The High Court yesterday rejected Tanesco’s petition seeking permission
to appeal against an order to pay $65.8 million (105.3bn/-) to Dowans
Tanzania Limited.
Justice Fauz Twaib said Tanesco did not use the right law in applying
for permission to challenge the original order.Tanesco got a lifeline, however,
when the judge ruled that it was free to use other sections of the law to
challenge the payment order.
The application that was struck out springs from a judgment delivered
in September last year by the High Court, which dismissed Tanesco’s first
effort to get out of paying the $65.8million.
The International Chamber of Commerce (ICC) Arbitral Tribunal of November
2010 ordered Tanesco to pay Dowans Holdings SA (Costa Rica) and Dowans Tanzania
Limited $65.8million for breach of a contract for emergency power generation.
The judge further ordered that the ICC’s award be formally registered
and be a decree of the court. Tanesco responded in October last year by filing
an application to go on to the court of appeal in its appeal.
But, yesterday, Judge Twaib said:
“The application is superfluous and I need not to consider it. The
remedy is to strike it out.”
According to the judge, Tanesco did not need permission to appeal
against the decision. Yesterday’s decision must have come as a great relief for
Tanesco, which has vigorously attempted to block the order for many months now.
Tanesco’s lawyer, Dr Alex Nguluma, said they were happy with the
decision as it indirectly gave them what they were seeking. The firm will soon
be filing the case in the Court of Appeal.
At the hearing of the application, Dowans’ lawyer Kennedy Fungamtama
asked the court to dismiss the application, arguing it could not be maintained
since the judgment against which the appeal was being sought was not open to
appeal, with or without leave of the court.
According to Mr Fungamtama, Tanesco would be entitled to appeal if it
could at least claim that the decree was in excess of the award or was not in
accordance with the award.
He further argued that Tanesco only intended to seek a further
opportunity to challenge the ICC award and to permit the appeal would be
tantamount to creating a right of appeal by implication.
Justice Twaib nevertheless agreed with Tanesco that some sections of
the law could be applied to appeal against the decision. In October last year,
High Court judge Emilian Mushi dismissed a petition by Tanesco that sought to block
the payments. The firm wanted an order that the case be remitted to ICC for
reconsideration on the grounds that it lacked merit.
This was followed a month later by the dismissal of a similar petition
by five human rights organisations that asked the court not only to reject
registering the award but also remit it to the ICC for reconsideration.
The five organisations, led by the Legal and Human Rights Centre,
argued that the award was improperly achieved and was also contrary to public
policy.
Source: The Citizen,www.thecitizen.co.tz, reported by Bernard James
0 comments :
Post a Comment