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MARCH NEWSLETTER

FIDIC CONTRACTS TRAINING ATTENDANCE

Principal Partner, Cyril Pesha and Mary John, Junior Partner attended a Training program at CBD Hotel in Dar es Salaam on 26th & 27th March, 2018.  It was organized by the Association of Consulting Engineers of Tanzania (ACET) and was conducted by Engineer Robert Werth, a FIDIC Accredited Trainer.

 The program titled ‘Contract Management & Administration of FIDIC Contracts’ is organized by the International Federation of Consulting Engineers known by its French acronym FIDIC. It is an international standard organization for Consulting Engineer ing and construction. Increasingly all World Bank financed and Government of Tanzania construction projects have used templates prepared by FIDIC in preparing contract documents. The more famous 1999 version of contracts have recently been replaced by a 2017 version. For lawyers not directly involved in execution of contract projects, the program was very beneficial from the arbitration perspective, in that it gave necessary insight in the templates and provided necessary training for acting as Counsel or being used as a resource persons for arbitration  of disputes, involving the FIDIC template contract documents.

Originally the FIDIC conditions of contract were contained in a Red Book. Now the templates appear in a range of colours called Rainbow suite of Contracts; with Red colour for BOQ General contract projects, and Yellow colour for Plant and Design Build projects which are lump sum contracts. The latter contracts, projects are designed by contractors using their array of consultants.

Each participant earned a Certificate of attendance, and the Red and Yellow Books templates. For the Engineers in attendance, besides the templates, they earned 12 points of continuous professional development education.

HIGHLIGHTS ON THE AMENDMENTS MADE BY THE TANZANIA COURT OF APPEAL (AMENDMENTS) RULES, 2017

INTRODUCTION

The Court of Appeal of the United Republic of Tanzania (herein referred to as ‘The Court of Appeal’) is the highest court in the judicial hierarchy of Tanzania. It is established under Article 117 of the Constitution of the United Republic of Tanzania, 1977 as amended from time to time(herein referred to as ‘The Constitution’). It does not have any original jurisdiction to hear any matter.

The Court of Appeal has jurisdiction to hear appeals from the High Court and from subordinate courts with extended jurisdiction and it has powers of revision, review and reference. The laws and regulations governing the Court of Appeal, apart from the Constitution, are the Appellate Jurisdiction Act (CAP 141) and the Tanzania Court of Appeal Rules, 2009 GN No. 368 of 2009 (herein referred to as ‘Court of Appeal Rules’). The Court of Appeal Rules provide for procedures and practices for getting redress in the Court of Appeal.

These rules are amended from time to time so as to adjust them to prevailing situations and to cover any gaps. In 2017 some amendments were made to the Court of Appeal Rules by the Tanzania Court of Appeal (Amendments) Rules, 2017 GN No. 362 of 2017.

Below is a brief highlight on areas covered, by amendments and the effect of the changes in the procedures and practice of the Court of Appeal.  

THE AMENDMENTS
  1. Suspension of sentence and stay of execution
Rule 11(1) has been amended in wording only, leaving the substance intact specifically that a death sentence or corporal punishment will not be executed after until time for giving a notice of appeal expires or, where there is a notice of appeal – until when the appeal is determined.
Rule 11(2) has been amended by blending what used to be paragraphs (a) and (b) of the same Rule, hence the new rule reads as follows

Subject to the provisions of sub-rule (1) the institution of an appeal, shall not operate to suspend any sentence but the Court may in any criminal proceedings, where notice of appeal has been given in accordance with rule 68, order that the appellant be released on bail or that the execution of any warrant of distress be suspended pending the determination of the appeal
 
There has been introduced Rule 11(3) which provides that, lodging of a notice of appeal in accordance with rule 83 shall not operate as a stay of execution, nor shall the Court grant an order for stay of execution only because there is an appeal preferred. The court shall grant such order upon showing good cause.
 
Also there has been introduced Rule 11(4) which has set the time within which an application for stay of execution should be made, and this is within 14 days of service of the notice of execution or from the date he is otherwise made aware of the existence of an application for execution.
 
Rule 11(5) is a replica of what used to be Rule 11(2)(d). It enumerates the guidelines which must be proved for the court to grant an order for stay of execution.
 
The rules have been amended to enable a single judge of the Court of Appeal to make an ex parte order for stay of execution pending hearing of an appeal/application. This is covered under rule 11(6).
 
Rule 11(7) lists the documents which must be attached when applying for stay of execution. These documents are (a) a copy of a notice of appeal, (b) a decree or order appealed from, (c) a judgment and (d) a copy of a notice of the intended execution.

 
  1. Acceptance and rejection of documents
The amendments have deleted and substituted Rule 14(5). Previously the rules did not specify the time limit which the adjusted/amended document could be filed and were not flexible lacking room for extension of time, and replaced it with the following provision,
 
Where the Registrar directs a party to amend or adjust a document, the party shall lodge the amended or adjusted document within seven days notwithstanding that such period may go beyond the time prescribed by the law for filing such documents

 
  1. List of authorities and copies of judgment to be referred to
Again rule 34 has been deleted and substituted with another. This rule simply requires that the authorities which an advocate intends to use must be filed with the Registrar. Prior to the amendments the law mentioned reported cases and books but the amendments have added unreported cases as well. Also the period within which the authorities must be lodged in Court used to be 48 hours but the amendments have increased the time up to at least three working days.
 
  1. Application for leave to appeal or for certificate of point of law (in criminal matters)
Prior to the amendments the rules did not specify time within which the Applicants were supposed to apply for either leave to appeal or certificate on point of law where the appeal originated from the subordinate Courts. Rule 44(2) has been amended by introducing a time limit within which the application for leave appeal or for certificate o point of law can be made. It was only directed that the application should be filed without unreasonable delay and it should be before notice of appeal is lodged. Rule 44(2) has been amended by introducing a time limit within which the application for leave appeal or for certificate of point of law can be made. According to the amendments application must be lodged within 14 days from the date when the appeal is lodged.
 
  1. Application for leave to appeal or for certificate of point of law (in civil matters)
Rule 45 been amended as well. Before the amendments, time for applying for leave at the High Court was 14 days from the date of a decision but now the time has been extended through these amendments up to 30 days from the date of the decision. In addition the new rule 45(a) has been subjected to rule 46(1), which requires that the application for a certificate on point of law or leave to appeal are to be made after the notice of appeal is lodged.   
Moreover the rules have introduced a proviso that in computing the time within which to lodge an application for leave made in the Court of Appeal under rule 45(b) there shall be excluded such time as may be certified by the Registrar of the High Court as having been required for preparation of a copy of the decision subject to the provisions of rule 49(3).

 
  1. Application for extension of time where refused by the High Court
The amendments have culminated to the introduction of rule 45A. This rule has laid down the procedure to be followed by an aggrieved party where the High Court refuses to extend time to lodge notice of appeal,  to grant leave to appeal or certificate on a point of law. The rules provide that the aggrieved party to file application within 14 days from date of such decision of the High Court. In computing the time within which an application should be lodged, the period used in preparing a copy of the decision and the order shall be excluded.
 
  1. Time limit for service of applications and supporting documents
Rule 48(4) have been deleted by the amendments. This rule read as follows
“The application and all supporting documents, shall be served upon the party or parties affected within 14 days from the date of filing.”

 
  1. Service of notice of motion
Before these amendments, rule 55(1) the time that was set to serve a notice of motion and affidavit was not less than two clear days. This has been changed since rule 55(1) is deleted and substituted with new contents providing that, the time to serve a notice of motion and affidavits and all supporting documents to the other party is 14 days from the date of filing.
 
  1. Deemed striking out of a criminal appeal
Rule 68A is another new rule introduced by the amendments. This rule provides that where certificates that there is a point of law or leave to appeal are denied, then the notice of appeal is deemed to have been struck out. The exact wording of the rule is as follows;
 
Where an appeal lies only on a certificate that a point of law is involved or with leave, and such certificate or a leave is denied, the notice of appeal shall be deemed to have been struck out and the Registrar shall make such entry in the register

 
  1. Particular of address for service
The amendments have introduced another rule, which is rule 86A. This rule simply requires that the address for service referred to in rule 83(3) and 86(1) should contain enough particulars of the appellant or respondent or the advocate if any. For instance the description of the place of residence of the appellant or the respondent including the “kitongoji” or street name, email address, fax number, telephone number and post code if available.
 
  1. Institution of appeals
It is trite law that for an aggrieved party appealing to the Court of Appeal must attach copy of proceedings among the documents for appealing. A new sub rule – 90(4) has introduced a new concept of time that the Registrar should strive to make sure that the records of proceedings are ready for delivery within 90 days from the date the appellant requested for such copies.


     l. Withdrawal of appeal

Rule 102 (1) allows the appellant at any point during the hearing of an appeal to apply to the Court informally for the withdrawal of an appeal, and the court may grant the application upon such terms as costs as it may deem fit. This was not provided prior to the amendments.
Rule 102(2) is a replica of what used to be rule 102(1) before these amendments. It allows appellant to file a notice to withdraw the appeal any time after instituting the appeal but before the hearing of such appeal takes place.

Rule 102(3) is also a replica of what used to be rule 102(2), and it requires the appellant to serve the respondent such notice before or within 7 days.

If all the parties consent to the withdrawal, they shall file a document signifying their consent in the registry. If all the parties do not consent to such withdrawal the appeal shall stand to be dismissed with costs, except as to the party which consented. Also the court shall consider the appellant’s application for withdrawal. This application must be made 14 days after lodging of withdrawal notice.  

 
  1. Presentation of written submissions
Rule 106 of the Court of Appeal Rules guides the manner in which written submissions should be written. Some of the sub rules in this rule have been amended. Sub rules 8, 9 and 10 of rule 106 have been deleted and substituted by new sub rules.

Basically sub rule 8 provides for the time limit that a respondent has to file his reply to the submission. The content of sub rule 8 has remained the same as it was previously, save for an addition of the word “applicant”. Previously the sub rule only covered the appellants only, but now the range has been widened, and the rules clearly mention the applicants.

Changes were also made in sub rule 9. Previously the rules accorded chance to appellant who has failed to file the written submissions on time to apply for extension of time to file the submission. Where the appellant failed to apply for extension of time, then the appeal or application would be dismissed. Now, the new rule provides that the written submissions filed must be served upon the Respondent within 14 days from the date of filing.

Sub rule 10 prior to the amendments was to the effect that, where the Respondent fails to file the reply within 30 days and there is no any application seeking to extend time, then the Court would proceed ex parte to entertain the appeal or application. The new sub rule is to the effect that failure by the Applicant or Appellant to file written submission in time and failure of the Respondent to file a reply thereto shall not be a ground for applying for additional time for oral submission under provisions of this rule.  


       n. Preliminary Objection

Rule 107 deals with preliminary objections in the Court of Appeal. Rule 107(1) which provides for the manner in which one may bring preliminary objection. This rule has been amended by adding the term “applicant” since previously it only mentioned the appellant.

Rule 107(2) has been deleted and substituted by new contents with the effect that, for preliminary objection to be heard it should contain a point of law, which once argued upon shall bring the case to an end. Rule 107(3) stipulates that the Respondent raising a preliminary objection shall provide such necessary particulars to enable the Court and the other party to grasp the nature and scope of such objection.


     o. Fees payable.

Rule 118 has been amended by introducing a new sub rule (4) which reads as follows:
 
No fees shall be payable by the Republic or the Government in respect of any civil proceedings instituted by or against the Republic or the Government, but a judgment in favour of the Republic or the Government for costs shall, unless the court otherwise directs, include the amount of the fees which would have been payable if the proceedings had been instituted by or against a private person.

 
  1. Amendments in the First Schedule
Moreover the Court of Appeal Rules have been amended in the First Schedule by deleting and substituting Forms B/1 and C/1 which are made under Rule 75. Forms B/1 and C/1 are Notice of Appeal and Memorandum of Appeal respectively.
 
CONCLUSION
 
The amendments introduced are important as they have covered some areas where the law was silent. For instance in areas where the rules previously only mentioned the appellant, while leaving out the applicant, now the amendments have filled those gaps. Also the amendments shall make the applicability of the rules to be more effective as they have improved a number of provisions, and they have added more directives on some procedural aspects which were not stipulated for prior to the amendments. 

 
 
Every application for leave to appeal shall be accompanied by a copy of the decision against which it is desired to appeal and where application has been made to the High Court for leave to appeal by a copy of the order of the High Court.

By Tumwesige Evans Lushakuzi.

ARTICLE: ROAD TRAFFIC ACT

Some people’s biggest fear while driving around town is not to drive off Salender Bridge but to be stopped by the police offices at that station. But this should not be the case.  Not unless you’ve made a U-turn where you shouldn’t, ignored the road signs or passed a red light; there is no need to fear the men in white.

 Know your rights and His!!!...or simply read these ABCD’s

A: He has the right,
  • To signal you to stop your vehicle and ask for your name and address and the name and address of the owner of the vehicle according to Section 78 of the Road Traffic Act of 1973(RTA). (so do not freak out).
 But in case you think he or she is misbehaving or acting illegally, you have the right,
  • To ask for his name, rank, number and address of the station where he is based and report your concerns. 
B: He has the right,
  • To ask for you to show your licence and can inspect the vehicle to make sure it’s ‘road worthy.
But in case you don’t have it with you (Bribe should not be the first thing that comes to your mind) 
  • You don’t have to provide it immediately, according to section 77 of the RTA OF 1973 but you will be required to do so within the next 72 hours, however having it with you avoids further inconveniences and is important if you’ve committed a more serious road offence. 
C: In case you are planning to have a wild Friday night and take a couple of shots, then drive;
  • The police has the right to request for a breath test on a breath-test analyser instrument to see if the amount of alcohol in your body is above the prescribed limit.  If a police officer of a rank or a rank higher than the rank of Assistant Superintendent suspects a driver of a motor.
vehicle or any other vehicle to have taken alcohol, that police
officer may use an Alco meter and require that person to un-dergo breath test to ascertain the blood alcohol content in the body of that driver.
 
Just so you know; 
  • The prescribed limit mentioned above is eighty milligrams of alcohol in one hundred milliliters of blood according to section 49 of the RTA.
But for your own safety and for everyone else’, DON’T DRINK AND DRIVE!!! There are Ubers and Taxis everywhere in town.

D: When an accident happens,
In case of an accident, Section 57 of the RTA requires you to stop, having regarded all circumstances and offer all practicable assistance to the injured party.

But in some circumstances, stopping would endanger your life as some civilians believe harming the driver is the solution.

Therefore if after regarding all the circumstances, you feel it is not safe for you to stop, you can drive off but is required under the same section to report immediately to the nearest police station.
 
It’s a vehicle, not a mini prison...Enjoy your ride!

By Annette Ikongo.
ARBITRATION TRAINING ATTENDANCE
During the month of February, Miss Brenda Mrema attended the Arbitration training in Arusha. The training was on 23rd February, it was organised by the East Africa Law Society and conducted by Mr Thierry Ngoga from Kigali. 

Mr Thierry previously served as Registrar of Kigali International Arbitration Centre (KIAC) for four years as Registrar & project Director to KIAC- ADR Project since 2012. He co-administered KIAC’s arbitration proceedings (appointing tribunals, advising tribunals and sharing best practice with parties on complex legal issues arising out of the arbitration proceedings) and actively participating in KIAC business development strategy.

INTERN UPDATES

Ms. Gladness Komba who was once an intern at the firm and went for further studies at the Law School of Tanzania, rejoined the firm in  March for her field rotation and completed her rotation successfully.

We wish her all the best in her future endeavors.

Evans and Juliana who were doing their field work went back to Law school. They began their finals on  5th March 2018 and are now back with the firm while waiting for their results.

BIRTHDAYS

In February we celebrated the birthdays of 4 of our team members, Mr. Cyril Pesha 9th February, Ms. Mashavu Sungura 11th February, Ms. Pendo Shamte 20th February and Ms. Martha Francis 22nd February. 

During March we celebrated our Finance Officer, Patricia Mhekwa’s birthday on the 17th.

We wish them all a fruitful year.

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