Q&A – 3 December 2012
Interpreter misinterpreting
I appeared in a case where a party from outside the country had an interpreter. After the proceedings, I was told by someone that the interpreter was not truthful in the way he interpreted. Is this not an offence?
PO, Dar
Yes it is an offence. The Penal Code has provided for exactly such a situation and states that any person who, having been lawfully sworn as an interpreter in a judicial proceeding, willfully makes a statement material in that proceeding which he knows to be false, or does not believe to be true, is guilty of the misdemeanor termed “perjury”. Section 104 further states that any person who commits perjury or suborns perjury is liable to imprisonment for seven years. However, section 105 states that a person cannot be convicted of committing perjury or of subornation of perjury solely upon the evidence of one witness as to the falsity of any statement alleged to be false.
Unhappy with Commercial Court rules
I have read with great displeasure the Commercial Court rules that have been sent out to the Banks and am unhappy at all the bureaucracies introduced therein. I think there is an agenda in trying to make the Commercial Court like the other Courts- slow and tedious.
HE, Dar
We are not sure what the question is above. In fact, when we saw your question we were not sure how to answer it. However, after reading it and totally disagreeing with your comments, we thought we would take this opportunity to guide you on some of the new rules in the Commercial Court, that in fact speed up the cases. We also doubt that you have been reading the right Commercial Court rules as everything in the current new rules of this Court are meant to avoid delays.
Rule 17 states that (1) Notwithstanding the provisions of rules 9 to 33 of Order V of the Code, substituted services may be affected electronically by way of e-mail or facsimile using the addresses previously disclosed and used between the parties in their business transaction. (2) A copy of such service shall be simultaneously copied to the Court (3) For the avoidance of doubt, a sent status report shall be deemed as proof of service. Hence you can see that the new rules have introduced this new form of electronic service.
Rule 32 states (1) Except for circumstances not provided for under these Rules, the provisions of Order VIllA and Order VIlIB of the Code shall not apply in determining speed track of commercial cases. (2) All commercial cases shall proceed and be determined within a period of ten months from the date of commencement, and not more than twelve months. (3) Thirty days before the expiry of the time prescribed under sub rule (2), any party to the proceedings may orally apply to the Court for extension of life span of the case, and the Court may upon sufficient reasons adduced grant the application and the party in favour of whom the extension is made shall bear the costs of such extension, unless the Court directs otherwise. Hence here you can see that the rules advocates that a case must be completed in a maximum of 12 months, which is surely beneficial to the Banks.
Rule 58 states that the Court may, on an application by a party, allow a witness to give evidence without being present in the courtroom, through a video link at the cost of the applicant. Again, you can see here that a witness need not come all the way to a hearing- he can give evidence by a link further saving time and expenses for a party.
Rule 67 states that (1) The Court shall, at the conclusion of hearing deliver judgment within a period of sixty days in case of a judgment or thirty days in case of ruling. (2) Where a Judge fails to comply with the provisions of sub rule (1), he shall state in the Court record the reason for such failure. (3) Every judgment shall embody at the end a summary of the reliefs granted by the Court. This is also beneficial to the banks as they can be assured of an expeditious ruling or judgment.
Many a times advocates appearing in Courts go unprepared and start reading files in corridors. This has also been addressed in Rule 44 which states that (1) An advocate who appears in the Court shall be- (a) fully acquainted with facts of the case in relation to which he appears and fully authorized to enter into agreements, both substantive and procedural, on behalf of his client; and (b) prepared to discuss any applications that have been submitted and remain outstanding. (2) Failure to comply with this rule shall cause the advocate on record to be condemned to pay costs, unless sufficient reasons are adduced.
Rule 64 introduces skeleton arguments and states that submissions shall proceed orally, preceded by skeleton written arguments submitted to the trial Judge at least three working days before the oral submissions, provided that failure to prepare skeleton submissions shall not be a ground for adjournment or seeking extension of time to file skeleton written arguments and the hearing shall proceed notwithstanding the failure to present such skeleton written arguments.
Evidence in chief will now be given by affidavit under Rule 49 which states (1) In any proceedings commenced by plaint, evidence-in-chief shall be given by a statement on oath or affirmation. (2) The statement shall be filed within seven (7) days of the completion of mediation and served as directed by the court: Provided that a party’s obligation to serve a witness, statement is independent of any other party’s obligation to file and serve its respective statement. This will further reduce time in disposing off a case.