the judiciary the high court of tanzania [commercial division]€¦ · · 2015-09-20the high...

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


5. Hon. Jacobs

Mwambegele

Judge High Court 0754281254 [email protected]

6. Hon. K.M.

Nyangarika

Judge Commercial

Division


7. Hon. A.E.

Bukuku

Judge Commercial

Division


8. Hon. Dr.

Gerald A.M.

Ndika


9. Hon. Iman

Aboud


10. Hon. Thomas

B. Mihayo

Retired Judge Judiciary 0754780078

11. Hon. Aishiel

Summari

Judge

Incharge

High Court

Mwanza

0754537764

12. Hon. Fauz

Twaib


13. Hon. S.A. M.

Wambura

Judge Labour Court 0754332554 [email protected]

14. Hon. Isaya District High Court 0754570219 [email protected]

mailto:[email protected]










Arufani Registrar Mwanza

15. Hon. Lyamuya,

A.M

District

Registrar

High Court

Mbeya


16. Hon. John R.

Kahyoza

CDR High Court

Dar es Salaam


17. Hon. Pamela

S. Mazengo

District

Registrar

Labour Court 0712809015 [email protected]

18. Hon. K.T.

Revocati

DRCC Commercial

Division


19. Hon.

Rujwahuka,

E.G.

DRCC Commercial

Division


20. Sifael Mnzava HRO Commercial

Division


21. Hamisi Msafiri Assistant to

C.J

Court of Appeal 0787164311 [email protected]

22. Moses Ndelwa Judges

Assistant

Commercial

Division


23. Aderkson

Njuwa

Judges

Assistant

Commercial

Division


24. Hildagalda

Joseph

Judges

Assistant

Commercial

Division


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]

[email protected]

30. Oliver Mkuja

31. Asha badi Commercial

Division

[email protected]

32. Mary Chambo Commercial

Division

[email protected]

33. G. Mtenga Commercial

Division

[email protected]

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


39. Nurdin

Mpelembe

Accountant Commercial

Division


40. Khadija Simba Member of

Commercial

Court Users

Committee

Commercial

Division

0713894810

41. Prof. B.

Putinwa

Dean UDSM, school

of law


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


47. Clement

Kilimuhana


Division

0652385078

48. Filbert

Ngonyani

R/A Commercial

Division

0754390845

49. Daniel Robi Auditor Commercial

Division


50. Martha F.

Cosmas

RMA Commercial

Division


51. Janeth J.

Buretha


Division


52. Josephine

Mtikila

CSA Commercial

Division


53. Judith J.

Mtaita

C/R Commercial

Division


54. Joyce Grison RMA Commercial

Division


55. Josephine R.

Bampikya

RMA Commercial

Division


56. Masha T/O Commercial

Division

0654288282

57. Joyce T. Duma PS Commercial

Division


58. G. Mchaki SO Commercial

Division













59. Justine Kilenza LA Commercial

Division


60. Tawan Salum LO Commercial

Division


61. Saida Mfaume RO Commercial

Division

0716098017

62. Harrieth G.

Njessa

LO Commercial

Division


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


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


78. Y.Gaudence Accountant Commercial

Division


79. Kanyachole,

S.H.

SRA Commercial

Division


80. Clement

Kilimuhana


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


84. Ilvin C.

Mugeta

SRM Judiciary 0713487413 [email protected]

85. Daniel Welwel Advocate Asyl &

Attorneys


86. Fatma A.

Karume

Advocate IMMMA 0784783300 [email protected]

87. Anneth Kireth Advocate Hallmark

Attorneys


88. Nuhu

Mkumbukwa

Advocate Nexlaw

Advocates


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


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







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

the judiciary the high court of tanzania [commercial division]€¦ · · 2015-09-20the high...

Documents