Question 1
You Matata Maridadi has file case in resident magistrate court, claim interlia, for specific perfomance because Mtama Muti has failed to complete the bungalow of Matata Maridadi. Your Client Mama Muti has given you a copy of the plaint anfd the oinme annexes is a copy of contract wherein you found clause 12 which is couched in the following language.
"The parties shall strive to settle their disputes amicably out of court. In the event that they failed to reach the settlements, they will refer the same to an arbitrator under arbitration Act [Cap 15 R.E 2002]
Your client has insisted you that you file WSD within 21 days as indicated in the summons.
Required:
- With the aid of the relevant laws discuss the measures you will take on behalf of your client.
- If you were the resident Magistrate assigned this case how will you handle this matter if you were informed about clause 12 of the contract?
Discuss the roles and functions of an arbitrator.
- Student at the Law school of Tanzania made the following statement. The concept… justice delayed is justice denied…is addressed positively by ADR…hence the amendment of the First schedule to the civil procedure code Act 1996 [Cap 33 R.E 2002] by the civil procedure code (Amendment of the schedule) Rules (1994) published in the Tanzania Government Gazzette under GN No. 422 of 1994, which came into operation on 1st
Required:
Show how the law has allowed ADR in civil litigation.
Question One
From the scenario given, a case between Matata Maridadi V Mtama Muti I would like to advise Mr Matata Maridadi the following.
As the case with universal arbitration law and practice,, in Tanzania it I mandatory to refer a dispute to arbitration where there is arbitration clause in a contract. This rule was stressed by the court of appeal of Tanzania by the Tanzania Motor vehicle services ltd and others v Mehar singh T/A Thaker Singh. In this case the first appellant entered into a contract with the respondent under which the first appellant was to build a house on plot No. 6, Central business Park, in the Dodoma Municipality. The contract contained arbitration clause whereby the parties agreed to refer any dispute arising between them to arbitration and final decision to arbitrator chosen according to agreed procedures. A dispute having arise between the parties, the respondent instituted in the high court Civil Case No. 20 of 2002 seeking over to recover from the appellant and outstanding some amount of money under the contract.
The appellant, instead of filling a written statement of defense, applied by way of petition for a stay of proceeding in terms of section 6 of arbitration Act[1] and rule 18 of the second schedule of the civil procedure code, The learned judge dismissed the petition, hence the appellant appealed to the court of appeal of Tanzania. . In the course of hearing of this appeal, the respondent filed a preliminary objection challenging the competence of the appeal in terms of section 2 (5) (d) of the appellant jurisdiction Act No.25 R.E 2002, on the ground that decision in question was interlocutory, that is, it did not finally determine Civil Case no 25. Of 2002 and therefore it was not applicable. In fact , Act No. 25 of 2002, bars appeals against preliminary decisions or order, unless such decision or order has the effect of finally determining the suit.
Resisting this preliminary objection, the appellant counsel argued that the petition for stay of proceeding under the arbitration Act was suit in its own right, because the appellant was asserting a right arising out of the arbitration agreement to which both parties had agreed. For that matter, the parties had agreed to refer the disputes arising out of the contract to arbitration as prescribed in arbitration clause. Therefore it was appellant contention that the decision of the learned judge implying that the parties did nit need go to arbitration was not intercullatory one. It finally determined the right of the parties by circumventing the recourse to arbitration.
The sole issue before the court of appeal was, the issue the effect of the decision of the learned judge by refusing to way of to stay the proceeding in civil case No. 20 of 2002 pending a reference to arbitration. Interlia the court of appeal quashed this preliminary objection, agreeing with appellant that the petition for civil case No. 20 of 2002 pending a reference to arbitration was a suit within the meaning of section 5(2)(d) of the Appellant jurisdiction Act. Therefore the court of appeal authoritatively held that
"In the p-resent case, the decision of the learned judge refusing to stay in proceedings in civil case No. 20 oif 2002, pending a reference to arbitration finally determined the petition by barring the parties from going on to arbitration. The decision closed the door to arbitration thus rendering provision in contract for arbitration meaningless. They meant to serve a purpose."
The implication of this decision is that where disputes arises in relation tot execution of the contract which has an arbitration agreement the dispute must be referred to arbitration.
This requirement was given due weight in the case Ashak Kabani and onethrs V Ayis Makariani & others where the High court held that a party to proceeding before the court wants toi have a matter referred to arbitration must do at the earliest stages possible and at any rate, before the filling of the written statement of Defence. The court held that, as it has been held in several cases, once a part files the written statement of defence then that party already discloses its defence hence, entering into a contract with the adverse party and by so doing, invite the court to adjudicate.
Thus to that analysis on the implication
- As a resident magistrate on this case, I will do like to decide the matter by ordering the parties to refer the matter to arbitration since the clause with 12 of the contract direct the dispute to be referred to the arbitrator once arouse. This decision will be supported by the provision of section 6 of the Arbitration Act Cap 15 R.E 2002 Which state that:
- " Where party to submission to which this party apply or a person claiming under him, commencing a legal proceeding against any other party to a submission or any person claiming under him respect of any matter agreed to be referred, a party to a legal proceeding may at any time after appearance and before filing a written statement or taking further steps tin proceeding apply to the court to stay proceeding, and the court if satisfied that there is no sufficient reasons why the matter should not be referred in accordance with the submission and that the applicant was, at the time when the proceeding were commenced and still remain ready and willing to al all things necessary for the proper conduct of the arbitration may make order for staying in proceeding.
Question 3
Arbitration can be defined as a mechanism for resolution of civil disputes which take place, usually in private, pursuant, to an agreement between the parties to the disputes, under which the parties agree to be bound by the decision to be given by the arbitrator according to law, after fare hearing, such decision being enforceable by law. Under common law, there is an order version of the definition of arbitration that was made in 1850's by Ramilly. M.R in Collins V. Collins[2] to the effect that "arbitration is reference to the decision of one or more persons either with or without an umpire, of some matter or matters in difference between the parties. However, this definition could apply to any other form of ADR as it does not clearly state the role of the arbitration in the disputes resolution. Also arbitration is the impartial or neutral which the part to be neutral in order to reach the decision of the contract a third party make the decision is not a judge court but is the person make decision of the dispute between the parties example in the case of DOWNS VS. TANESCO, this was the issue of (ICC) was an arbitration for solving the conflict in arbitration way and the appeal was allowed.
Civil litigation is the process in which civil matters are resolved in a court of law. Generally includes all the disputes that are formally submitted to a court, about any subjects in which one party is claimed to have committed a wrong, but not a crime. In practice and in ordinary conversation, lawyers and others concerned with civil litigation tend to treat many specialized subjects as outside this definition. Civil matters includes issues relating individuals to each other, such as a marriage, a contracts, torts, and any other matters that do not involves the public interest.
Alternative dispute resolution refers to ways of settling disputes outside of formal trials, especially through mediation, arbitration, conciliation, negotiation and many other forms of alternative dispute resolution. The law has allowed the Alternative Dispute Settlement to be applied in civil litigation in the following matters as well as in the provisions of laws of different legislations here in Tanzania. ADR suits and functions well in situations where the disputants are to maintain the ongoing relationships even after resolving the dispute. These situations include employer and employee, landlord and tenant, business partners, and family relationships. This is the main reason why all dispute settlement mechanisms introduced in Tanzania recently in these areas of the law make it mandatory to initially try to resolve by some form akin to ADR.
Just like many other African countries, the introduction of ADR in Tanzania was just reinforcing the already existing traditional ways of settling disputes. ADR was transplanted into the African legal systems in the 1980's and 1990's as a result of the liberalisation of the economies, which was accompanied by such conditionality as reform of the justice and legal sectors, under the Structural Adjustment Programmes (SAP's). However, most of the methods of ADR that are being promoted by the Western countries to be included in the African legal systems are similar to the post-colonial African dispute settlement mechanisms that encourage restoration of harmony and social bonds in the justice system.
In order to address the problems facing the justice system in Tanzania, several measures were devised and put into action, including the enactment of the Ward Tribunals Act in 1985. Inter alia, this law vests limited judicial power onto ward tribunals, emphasising the need to use mediation as much as possible in resolving disputes brought before it. Furthermore, the minister responsible for justice ordered the Law Reform Commission of Tanzania to carry out a study and on delays and backlogs of civil cases in 1986. The study was envisaged to find out the major causes of the inordinate delays in determination of civil cases and advise on how to get rid of this problem. The study found, inter alia, that delays in disposing civil cases as well as the mounting case backlogs were increasingly becoming unbearable and an immediate lasting solution was needed to address this problem.
Another measure undertaken to address the challenges facing the legal system in the country was the gazetting of Government Notice No. 508 of 1991, which severely restricted the granting of adjournments in civil cases. Administratively, there was devised the Shift System, which was introduced to ensure maximum use of the available resources by having morning and afternoon court sessions. That was soon followed by the Individual Calendar system whereby a case assigned to a particular Judge had to be dealt with by that Judge to its finality so as to reinforce accountability and reduce confusion and misplacement of case files.
Despite the Government and the Judiciary introduced both legislative and administrative measures, still the civil justice system continued to grapple with a number of chronic problems, including inordinate delays in disposing cases and caseload congestion. This led Tanzanian Judiciary and the Government to continue the searching for appropriate and effective dispute resolution mechanisms. During one of his visits to the United States of America, the late Chief Justice of Tanzania, Francis Nyalali, came across the practice of ADR in the Superior Court of Washington, DC.
As a follow up on this resolution, the Chief Justice appointed a Committee of three High Court Judges chaired by Hon. Mr. Justice Mroso (now retired). Among the Terms of Reference of the Committee were: to compile and recommend strategies and tactics to be used in a "Programme" for elimination of court delays in the disposal of cases in the High Court and subordinate courts, and to consider the possibility of adopting in the country a system of administering justice by using ADR mechanisms in the form of negotiation, mediation, conciliation, and arbitration as part of the civil justice system or outside the court system as practised in the Superior Court of Washington, DC; as well as to consider how the strategies and tactics used so far in Tanzania can continue in operation parallel to the ADR.
Main Body
In Tanzania, court annexed ADR is mainly practiced in the form of mediation. This mode of dispute settlement was introduced in Tanzania through GN No. 422 of 1994, amending the first schedule to the civil procedure code (CP). This amendment introduced certain stages, procedures between the completion of leadings and a given in the civil court practice in Tanzania as discussed below.
THE 1994 AMENDMENT TO THE CPC INTRODUCING ADR
The implication of the 1994 Amendment to the CPC
In Tanzania civil courts ADR is commonly practiced in the form of mediation, which was introduced in Tanzania by GN No. 422 of 1991, amending the 1st schedule to the CPC. This amendment introduced certain stages between completion of proceedings and trial in civil cases. These amendments introduced three new orders i.e, Order VIIIA, order VIII B of the CPC, were made applicable to Arusha, Dar es salaam and Mwanza region only as pilot areas, exempting the rest of the High court registries. Since then, ADR has been applied in all trial courts in civil cases in Tanzania.
The implication of 1994 Amendment to the CPC, is that all civil cases filed in the courts must first be referred to the ADR in the form of mediation. The legal position was buttressed in Fahari Ltd & another r V Register of the company & another[3] where the court of Appeal of Tanzania held that the requirement for a suit to be referred to mediation first trial begins is a mandatory under the CPC. In this case, the plaintiff had filed winding up --proceedings (Civil Case No. 98 of 1998 in the High court of Tanzania, Dar es salaam Registry. But the matter proceeded to having first being referred to mediation in contravention of Orders VIIIIII A, VIII B, and VIIIII C. On the reason the court of Appeal ordered the mediation is mandatory.
REFERENCES
Books
Clement J. Mashamba, (2014) Alternative Dispute Resolution in Tanzania, law and practice Mkuki na nyota Publishers Ltd.
Statute
- Arbitration Act Cap- 15 R.E 2002
- Civil Procedure code Cap 33 R.E 2002
[1] Cap 15 R.E 2002.
[2](1858) 26 Ikav.306, 312 reported to English Case at 916-919
[3] Court of Appeal at Dar es salaam. Civil revision No. 1 of 1998
