LITIGATION LAW UPDATE: WHAT LITIGANTS SHOULD KNOW REGARDING THE RECENT AMENDMENTS TO THE TANZANIA CIVIL PROCEDURE CODE, CAP. 33 R.E. 2002; VOLUME II

• A guide to new rules for Pre- Trial Conferences
• Introducing new Rules and time frames for Mediation Conciliation and Arbitration

1.0  Introduction

As indicated above, this is a continuation of the Article discussing the G.N. No. 381 of 2019 published on the 10^th May, 2019 as The Civil Procedure Code (Amendments of the First Schedule) Rules, 2019. You can read volume one here  posted on 29^th June, 2019. This Article discusses in detail Rules 16 to 39 of Order VIII.

2.0  Exploring the Amendments

1. This new amendment introduces a new part B after Rule 16, with the title
   FIRST PRE-TRIAL SETTLEMENT AND SCHEDULING CONFERENCE.
   1. Rule 17 follows which in essence introduces the time frame for setting dates of Orders or Directions for interim Applications or other preliminary matters that have been raised by parties or that parties intend to raise. The said Rule provides that the Court shall hear parties on interim applications or any other matters within fourteen days of pleadings being completed.
   2. Rule 17 (2) provides for yet another time frame, i.e.  Fourteen days from the date that such parties were heard, within which the Court is to deliver a Ruling. Previously, the Code did not provide for a time frame within which the Court is required to issue a Ruling on any interim Application. This resulted in delays as Courts sometimes took up to several months to issue Rulings on simple technical and procedural issues. With the coming into force of G.N. No. 381 of 2019 such delays will be avoided.
   3. Sub rule 3 of the Rules provides for consequences of non-appearance on the date fixed for Orders; including either dismissal of the suit, striking out of the defense or counter claim or any other Order as it [the Court] considers just. The important thing to note here is that previously the Law was silent. Hence it follows that there were no consequences where a party failed to appear on a date that was set for Orders and the Court has had to act on its discretion under Section 95 of the Code in such instances. With the coming into force of the amendment, parties’ attendance has been made mandatory and non-attendance has been made verily culpable.
   4. Sub rule 4 allows for parties to apply to the Court to vary an Order made against such party for non-appearance – such variation and or removal is subject to the party applying for the same within thirty days of issuing of the Order. You shall note that previously, if the Court made an adverse Order against a party, whether for nonappearance or any other reason, such aggrieved party had the option to file an Application to set aside the said dismissal Order.
      Under the Schedule to the Law of Limitation Act, Part III, if a party wishes to set aside an Award under the Civil Procedure Code, such Party is to apply to the Court within 30 days of issuance of such Award. For a suit that has been dismissed and a party wishes to restore it, the said party is to make an Application within 30 days as well. Hence in essence, while the time frame for making such Applications remains the same, the new amendment merely specifically establishes the time frame within the Civil Procedure Code itself.
   5. Rule 18 provides for powers of the Court to direct parties to attend a pre-trial conference relating to matters arising in the suit. Of importance to note here is Rule 18 (3) which gives the Court mandate to enter judgment or enter any other Order that may give effect to settlement provided parties have agreed to such settlement. In our opinion this is commendable as it enhances and facilitates speedy disposal of cases which do not need to go to trial.
   6. Rule 19 (1) provides that parties are to be informed as to the date and time for the said pre-trial conference either in their presence or through notices to be issued accordingly.
   7. With the introduction of this Sub Part, Order VIII A titled FIRST PRE TRIAL SETTLEMENT AND SCHEDULING CONFERENCE was deleted. In essence, all those provisions relating to pre-trial conference under the previous Order VIII A are now inapplicable.
      First Pre- Trial Conference, Consequences for Non-Appearance and Remedies for Aggrieved Parties
      
   8. Rule 20 (1) provides for consequences of failure to appear for the pre-trial conference. In essence, if the defaulting party is the Plaintiff, the suit shall be dismissed, if it is the Defendant, the Defense shall be struck out, and Judgment shall be entered or any other Order made that the Court shall deem fit and just to make.
   9. Sub-rule 3 of the same Rule is to the effect that after the first adjournment, if all parties fail to attend the pre-trial conference, the Court shall dismiss the suit. Please note that this position is new, the old rules under Order VIIIA Rule 5 gave mandate to the Court to give any order as it deems fit, including one for costs.
   10. Rule 21 provides for consequences where either of the parties has failed to comply with any of the Courts directions given during pre-trial conference and the said consequences include dismissing the suit – if the non-complying party is the plaintiff; striking out the defense – if the non-complying party is the Defendant; Order a party to pay costs, or make any other order as it deems just.
       Speed Tracking of Cases
   11. Rule 22 covers the issue of Speed Track of Cases which was previously covered by Order VIIIA Rule 3. Rule 22 (1) introduces the time frame within which the Court is to hold the first pre- trial conference. i.e. 21 days after completion of pleadings. You may wish to note that before the coming into force of these Rules, the Law did not provide for a specific period of time for holding of the pre-trial conference.
   12. Sub Rule 2 of Rule 22 provides for ascertaining of the speed track of cases after consultation with parties. Sub-rule three provides for the time frame for each speed track of cases. With 10, 12, 14 and 24 months for Speed tracks 1,2,3, and 4 respectively.
   13. While the time frame for such speed tracks remains the same as per the Previous Order VIIIA Rule 3, what the new amendment adds is the time from which such speed tracks shall start running. While previously there was confusion generally as to whether the time fixed for speed track of cases starts to run from the institution of a case or from the date of scheduling of the same, the recent amendment clearly provides that the time shall start running from the date Mediation or Reconciliation was marked as failed.
   14. The new Rule 23 is similar to the old Order VIIIA Rule 4, which in essence prohibits departure from or amendment of the scheduling Order unless the Court
2. The amendment further introduces part C, with the title NEGOTIATION CONCILIATION MEDIATION AND ARBITRATION PROCEDURE.
3. You will note that previously the Law provided for Court mandated Mediation that came after the First Pre Trial Conference. Under the repealed Order VIII C, with the title ARBITRATION NEGOTIATION AND MEDIATION PROCEDURE, a dispute referred to any of the alternative dispute resolution procedures was to be dealt with in accordance with directions issued by the Chief Justice.This amendment however introduces negotiation conciliation and arbitration, and goes a step further to provide for rules governing the same. Before coming into force of these Rules, Arbitration was provided for under part II of the Act only. Order VIII C merely mentioned the processes without any specific rules as to how the same are to be conducted. Hence for the litigator, these Rules are in fact a very positive development in the legal practice.
   Rules Governing Negotiation, Conciliation Mediation and Arbitration Procedure.
   1. Rule 24 provides that subject to provisions of other written laws, any civil action is to be referred to negotiation conciliation and arbitration or similar alternative procedure before proceeding for trial.
   2. Rule 25 provides for the procedure of appointing a mediator. Sub-rule 1 is to the effect that parties are to propose the name of a Mediator within 14 days after pleadings are complete. Sub-rule 2 is to the effect that should parties’ fil to appoint a mediator, the Court shall do so and inform parties either manually or electronically.Sub-rule 3 provides that the Court shall notify parties within 7 days after appointing the said Mediator and inform them as to the commencement of the Mediation session. Sub-rule 4 requires parties to provide the Mediator, at least 7 days before Mediation with a statement of issues together with pleadings and any document of importance which identify the issues in dispute and the parties’ positions and interests.Sub-rule 5 requires the Mediator to set a date for the first session of Mediation, this is to be done within 7 days of his appointment as a Mediator. The said first session must be set not later than 21 days after his appointment.
   3. This same Rule (Sub Rule 6) provides a list of persons that may act as Mediators, these include Judges, Registrar or Deputy Registrar, Magistrates – in case of a Magistrates Court, a person appointed by the Chief Justice, retired Judge or Magistrate, and a person appointed by parties – who has relevant experience and qualifications. The Law requires parties, should they choose their own mediator, to remunerate him. However, for those Mediators appointed by the Chief Justice, their remuneration will be published in the Government Gazette by the Chief Justice.
   4. Rule 26 provides generally for the manner in which Mediation is to be conducted. Generally, parties are required to ensure that costs and delays are kept to the minimum, the Mediator is to facilitate communication between parties, facilitate parties to resolve their dispute, conduct separate or joint meetings engage services of an expert if the same can be obtained at no cost or even at a cost if parties are willing to pay the same, the Mediator is also required to be guided by principles of objectivity, fairness and natural justice and also make proposals for settlement of the dispute in question.
      Attendance at a Mediation Session, authority to settle arising issues and Consequences of Nonattendance.
      
   5. Rule 27 provides for attendance for Mediation whereby parties and their Advocates or either of them are to be notified of the date for Mediation and shall attend the Mediation session, further, the Law allows for attendance of third parties in the Mediation should it be determined that the same is liable for either all or part of the claim.
   6. Rule 28 requires a party to mediation to have authority to settle any matter during the Mediation session. A party who attends but requires the approval of another is to ensure that the person from whom approval is sought is available through any mode of communication during the session.
   7. Rule 29 provides for consequences of non-attendance without good cause by a party whereby the Mediator is required to return the file to the presiding Magistrate or Judge, who has mandate to either dismiss the suit, strike out the defence or order the party responsible to pay costs.
   8. Rule 30 allows an aggrieved party to apply to the Court within fourteen days of the Order against him being issued to restore the suit or the written statement of defense. The Court is required to hear and determine the said Application within fourteen days of the same being lodged. The Court may set aside the Order upon the application by an aggrieved party subject to the same showing good cause.
      General Rules – Mediation, Arbitration and Conciliation.
      
   9. Rule 31 requires all communication during the mediation session to be kept confidential by all parties. Parties are prohibited from using any information, document or recording obtained during Mediation at trial.
   10. Rule 32 provides for the period of Mediation, the same is not to exceed a period of 30 days.
   11. Rule 33 provides circumstances under which a Mediation is to come to an end, i.e. by parties executing a settlement agreement, the mediator making a declaration to the effect that further Mediation is not worthwhile, or thirty days thirty days expire from the date of the first session of mediation. Rule 34 requires the Mediator at the conclusion of Mediation to remit the record to the trial court immediately or within 48 hours.
   12. Rule 35 is on Arbitration. The provisions of Arbitration remain the same as under the 2^nd Schedule to the Code.
   13. Rule 36 allows the Court at the request of either of the parties to refer the dispute to negotiation or conciliation and the said matter shall be dealt with in accordance with the Applicable Law and agreement of the Parties to negotiate and reconcile.
   14. The time frame for such negotiation or conciliation is provided for under Rule 38 whereby the same is to be concluded either within a period of 30 days or upon execution of a settlement agreement, or upon a party declaring that further negotiations is not worthwhile. The 30 days period may however be extended.
   15. At the conclusion of said negotiations parties are to remit the settlement agreement to the trial Court immediately or within 48 hours.

3. 0 Conclusion
For a litigant, knowledge of procedural rules is just as important as knowledge of substantive Law. A client places to the litigant all his trust expecting to be in safe and “knowledgeable” hands. A litigant who is ignorant of procedural rules, including the time frames statutorily set, not only fails his client, but fails in his duty as an Officer of the Court, to advise the Court where necessary should any procedural issue arise. This shortcoming does not only arrive at failing a client, but also causes the delay and is one of the underlying reasons for protracting litigation matters in our courtrooms.”

Our Litigation experts at Breakthrough Attorneys dedicated at ensuring the general public and lawyers are aware of the changing rules, published this article to tease the knowledge and awareness of the same.

Please stay in touch for the forthcoming Volume III of this article’s series which will discuss widely amendments to Order IX and Order XVII.

 

Important Notice:

This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, Breakthrough Attorneys, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.