2009-05-14 08:11:00 Judge refuses to dismiss Tanesco plea on Dowans By Bernard James THE CITIZEN The High Court yesterday refused to dismiss an application in which the state-run power company is seeking to block the sale of Dowans Tanzania Limited power generating plant. Justice Robert Makaramba of the commercial division of the High Court said Dowans Tanzania Limited has failed to move the court to dismiss the application filed in December last year. The decision means the application will have to be heard inter-parties and decided on its own merits. Tanesco has already secured interim orders restraining Dowans from selling its plant located at Tanesco premises near the power utility firm headquarters until the matter is determined. Tanesco contested that the application was a counter-action to breach of contract arbitration proceedings Dowans filed against Tanesco at the International Chamber of Commerce (ICC) last November. In its application, Tanesco is seeking to block the sale of a 120Mw 50HZ Thermal Power Plant, General Electric 4x20Mw Dual Fuel and 1x40Mw natural gas plant owned by Dowans. Dowans inherited the Richmond Development Company�s controversial Sh152 million-a-day emergence power supply contract. On filing the application Tanesco asked the court, in the alternative, to order Dowans to deposit in court ten per cent of $109,857,686 dollars as security for any award of costs that may be entered against them on conclusion of arbitration proceedings. But last month Dowans filed a preliminary objection to the application. It argued that the application was incompetent for being filed under wrong provisions of the law. The application was filed under section 95 of the civil procedure code and article 23 (2) of the ICC rules. Dowans argued that the provision did not empower the court to entertain and determine the application, praying for the court to dismiss it. However, Tanesco maintained that article 23 (2) of the ICC which was used to refer the dispute to ICC allows the parties to apply for interim or conservatory orders to any competent judicial authority. And Justice Makaramba, who is also Judge-in-charge of the division, observed that the court had jurisdiction to entertain the matter. He said it was inappropriate to raise the issue of jurisdiction at that stage of the application for the same court had granted the interim orders barring the sale of Dowans assets. "The court was convinced that it has jurisdiction and proceeded to grant the orders," justice Makaramba declared. According to him, the current Civil Procedure Code does not give specific provisions of the law to be applied by parties while they are involved in the matter pending at the ICC. "It is clear that ICC rules recognise the power of competent judicial authority to entertain the matter," he said. The Judge declared: "In the absence of any specific law for applying for interim or conservatory measures in the Civil Procedure Code, I find that this application was sufficiently filed to meet the ends of justice." He said the court could not hide itself under the thick forest of argument that it has no jurisdiction to entertain the matter.