20111017 TZCA Mwanza2

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: RUTAKANGWA, J.A•• KIMARO, J.A •• And ORIYO, J.A.) CIVIL APPEAL NO. 96 OF 2010 EMMANNUEL R. MAIRA.11 •••••••••••••••••••••••••••••••••••••••• ,i,, •• APPELLANT VERSUS THE DISTRICT EXECUTIVE DIRECTOR . OF BUNDA DISTRICT COUNCIL ................................. RESPONDENT (Appeal from the Decision/Judgment of the Higa:, Court of Tanzania at Mwanza) (Masanche, J.) Dated the 27th day of August, 2002 In Civil Case No. 9 of 2001 JUDGMENT OF THE COURT 7 & 17 October, 2011 ORIYO, J.A. This matter started way back in 1996 and has a long chequered history in the courts. It began with Civil Case No. 9 of 2001 filed in the High Court at 1 Mwanza on 5th March 2001. It has been before this Court on three previous occasions. It first came to this· Court on 19th July, 2010 for hearing of ·-an applicatio_n for extension of time to do the following: 11 {iJ, . time to file a notice of appeal; · ... (ii) time to apply for copies of proceedings, judgment, decree and drawn order; (iii) time to file appeal against the decision of the 0 High Court of Tanzania at Mwanza, (Masanche, J.} dated 2~ August, 2002." Extension of time was duly granted (Kalegeya, J.A.) and a memorandum of appeal was filed on 17/12/2010. • I I, , 'I. ' I Again the matter was before the Court on 20th May, 2011 when th( hearing of the appeal was adjourned due to default of the respondent. ,I ' I I I On the third occasion the matter came on 22nd August, 2011. This tirr hearing was adjourned at the instance of the appellant's counsel for time · 2 ,,. ~. --(. /,,:.~ ,. ·::. .-,. ~ ,J.•r. ,'. ~·: ~~...~ .· -~- . . .. • ,.,._._.:. :i. ..'!- -· ..._~ - ~ ~ • , secure proof of service of the written submissions on the respondent. In order to avoid further delays the hearing of the appeal was adjourned for hearing during the Court's sessions scheduled for Mwanza in September/October, 2011. 0 When the appeal was called on for hearing, Mr. Magesa, learned counsel for the appellant prayed for and was duly granted leave to proceed exparte after proof of service on the respondent. Leave to proceed exparte was , granted under rule 112(2) of the Court of Appeal Rules, 2009. After making some clarifications on the written submissions Mr. Magesa adopted the written submissions as filed. The appellant's memorandum of appeal has 4 grounds of appeal:- 1. That the learned Judge erred in law and fact when he heard preliminary objection on 19/8/2002 and ' '' > , I delivered a ruling on 27/8/2002 in a matter, which was before him for mediation and not for hearing. l : 3 f,, ' 1l /1 ' •f ;1.s ! 2. That in alternative, the learned Judge erred in law and in fact to make a departure from the scheduling order without application for such departure having been made before him contrary to the provisions of rule 4 of Order VIIIA of the Civil Procedure Code. '·- 3. That the learned. Judge, erred in law and in fact to make a ruling which was overruling the decision of another Judge in the same matter. 4. That the learned Judge erred in law and in fact to hold that the applicant's case involved summary dismissal, when Hon. Mlay, J. had held that the applicant case did not involve summary dismissal. Essentially the appellant's complaint is on the unsatisfactory conduct of the proceedings in the High Court in Civil Case No. 9 of 2001, Mwan, Registry. It is the appellant's contention that the case was assigned to a tri judge, Mlay, J. On 16th July, 2002 the learned trial judge made a schedulir order setting out the dates, time for future events or steps under Order VII of the Civil Procedure Code. In the scheduling order, the case was to cor 4 before a mediation judge on 19th August, 2002; and the mater was duly placed before Masanche, J. as mediator judge as per schedule. The centre of the complaint is that when Masanche J. was presiding over the case as a mediation chairman,. he heard and determined a preliminary point of objection raised by the respondent. It is submitted by the learned counsel for the appellant th}t-. Justice Masanche had no jurisdiction to hear and determine the objection as he did. The learned counsel further submitted that Masanche J had two options in .the circumstances. Either to proceed with the case unde Order VIII C of the Civil Procedure Code or return it ~o the trial judge t( consider departing from the scheduling order above. We have found it appropriate to discuss the first ground of appeal befor we venture to the alternative in ground 2 of appeal. 0 It is common knowledge that the use of Alternative Dispute Resolutic (ADR) through Negotiation, Mediation, Arbitration or such other simil, mechanisms to settle disputes was not part of our laws until 1994 and w; subsequently incorporated into the Civil Procedure Code, through Orders VIII VIIIB and VIIIC. The Alternative Dispute Resolution· Mechanism is us, 5 worldwide. For Tanzania, the most popularly used mechanism in our courts is resolution of disputes through Mediation. Order VIIIA of the Civil Procedure Code, rule 3 thereof requires the presiding judge or magistrate in every casE whicl;l -is a subject of mediation to conduct a scheduling and settlemen conference with the parties within 21 days after the conclusion of pleading ,._ and make a scheduling order [rule 3(1)]. The purpose of the scheduling ordE is to ascertain future events in the c~se, such as setting out dates or time fc future events or steps in the case [rule 3(2)]. The scheduling conference order in the case was made by the tr· judge on 16th July, 2002 as follows:- 1. Case assigned to speed track one 2. Case to be finalized by 5/3/2003 3. Mediation completed by 19/9/2003 ' . 4. Mention before mediator on 19/8/2002 5. If mediation fails mention before trial judge on i{ I. ' 14/10/2002 6. File to be placed before the judge-in-charge to appoint a mediator. 6 Rule 4 of Order VIIIA prohibits amendments to a schedulirm conference order. It provides:-·· " 4. Where a scheduling conference order is made, no departure from or amendment of such order. I· l : .I ' ~- •.• I shall be allowed unless the court is satisfied that such departure or amendment is necessary in the '. ' interests ofJustice... '~ ' e ' l In terms of rule 4, the scheduling conference order given by the trial judge on 17 July, 2002, before the dispute was handed over to Masanche J. for medlation, had to be strictly followed unless for exceptional reasons in the interests of justice. i ..~ ·., In accordance with the scheduling order above, a mediation judge was appointed, (Masanche, J.) and the case was before him for a mention, on 19/8/2002. The complaints in the appeal arose out of the proceedings before • , r••. the mediator Masanche J. on 19/8/2002. Indeed it is true that it was during the mention of the case before the appointed mediator judge when the 7 learned counsel for the respondent raised a preliminary objection on a point of law that the High Court had no jurisdiction over the dispute. The mediator judge heard the parties on the objection and reserved his decision to . ,. 27/8/?0TJ2 when he delivered his decision to strike out the suit with costs. It is Mr. Magesa's strong contention that the mediator judge had no jurisdiction and judge was incompetent to hear and determine the suit for reasons: namely that he heard and made a decision on a matter that ought to 0 . be heard and determined by the trial judge (Mlay, J.). Further, as a mediator, he was bound by the scheduling order and he made a departure from the scheduling order in contravention of the law as spelt out in rule 4 of Order VIIIA. ; I '' l' We now have to decide on whether the mediator judge acted contrary to law and practice and thus usurped the jurisdiction of the trial judge. We have failed to find a reported decision of this Court directly on the matter and Mr. Magesa, learned counsel, did not refer us to any. 8 However, we have found some inspiration from Tom Arnold in his artic titled:- "Mediation Outline, A Practical How -to Guide for Mediators and Attorneys in Alternative Dispute , •.. Resolution: What it is and How it works'; 1997 edition at page 211 (2011 Reprint), edited by Rao & William Sheffield (Tom is a fellow of the Chartered Institute of Arbitrators (London) and a cc founder-director of International Centre for Arbitration) The author defines what Mediation is. He states:- "Mediation is not a determination, but a facilitated negotiation. The source of morality in mediation is the parties' freedom themselves to evaluate the law and the facts, even to err in what is law, is fact, or is important, and to walk away with no decision if either of them does not like the deal that is offered'~ , I. 9 j: .l The following are some extracts from the same book, A Practical How-to Guide ..... which we think may be helpful to us in this appe~I. It states:- '1,4dju_~cating on the issue ofjurisdiction of a court is a . •. judicial process and/or function. It does not fall within the province .of the mediation process. The latter, in our considered opinion, is a complementary mechanism of the formal court process geared primarily at a speedy resolution of disputes. As such, it is characterized by a lot of informalities in procedure and the way the ultimate decision is arrived at. That'is also 0 why contrary to the usual judicial adjudication process the ultimate decision in the mediation process is that of the parties ·themselves and not of the mediator. In other words, the disputants themselves, retain control over the process and outcome. " From the extracts it is obvious that .. 10 I :-,,_ : ~ - " " = - ~ - - - - - - - - - - - - - - - - - - ' ik: \:- r '. ·,~{:~~-' , a mediator does not sit in a judicial capacity. He plays the role of a facilitator helping the parties reach an amicable lasting solution to their dispute. He advocates , for a negotiated settlement -of the dispute- In the instant case Masanche, J. abdicated the role of a 'i\.,,,, , mediator on 19/8/2002. For example, in the case of Nataraj Studios V. Navrang Studios-AIR 1981 S.C 537, a question arose with regard to whether the arbitrator could decide the statutory rent payable. The Supreme Court held that this involved public Policy and the arbitrators had no jurisdiction to usurp the function of the courts. " It goes without saying, therefore that mediation is not the same as a judicial process. In our view{ it explains why the Civil Procedure Code has made a distinct separation of the judicial and the mediation processes, (see - Orders VIIIA, VIIIB, VIIIC) of the Civil Procedure Code. 11 In the case of Abasi Salum Kichenje Vs Shehe Mohamed Zayumba and Another, Civil Appeal No. 49 of 2005, Tanga Registry (unreported); in a dispute similar to this· case, the Court stated the following:- ''11e judge or magistrate assigned to try a case cannot, in our view, be the mediator judge or magistrate. So it was wrong in this case for judge to assume the role of mediator judge and a trial judge in the same case. " For the reasons we have stated, we are now of the firm view that the mediator judge in the High court vested himself with the jurisdiction of a trial i !. judge which he did not have in the case to hear and determine a preliminary i I objection contrary to law and procedure. Accordingly we allow the first ground r of appeal. We nullify, quash and set aside the entire proceedings, judgment, r r orders including the decision of the mediator judge of 27 August; 2002 and al . ' I subsequent proceedings in the High Court emanating from Civil Case No. 9 01 2001. We order that the record be remitted to the trial court for the case tc : I ' I . I I 12 I i! be tried de novo. The appellant to have his costs in this Court and the court below. DATED at MWANZA this 17th day of October, 2011 ,._ . ,. E.M.K. RUTAKANGWA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL K.K. ORIYO JUSTICE OF APPEAL I certify that tflis is the true copy of the original ,..,.... I c:= j --: ' - i) J.S. MGETTA DEPUTY REGISTRAR COURT OF APPEAL 13 I ! I I ,_,!