particular case it shall have expressly waived its immunity. It is
however, understood that no waiver of immunity shall extend to any measure of
execution”. (emphasis added)
It
is crystal clear that in terms of Section 13(1) of the Act, read together with
Articles II(1) and III (1) of the Headquarters Agreement, the property of PAPU
is immune from attachment or execution. PAPU did not and in any case could not
waive its immunity as contended by Dr. Ringo, learned advocate.
In
the result, and for the reasons set out above, we hold that this is a proper
case for the exercise of the Court’s revisional powers under section 4(3) of
the Appellate Jurisdiction Act. We accordingly quash and set aside the
proceedings and Orders made by the High Court, Commercial Division, Misc,
Commercial Case No. 8 of 2007.
We
make no order as for costs.
DATED
at DAR ES SALAAM this 12th day of May, 2008.
H. R. NSEKELA
JUSTICE
OF APPEAL
E. M. K. RUTAKANGWA
JUSTICE
OF APPEAL
N. P. KIMARO
JUSTICE
OF APPEAL
I certify that this is a true copy of
the original.
( F.L.K. WAMBALI )
SENIOR
DEPUTY REGISTRAR
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, Civil Rev. no 1 of 2007){kind=link}
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