INTRODUCTION
On 08th September 2023 the Capital Markets and Securities Authority issued the Capital Markets and Securities Tribunal Rules, GN. No. 649 of 2023 as amended by Capital Markets and Securities Tribunal (Amendment) Rules Gn. No. 468 issued on. 14th June 2024. These Rules were issued to provide for the procedural aspects of resolving disputes relating to capital market and securities in Mainland Tanzania.
KEY TAKEAWAYS FROM THE RULES
COMPOSITION OF THE CAPITAL MARKET TRIBUNAL
The Rules provides that the Capital Markets Tribunal established by section 136A of the Capital Market and Securities Act, Cap. 79 must be composed of chairman; and four members with knowledge and experience on the capital markets, one of whom must be a lawyer.
The member present at the sitting of the tribunal and thus interested in the matter before it, has to disclose his or her interest and the tribunal must act accordingly towards that disclosure of conflict of interest. Further the Tribunal shall be headed by the registrar who shall perform all the administrative functions of the tribunal.
APPEAL TO THE TRIBUNAL
A person who is aggrieved by the decision of the Capital Market Authority is required to appeal to the Capital Market Tribunal within 30 days of the date of decision.
However, a person intending to appeal is required to file a notice of intention to appeal within 7 days from the date of the decision in respect of which the appeal is to be preferred. An appeal to the Tribunal shall be instituted by lodging a statement of appeal in a prescribed Form with the Registrar of the Tribunal. Under the Rules, appeal lies, among others, on the matters pertaining to:
- Interpretation of capital market laws
- Dispute between the Capital Market Authority and stock exchange or any market intermediaries.
- Dispute between market intermediaries and their clients.
- Refusal to be granted license and suspension and revocation thereof.
- Removal of a security from the official list of a stock exchange.
- Refusal to admit securities in a stock exchange.
- Disputes between listed companies and regulators or the securities exchange.
- Imposition by the Authority of limitations or restrictions on a license.
- Suspension of trading of a security on a stock exchange.
Upon receipt of a notice of intention to appeal, the Registrar of the Tribunal is required to endorse on it the date on which it was received and thereafter enter or cause to be entered into the register, all relevant particulars as may be necessary to identify such appeal. A copy of the endorsed notice has to be served to the respondent. The amendment of statement of appeal is also allowed under the Rules either by the Tribunal on its own motion or by application of an appellant.
RECEIPT OF APPEAL AND NOTIFICATION OF PARTIES
The Registrar is required to endorse the date of receipt of the statement of appeal and send a copy of the appeal to the respondent together with a notification letter requiring the respondent to submit his written statement of reply within fourteen days from the date of receiving the notification.
The Rules mandate the Registrar to reject the appeal in case of non-compliance with the requirements provided under the law. The tribunal is also given power to extend time within which to institute an appeal either by written application by the appellant, on its own motion or upon respondent being given an opportunity to be heard.
STRIKING OUT AND WITHDRAWAL OF AN APPEAL
Tribunal in its discretion has been given powers to strike out an appeal where it is satisfied that any condition regarding institution of an appeal has not been complied with. However, before striking out an appeal it has to give reasons thereof.
The Rules allows an appellant to withdraw an appeal by written notice to the Registrar not later than 3 days before commencement of hearing. The appellant is also required to serve of the notice of withdrawal to the respondent any other party who may be affected by the lodged appeal within seven days after lodging the notice of withdrawal
APPEARANCE AND REPRESENTATION OF PARTIES
In every proceeding before the Tribunal the appellant may appear in person or be represented by a person registered as market intermediary, tax consultant, accountant, auditor or advocate, and the Capital Market Authority may be represented by a person duly authorized in that behalf.
In the event the appellant does not appear, but the respondent appears, and it is proved that the notice of hearing was duly served but the appellant failed to appear for no justifiable cause the appeal may be dismissed unless the Tribunal deems fit to adjourn the hearing. If it is dismissed the appellant will be precluded to bring an appeal in respect of the same cause of action. Instead, the appellant may make an application to set aside the dismissal order. However, an order to set aside dismissal order cannot be made unless a notice of application thereto has been served on the opposite party.
Respectively, if the non-appearance was on the part of the respondent, the appellant may apply to proceed ex parte. However, upon providing justifiable reasons the Respondent may apply to set aside the ex parte decision.
Further, where neither party appears at the hearing of an appeal for no justifiable cause, the Rules allow the Tribunal to make an order dismissing the appeal or proceed to review the matter by way of review of documents and inform the parties accordingly.
PROCEEDINGS OF THE TRIBUNAL
The Rules require the proceedings in the tribunal to be conducted with little formality and technicality as possible. Thus, the Tribunal shall not be bound by strict rules of evidence or court procedures. The sitting of the Tribunal must be in Dar es Salaam and three members of the tribunal must form quorum during the determination of the appeal.
The records of proceedings on appeal must be taken down in writing by the Chairman of the Tribunal or by any person authorized to do so, in the manner to be decided upon by the Chairman.
REVIEW BEFORE TRIBUNAL
The Rules open up room for any party aggrieved by the decision of the Tribunal to apply in writing to the Tribunal for a review of its decision. However, a party intending to apply for a review shall issue a written notice to the Registrar, within seven days upon delivery of the verdict, of his intention to seek redress by way of review before the Tribunal.
The application for review is required to be lodged within ten days from the date of issuance of the Notice of intention to apply for review of the decision of the Tribunal.
NOTICE TO PARTIES TO ATTEND HEARING AND CALL FOR WITNESSES
Under the |Rules, the Registrar is required to issue 14 days’ notice of hearing to the parties. At the hearing the Tribunal is allowed to call for expert opinion as the case maybe.
Further, the Tribunal can, on application by either party or on its own motion, call witnesses for such additional evidence. Therefore, upon completion of the hearing, the Tribunal must give its decision within 45 days.
ENFORCEMENT OF DECREE
The Rules provide that, a decree of the Tribunal must be extracted from the decision and be signed by the Chairman or the Registrar, as the case may be, or their successors, in office.
The decision of the Tribunal must be enforced by submitting a written application to the Tribunal in prescribed Form and the Chairman or Registrar, thereafter, issue an order authorizing execution. The execution of the decree must be governed by the rules of the Civil Procedure Code, Cap. 33.
APPEALS TO THE COURT OF APPEAL
The Rules allow appeal to the Court of Appeal of Tanzania, and the timeline within which an aggrieved person can lodge an appeal is within 30 days from the date of the decision. The whole process of lodging appeal to the Court of Appeal of Tanzania must be governed by the provisions of the Court of Appeal Rules, 2009.