the judiciary the high court of tanzania [commercial division]€¦ · · 2015-09-20the high...
TRANSCRIPT
THE UNITED REPUBLIC OF TANZANIA
THE JUDICIARY
The High Court of Tanzania
[Commercial Division]
THE 5TH ROUND TABLE DISCUSSION
THEME: “Curbing Delays in Commercial Dispute Resolution; Arbitration as a
Mechanism to Speed up Delivery of Justice”
VENUE: Dar es Salaam International Conference Centre, 5th Floor-Dar es Salaam,
Tanzania.
Date: 20th July, 2012
Starting Time: 9:30 Am
Acronym
ADR Alternative Dispute Resolution
A.G The Attorney General
PTC Pre-Trial Conference
RCC Registrar Commercial Court
TLS Tanganyika Law Society
1.0 Introduction
This is a report on the 5th Round table discussion held at Dar es Salaam
International Conference Center (DICC) at Dar es Salaam on Saturday 20th day of
July, 2012. The main theme was “Curbing Delays in Commercial Dispute
Resolution; Arbitration as a Mechanism to Speed up Delivery of Justice”. The
discussion aimed at sharing ideas with stakeholders and Commercial Division
users on how arbitration can be utilized by the commercial court users to curb
delays in the administration of justice.
The discussions therefore were focused on the major causes of delays, and how
the same can be circumvented so as to fast track disposal of cases in the Court.
The general structure of this report includes the welcome note, the brief objective
and purpose of the discussions,, two presentations, plenary discussions on the
presentations and vote of thanks together with winding up remarks. All
participants had an opportunity to interact more closely during the tea break and
a lunch under the auspices of the Commercial Division.
2.0 Welcome Note
The Hon. Registrar (RCC) of the Commercial Division Mr. J. Kahyoza,
He took the floor and welcomed the Judge in-charge of the Commercial
Division Hon. Justice R.V. Makaramba, Justice A. Bukuku, other Judges of the
High Court, the Chairman of the sessions Dr. Kapinga, presenters and all
participants in the 4th Round table Discussion. He then apologized for starting
late but explained that it was due to having to wait for other participants who
were late up to that moment in time. He said that they were held up by traffic
jams on their way. He finally welcomed the Judge in charge to welcome the
honorable Chief Justice for the official opening of the round table.
2.1 Welcome remarks by the honorable Judge In-charge Charge
He started by saying that the Round Table discussion is a tradition of the
Commercial Division as a major way of getting feedback on the performance of
the Court, and meeting with stake holders to discuss issues related to dispute
resolution. He thanked the invited guests for accepting the invitation. He finally
welcomed the Chief Justice to officiate the event.
2.2 The Key note address by the Honorable the Chief Justice Mohamed
Chande Othman.
Having conveyed his greeting to the participants and his note of
appreciation for their presence, he went on to state that he was greatly honored
to welcome all of the invitees. He commended the Honorable Judge in charge of
the Commercial Division and his team for organizing once again the round table
discussion, adding that the theme was well chosen and quite opportune. For him,
case delays is a sign of inefficient in the system and further that excessive case
delays may also amount to denial of justice. He went on to say that it was the
delays that led to establishment of the Commercial Division so as to enhance
speed delivery of justice and to strengthen the business environment.
The honorable chief justice went on to inform the participants that per the doing
business report, Tanzania has dropped in ranking in the enforcement of contract
whereby in Singapore it takes only 152 days to finalize a case with only 21
procedural steps to determine the case.
He said that efforts to curb delays should be holistic and whole, and that the
court must be proactive in case management. He also called upon advocates to
offer their full and unreserved cooperation to the court in its endeavors to curb
delays. Among the roles of the courts to curb delays, said the Chief Justice was to
give a time table for the trial with flexibility since justice requires that cases
should be finalized within set time.
He made further comments regarding resort to ADR as an alternative to
expediting the cases and further called upon the members to stop blaming on the
problems encountered but instead to use performance indicators in evaluating
the court’s performance.
He made reference to the recommendation from the last round table of putting in
place the rules of procedure that could enable the court to control the case
management processes, specifically by putting to an end the nonstop hearing,
increase of pecuniary jurisdiction of Commercial Division and ensuring that the
rules could expedite the justice delivery process.
The Honorable Chief Justice went on to inform the discussants that the rules have
been drafted and already signed ready for use. He said that they substantially
eliminate unnecessary procedural steps, increasing Commercial Division
accountability, and as such, he expected the rules to be a snowball to the other
courts. He said that generally the rules were designed to improve business
environment.
He also observed that time is valuable aspect in business, and that since the use of
ADR has been successful in labour disputes, there was no reason as to why the
same should not be fully utilized in commercial disputes resolution.
To complement the process, said the Chief Justice, the judiciary is currently
reviewing powers of Registrars so that judicial officers such as in their capacity
could serve as mediators, and also that there are ongoing training of trainers
programs in that respect.
He finally as an advise said that, the court should stick to the purpose of
establishing the Commercial Division and strive to attain such goals. After these
comments the Honorable chief Justice declared the discussions open and invited
the discussants to participate and contribute fully.
3.0 Presentations & Discussions
The Chairperson; DR. SINARE
She firstly thanked the Chief Justice for officiating the event and said that
the advocates and the court agree on one thing that the time needed for disposal
of cases should be shortened, and that everybody should be involved including all
staff and advocates.
She went on to recount on the importance of arbitration as alternative to case
disposal promising the Chief Justice that the views will be given on the ways to
fast track disposal of cases and employment of ADR, and to share ideas on the
establishment of the small claims courts.
She then moved her thanks to the commercial Division staff for the preparations
and the members of TLS for their attendance calling upon them to educate other
advocates about the importance of commercial arbitration and their role to play
in disposal of cases.
After these preliminaries, the discussants went for a group photo with the guest
of Honor, the Honorable Chief Justice of Tanzania.
3.1 The 1st Presentation: By Beatus Malima
Chairperson; Hon. Dr. Ndika, J.
Hon. Dr. Ndika, J picked off by introducing the first presentation and
giving an autobiography of the presenter, Mr. Beatus Malima, and the discussant
Hon. Fauz Twaib, J., the President of East Africa Judges and Magistrates
Association.
Mr. Malima Presented as follows:
The central argument by Mr. Malima was on the causes of delays which
are the internal system of procedural laws; eg The Civil Procedure Code and the
evidence Act, in which parties may spend 152 days on the preliminary stages.
Mr. Malima pointed out some procedures which cause delays including; the
amendment of pleadings, the PTCs, closing submissions and lack of control in the
application of these rules. Mr. Malima encourages advocates to bring more
efforts in settling cases through mediation.
The rule allowing introduction of the document on the first day of hearing could
be adopted and be made part of the first PTC since it causes delays by
unnecessary adjournment of hearing of the case.
Mr. Malima stated further that, closing submissions is another cause of delays.
Closing submission may contain analysis of evidence even by more than 50 pages
therefore hinge huge burdens to judges. The Court should adopt the rule that
closing submissions be orally on the same day soon after closing the defendant’s
case.
Mr. Malima stated further that, commercial cases should be heard on continuous
basis, since long adjournment burdens the judges hence causing delays.
Mr. Malima stated further that, the sky on the cross examination should be
limited. Parties should ask only relevant question to an issue. The act of asking
any question during cross examination causes delays, therefore court should
control this.
Commercial Court should think on the regulating the admissibility of electronic
evidence, since currently most of business are electronically conducted.
Other delays are caused on the service of summons. There are few court process
servers who cannot manage to go around all parties within a short period of
time. Court should take control to determine who will serve the summons and
within which time.
An order for striking out the plaint for citing wrong provision of law cause
delays. Since the Plaintiff could still brought back the matter to court. Court
could make orders for an amendment with costs rather than striking out the
matter.
Execution processes also cause delays. Judges have given powers to control court
proceedings. Such powers could be used to control the abuse of processes during
execution.
Remarks by Hon. Dr. Twaib. J.,
The major purpose of introducing new draft of commercial rules is to expedite
the resolution of commercial disputes. The golden thread is the issue of curbing
delays. Dr. Fauz touched on the few rules, including; Rule 9 which allow parties
to file either a plaint or originating summons. Rule 13 on the assignment of cases
to a particular judge which is going to be within a day. Rule16 which allows
substituted service of summons to be made electronically. Rule 19 which reduce
an extension of time to file a Written Statement of Defence. Rule 23 which allow
the court to amend pleadings suo motu on typographical errors which cannot
prejudce parties to a suit. Rule 24(3) which allow the court to make orders or
strike out the defence or claim in case of non-appearance at the PTC. Speed
tracks are not applicable in the commercial disputes. Mediation to be settled
within 14 days and registrars can mediate commercial cases. Also a case can be
dismissed in absence of parties at mediation. Rule 45 requires continuation of
hearing commercial cases. A witness should file a witness statement and that a
witness will be called to Court if the opponent party wishes to cross examine
witness on the testimony provided for in the filled witness statement. Judgments
are supposed to be abiding with decree.
Dr. Fauz concluded that, precaution should be taken to judges in commercial
Court that the 60days and 30 days for judgment and rulings should not affect the
quality of decisions so that should not harm justice.
Discussants
-The problem is not the absence of new rules but how to use them. The Bench
and the Bar should take a proactive role on how to apply the rules.
-The Bench has been much trained on mediation compared to the Bar. So it is a
challenge for the advocates to be more trained on mediation.
-Lack of knowledge in the commercial field brought in by new trends/fields e.g
gas and oil field. So the bench and the Bar should also be trained on these areas
to ensure the administration justice.
-Our laws should be amended to allow the admissibility of electronic evidence
because practice is ahead of the law.
- Fast tracking of commercial cases should not bear any fruit unless there are
special divisions in the Court of Appeal for fast tracking Commercial Appeals.
Chairperson closes the first presentation session with vote of thanks.
RCC
Thanks the discussants and invited the participants for tea break.
3.2 The 2nd Presentation by Hon. Justice Mihayo, J.
After tea break, RCC welcomed the Hon. Bukuku chairperson for the last session.
Hon. Bukuku introduces the second session presenter, Hon. Thomas Mihayo,
Retired Judge
Hon. Miahayo.J., stated that the main idea is that justice is being delayed. But
arbitration is an alternative. However, there is lack of institutional regulation of
arbitration. Hon. Mihayo went ahead to elucidate the difference between
arbitration and litigation by comparing the advantages and disadvantages of each
of the two. Grounds of challenging awards resist registration of awards.
Domestication and ratification of the conventions on arbitration is still a problem.
Discussants
-Advocates should also be appointed as Arbitrators. Advocates should attend
arbitration course, then sits for examination to be appointed as arbitrator.
-There is need of having Modern Arbitration Law so as to have modern
arbitration process.
-There should be a rule to help for recourse of protecting the property- ie
preservative orders pending arbitration outside the country.
4.0 General Comments
SN RECOMENDATION RESPONSIBLE TIME FRAME REMARKS
1. Evidence Act should be
amended to allow
admission of electronic
evidence
A.G
2. Judge, Magistrates and
Advocates should be
trained on ADR
TLS and the
Judiciary
3. There should be two sets of
laws one for regulating
arbitration in Tanzania
and the other for
enforcement of foreign
arbitral awards
5.0 Vote of Thanks and Conclusion
The Judge In-charge Hon. Makaramba thanks the Hon. Chief Justice,
Judges of the High Court, Retired Justice Mihayo, Chairpersons, presenters,
discussants and all other participants for their coming. He promised to take into
consideration all comments, recommendation and opinion by the participants so
as to expedite disposition of commercial disputes.
6.0 Appendixes
6.1 The Tentative program
IN THE UNITED REPUBLIC OF TANZANIA
JUDICIARY
HIGH COURT OF TANZANIA
(Commercial Division)
ROUND TABLE DISCUSSION
THEME: “Curbing Delays in Commercial Dispute Resolution; Arbitration as
a Mechanism to Speed up Delivery of Justice”
VENUE: Dar es Salaam International Conference Centre, PPF Tower
5th Floor – Dar es Salaam Tanzania.
DATE: 20TH July, 2012
TENTATIVE/PROGRAMME
TIME EVENT RESPONSIBILITY
08:30 – 08:50 Registration All Participants.
08:50 – 08:55 Arrival of Guest of Honour, Hon.
Mohamed Chande Othman, Chief
Justice of the United Republic of
Tanzania
Hon. Judge in Charge and RCC.
08:55 – 09:00 Welcoming Address Hon. Judge in Charge
Commercial Court.
09:00 – 09:20 Opening Speech Guest of Honor
09:20 – 09:30 Group Photo Registrar- Commercial court
09:30 -09:50 1st Presentation:
Curbing Delays in Commercial
Dispute Resolution, By Mr.
Beatus Malima, Advocate
Hon. Dr. G. Ndika,J Chairperson
09:50 -10:10 T E A B R E A K
All Participants
TIME EVENT RESPONSIBILITY
10:10 -10:40 Discussant: Hon. Dr. F. Twaib, J
Hon. Dr. G. Ndika, J- Chairperson
Plenary Discuss for 1st
Presentation.
Hon. Dr. G. Ndika, J-Chairperson
10:40 -11:00 2nd Presentation:
Arbitration as a mechanism to
speed up Delivery of Justice, by
Hon. R.V. Makaramba, Judge in
Charge-High Court (T) Commercial
Division
Hon. A. Bukuku, J-Chairperson
11:00 -11:40 Discussant: Hon. T. Mihayo Judge
(rtd)
Hon. A. Bukuku,J-Chairperson
Plenary Discussion
Hon. A. Bukuku, J-Chairperson
11:40 -12:00 Recommendations and a Way
Forward
President Tanganyika Law Society
12:00 L U N C H & D E P A R T U R E
6.2 List of Participants
SN NAME OF
PARTICIPANTS
DESIGNATION ORGANIZATION MOBILE E-MAIL
1. Hon. Othman
Chande
Chief Justice Judiciary
2. Hon. Robert
Makaramba
Judge
Incharge
Commercial
Division
0787574568 [email protected]
3. Hon.R.E.S.
Mziray
Judge
Incharge
Land Division 0755318679
4. Hon. Aisha C.
Nyerere
Judge
Incharge
High Court
Arusha
0754275444 [email protected]
5. Hon. Jacobs
Mwambegele
Judge High Court 0754281254 [email protected]
6. Hon. K.M.
Nyangarika
Judge Commercial
Division
0754285293 [email protected]
7. Hon. A.E.
Bukuku
Judge Commercial
Division
0784666293 [email protected]
8. Hon. Dr.
Gerald A.M.
Ndika
Judge High Court 0784607968 [email protected]
9. Hon. Iman
Aboud
Judge High Court 0713310516 [email protected]
10. Hon. Thomas
B. Mihayo
Retired Judge Judiciary 0754780078
11. Hon. Aishiel
Summari
Judge
Incharge
High Court
Mwanza
0754537764
12. Hon. Fauz
Twaib
Judge High Court 0754004488 [email protected]
13. Hon. S.A. M.
Wambura
Judge Labour Court 0754332554 [email protected]
14. Hon. Isaya District High Court 0754570219 [email protected]
Arufani Registrar Mwanza
15. Hon. Lyamuya,
A.M
District
Registrar
High Court
Mbeya
0715624400 [email protected]
16. Hon. John R.
Kahyoza
CDR High Court
Dar es Salaam
0713499056 [email protected]
17. Hon. Pamela
S. Mazengo
District
Registrar
Labour Court 0712809015 [email protected]
18. Hon. K.T.
Revocati
DRCC Commercial
Division
0754633961 [email protected]
19. Hon.
Rujwahuka,
E.G.
DRCC Commercial
Division
0757615199 [email protected]
20. Sifael Mnzava HRO Commercial
Division
0754595743 [email protected]
21. Hamisi Msafiri Assistant to
C.J
Court of Appeal 0787164311 [email protected]
22. Moses Ndelwa Judges
Assistant
Commercial
Division
0719369094 [email protected]
23. Aderkson
Njuwa
Judges
Assistant
Commercial
Division
0755373983 [email protected]
24. Hildagalda
Joseph
Judges
Assistant
Commercial
Division
0715593921 [email protected]
25. Rhoda
M.Ngimilanga
DRM Incharge Dodoma
District Court
0713765810
26. Beatus
Malima
Advocate LAA 0784313139
27. Mr. M.
Khalfan
Users
Commercial
Committee
Commercial
Division
0773223673
28. Madeline
Kimei
Advocate Stanbic Bank 0766074704 [email protected]
29. Maria Matui POMS TLS 0655773107 [email protected]
30. Oliver Mkuja
31. Asha badi Commercial
Division
32. Mary Chambo Commercial
Division
33. G. Mtenga Commercial
Division
34. Ally Dilunga Commercial
Division
35. Salehe
Mselem
Driver Commercial
Division
36. Sania
Ramadhani
Secretary Commercial
Division
0652068686
37. Redempta
Diku
Secretary Commercial
Division
075499913
38. Elisaria Motta Accountant Commercial
Division
0713255886 [email protected]
39. Nurdin
Mpelembe
Accountant Commercial
Division
0765444666 [email protected]
40. Khadija Simba Member of
Commercial
Court Users
Committee
Commercial
Division
0713894810
41. Prof. B.
Putinwa
Dean UDSM, school
of law
0754261124 [email protected]
42. Jessie S.
Mng’uto
Advocate 0713226177 [email protected]
43. Nelly G.
Mwasongwe
Advocate Law Associates 0754262692 [email protected]
44. Esther C. Seni A/A Commercial
Division
0714306615
45. Dr. Fred Ringo Advocate Adept 0754666994
46. Adeodatha,
A.N.
R/MA Commercial
Division
0755553090 [email protected]
47. Clement
Kilimuhana
Accountant Commercial
Division
0652385078
48. Filbert
Ngonyani
R/A Commercial
Division
0754390845
49. Daniel Robi Auditor Commercial
Division
0757948940 [email protected]
50. Martha F.
Cosmas
RMA Commercial
Division
0754312248 [email protected]
51. Janeth J.
Buretha
Accountant Commercial
Division
0754307648 [email protected]
52. Josephine
Mtikila
CSA Commercial
Division
0715061727 [email protected]
53. Judith J.
Mtaita
C/R Commercial
Division
0754262309 [email protected]
54. Joyce Grison RMA Commercial
Division
0655891103 [email protected]
55. Josephine R.
Bampikya
RMA Commercial
Division
0755302063 [email protected]
56. Masha T/O Commercial
Division
0654288282
57. Joyce T. Duma PS Commercial
Division
0754466240 [email protected]
58. G. Mchaki SO Commercial
Division
0755787800 [email protected]
59. Justine Kilenza LA Commercial
Division
0655017267 [email protected]
60. Tawan Salum LO Commercial
Division
0714105294 [email protected]
61. Saida Mfaume RO Commercial
Division
0716098017
62. Harrieth G.
Njessa
LO Commercial
Division
0719111200 [email protected]
63. Lipha S.
Tamambele
Driver Commercial
Division
0717338181
64. Edward Simon CSA Commercial
Division
0713207057
65. Angelina
Agalla
P/S Commercial
Division
0757753950
66. Maurice
Richard
R/O Commercial
Division
0715506168
67. Emiliana E.
Kagaruki
POA Commercial
Division
0715272468
68. Folensiana
Kanuti
OA Commercial
Division
0719158550
69. Juster O.
Minja
PS Commercial
Division
0654345120 [email protected]
70. Wilson Dede Security Commercial
Division
0712779507
71. Athumani
Hassani
SOA Commercial
Division
0754289306
72. Samwel
Mshote
ACO Commercial
Division
0713757098
73. Erasmus
Komba
Security Commercial
Division
0655000647
74. Beatrice K. Court Commercial 0754694590
Njau Recorder Division
75. Juma Kingu SOA Commercial
Division
0783270116
76. Kalewa, A. Accountant Commercial
Division
0717597224
77. M. Wililo Chief Auditor Commercial
Division
0713473904 [email protected]
78. Y.Gaudence Accountant Commercial
Division
0713551101 [email protected]
79. Kanyachole,
S.H.
SRA Commercial
Division
0715390843 [email protected]
80. Clement
Kilimuhana
Accountant Commercial
Division
81. Daniel R.
Nkena
Advocate TLS 0784388001 [email protected]
82. John Seke Advocate TLS 0713505406 [email protected]
83. Julius Kalolo
Bundala
Advocate Ismail & Co.
Advocates
0754378697 [email protected]
84. Ilvin C.
Mugeta
SRM Judiciary 0713487413 [email protected]
85. Daniel Welwel Advocate Asyl &
Attorneys
0786855331 [email protected]
86. Fatma A.
Karume
Advocate IMMMA 0784783300 [email protected]
87. Anneth Kireth Advocate Hallmark
Attorneys
0784695702 [email protected]
88. Nuhu
Mkumbukwa
Advocate Nexlaw
Advocates
0754288744 [email protected]
89. Josephat
Kweka
SV. Economist World Bank 0784383328 [email protected]
90. Evehawa
Sinare
Partner Rex Rex Attorneys 0786585891
91. Winfrida, K DOPP AGC 0786274193
92. Francis Shilla Advocate TLS 0754312215
93. Honestus
Kulaya
Advocate 0788471904 [email protected]
94. Dickson
Mtogesewa
Advocate Dickson
Consulting
Advocates
0754654736 [email protected]
95. Juma
Athumani
Driver Commercial
Division
0713757521
96. Mosi A.
Nyeura
Driver Commercial
Division
0789886642
97. Edgar H.
Mbore
Driver 0755957004
98. Selemani
Dimoso
Driver 0654415446
99. Hamisi Ally Driver 0716634763
100. Ewald A.
Kilawe
Driver Commercial
Division
0713518735
101. Mniko Lucas Driver Law school of
Tanzania
0716808090
102. Hery G.
Malundo
Driver 0658231338
103. Benedict Banzi Driver 0712199296
104. Joachim
Nyangwa
Driver 0713378090
105. Moshi
Gubikila
Driver 0755001132
106. Hatibu Salehe Driver
107. Abinus Samba Driver
108. Adolf M.
Undili
0712148212
109. Bernad Frank Zanzibar Media 0685411866
110. Joseph
Michael
Jamhuri
Newspaper
0652132010
111. Julius Mloka Dira ya
Mtanzania
0756973464
112. Kelvin Sanga TV Sibuka 0716786200
113. Arnold
Rweyemam
TV Sibuka 0715772890
114. Charles Lucas Majira 0718138527
115. Penina
Malundo
Sibuka FM 0714038256
116. Emmanuel
Kiwelu
Camera Man Mliman Tv 0655025011
117. George Lucas The Express 0715157155
118. Zainab Mtima Reporter Mliman Tv 0719535275
119. Cecilia
Mwaikambo
Reporter Mliman Radio 0656153020
120. Nicolas Mushi Reporter Radio 0716120226
121. Vereranda
Sumila
Reporter The Citizen 0784487074 [email protected]
122. Mercy John Reporter Business weeks 0717593217 [email protected]
123. Amina Ally Reporter INFOR FM 0716636696 [email protected]
124. Seleman
Ahamadi
Reporter The Express 0714099486 [email protected]
125. Ayoub Mosha Reporter Praise Power
Radio
0719532444 [email protected]
126. Geofrey
Mwakibete
Reporter The African 0716020203
127. Esther Frank Reporter Jamhuri 0715613480
128. Michael, H. Reporter Jamhuri 0713241952
129. Meshaki
Kitunzi
Reporter Mtanzania 0756079161
130. Wence Lugiko Reporter The Express 0713326569