Q&A – 12 March 2013

Suit repeated

I won a case against a party 18 months ago, only to find that they have reinstituted another suit on the same subject matter but this time in a different Court. They have also not mentioned anything about my victory in the other previous case. As far as I am concerned I do not see the point of defending myself when the suit has already been disposed off. Please guide me.
TL, Dar

Whilst justice must be done and be seen to be done, there is also a well known public policy principal in law that there must be an end to litigation. The civil procedure code of Tanzania also amplifies this point in that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a Court competent to try such subsequent suit or the suit which such issue has been subsequently raised and has been heard and finally decided by such Court.

Thus you must defend this new suit and raise the above argument of res judicata.

Arbitration clause in contract

I am entering into a supplies contract with a company in Tanzania. My question is why should there be an arbitration clause in the contract when Tanzania has a Court system? The clause reads there will be one arbitrator jointly appointed by the parties and the sharing of costs by the parties. What happens if we do not agree on the appointment of the arbitrator?
RL, Dar

Arbitration is a form of alternate dispute resolution and a legal technique for the resolution of disputes outside the Courts, where the parties to a dispute refer it to one or more persons called the arbitrators, by whose decision called the award they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.

Arbitration has its advantages. Depending on the size of the contract, it is usually cheaper, more efficient, faster, less stressful and quite effective as opposed to going to Court, which is bound by strong civil procedures which makes it sometimes more onerous and expensive. By submitting to arbitration you are not undermining the Courts as you still have to go to Court to get the award registered and for it to become the order of the Court capable of being executed. Of recent, arbitration has aided the Courts in reducing the number of disputes being registered in Court.

For a sizeable contract, we would prefer that the arbitration clause have 2 arbitrators appointed by each of the parties, and the 2 arbitrators to jointly appoint a third person called an umpire, making a total of 3 individuals. Sometimes this proves to be expensive and hence contracting parties sometimes decide to appoint only 1 arbitrator.

In Tanzania arbitration falls under the Arbitration Act which provides for powers of the Court to appoint an arbitrator in the event a single arbitrator has not been appointed. This law states that the power of the Court in certain cases to appoint an arbitrator, umpire or third arbitrator in any of the following cases– (a) where a submission provides that the reference shall be to a single arbitrator and all the parties do not, after differences have arisen, concur in the appointment of an arbitrator; (b) if an appointed arbitrator neglects or refuses to act or is incapable of acting the vacancy should not be filled and the parties do not fill the vacancy; (c) where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him;
(d) where an appointed umpire or third arbitrator refuses to act or is incapable of acting or dies or is removed and the submission does not show that it was intended that the vacancy should not be filled, and the parties or arbitrators do not fill the vacancy, any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in appointing an arbitrator, umpire or third arbitrator.

The law further states that if the appointment is not made within seven clear days after the service of the notice, the Court may, on application by the party who gave the notice and after giving the other party an opportunity of being heard, appoint an arbitrator, umpire or third arbitrator who shall have the like powers to act in the reference and to make an award as if he had been appointed by consent of all parties.

We also suggest that you insert the venue of the arbitration and the language to be used during arbitration proceedings. Submitting to arbitration does not take away from you the right to file any sort of urgent application in Court, but the Court in arriving at any decision shall always take cognizance of the fact that the parties have agreed to arbitrate.

Validity of certificate of disposition

In 2009 I sold my house located in Kinondoni District and successfully applied for the certificate of approval of disposition from the Land commissioner. However, before paying statutory dues, I was transferred to Kigoma region as my new working station and where I stayed for two years and never came to Dar. I got my annual leave this year and came to Dar to complete the process of transfer and surprisingly the land officers have told me to re- start the process. Is this proper? Please advice.
HM, Kigoma

From the above facts, it is quite clear that you have delayed in paying your statutory dues under the certificate of approval issued to you. The certificate of approval of disposition is limited by time under the law, which is one year from the date it was issued.

The registrar cannot make any entry on the register in respect of any disposition unless and until all premia, taxes and dues have been paid. Since the certificate of approval of disposition has expired you have no choice but to restart the process again.