THE Court of Appeal has allowed the Attorney General (AG) to challenge the decision of the High Court over registration of an award, requiring the Public Service Social Security Fund (PSSSF) to pay over 2.46bn/- to Electrics International Company Limited.
Judge Paul Kihwelo ruled in favour of the AG after granting an application for extension of time to file another application for revision in view of the fact that there is an alleged illegality on the decision reached by the High Court’s Commercial Division at Dar es Salaam surrounding the matter.
“I find it appropriate under the circumstances to allow the application on the basis of this point so that the issue may be considered. In the result, the application is hereby granted. The application for revision to be filed within 21 days from the date of this ruling,” he said in his decision dated February 13, 2023.
During hearing of the application, Principal State Attorney David Kakwaya, who was assisted by State Attorney Galus Lupogo, requested the court to grant the extension of time, because the High Court committed an illegality for registering the award without giving PSSF an opportunity to be heard.
He referred to various court authorities, which discussed at considerable length that where a point at issue is the illegality or otherwise of the decision being challenged, that is a point of law of sufficient importance to constitute sufficient reason for extension of time.
On the other hand, Advocate Samson Mbamba, for the Electrics International Company Limited forcefully sought for dismissal of the application on account that it was not enough for the AG to allege illegality as the basis for quest for extension of time without examining its sufficiency.
He paid homage to some earlier decided cases and stressed that there was a clear distinction between illegality and an error of law which related to the change of name from Parastatal Pension Fund (PPF) to Public Service Social Security Fund (PSSSF).
It was, therefore, his position that the AG had not demonstrate sufficiently the point of illegalities to warrant extension of time and insistently prayed for dismissal of the application with costs.
Having painstakingly examined the record and considered the arguments by the parties, Judge Kihwelo pointed out that the gist of the complaint hinged on the illegality of registration of the Arbitral Award as court decree without affording the PSSF the right to show cause as to why it should not be registered.
According to him, he was aware that where the point at issue is one alleging illegality of the challenged decision, the Court has a duty, even if it means extending time for purpose, to ascertain the point and, if the alleged illegality be established, take appropriate measures to put the matter and record straight.
“Without attempting to dig deep into the substance of the claim of illegality of the High Court’s decision, it is, in my view, that this contentious matter is a worthy legal point for consideration by the Court,” the judge ruled.
The Attorney General is the principal legal adviser to the Government with mandate to protect and safeguard public interest, while the PSSF is the public institution established under the laws of Tanzania with the main responsibility of administration and management of pension funds.
Law establishing the PSSF was repealed and replaced by the Public Service Social Security Fund Act, No. 2 of 2018, where the duties and functions of the defunct fund were transferred to the current fund.
On November 6, 2008, the Electrics International Company Limited and Public Service Social Security Fund entered into two construction contracts for the sum of 2,966,085,774/30 and 3,178,600,410/-, respectively.
In the course of implementation of the two contracts, a dispute ensued which could not be resolved amicably. As a result, an arbitrator was appointed who delivered an award in favour of Electrics International Company Limited to the tune of 2,466, 925,071/-.
Subsequently, the Electrics International Company Limited filed an arbitral award at the High Court of Tanzania (Commercial Division), requesting the same to be enforced as a decree of the court. Shortly thereafter, the Public Service Social Security Fund filed a petition seeking to set aside such Award.
Unfortunately, the same was struck out with costs on account that the Arbitral Award attached to the petition was not certified. Thereafter, the Presiding Judge proceeded to register the award as a decree of the court without affording the right to be heard to the Public Service Social Security Fund.