Public Participation in the Legislative Process Rene GSC nn ke recent Act No. 14 Of 2015 Ten Re Conte ona etc Evidence In Tanzania Ponte se eee SeO Rene cn kere ores Legal Framework and Practical Realities The Oxygen’s Life Breathing into Civil Litigation in Tanzanian Courts: A Sword or a Shield? DUS ROR MEA ke YR Seren Pree B ee Rn rant Osos OREO Siar imea ree yk nt Tn ena reo sc oS nD ERR ren aa nayTANGANYIKA LAW SOCIETY RTE PY 2020] Fie Tanvan'a Lawyer Journal fllTHE OXYGEN’S. LIFE BREATHING INTO CIVIL LITIGATION IN TANZANIAN COURTS: A SWORD OR A SHIELD? Hasani Kimela" Abstract In the wake of 2018, the key civil procedure statutes; the Appellate Jurisdiction Act (Cap 141) and the Civil Procedure Code (Cap 33) were amended via the Written Laws (Miscellaneous Amendments) Act No. 8 of 2018. The Act did not make any alterations to the laws but only introduced the ‘overriding objective’, famously known as the oxygen principle, with a view of trumping up access to justice at minimal and affordable costs by washing down the harshness of procedural technicalities. For many legal practitioners and jurists, this reform is a panacea for the long-running stalemate in Tanzania jurisprudence between procedure and substantive justice. This paper examines the applicability of the overriding objective principle in the High Court and Court of Appeal of Tanzania. It questions the Courts’ approach of maintaining overdue flexibility in dealing with the statutory principle instead of laying down a consistent guidance to give effect to this new paradigm of justice. What can be drawn from the High Court and Court of Appeal so far is that the overriding objective is a sword and a shield at the same time? This paper also argues that though the courts maintain that the oxygen principle is not a panacea for all procedural errors, it is not Tutorial Assistant, Faculty of Law, Mzumbe University (Tanzania). LL.B - Mzumbe University, P. O Box 1, Morogoro - Tanzania. Email: hakimela@mzumbe.ac.tz Phone: +255719545638. BU] tio Tonzavia Layer Jourss [ozo RMTclear when and where a fine line separating between the applicability and inapplicability of the principle can be ostensibly demarcated. It further argues that lack of a clear guidance from the Court of Appeal has ushered in uncertainty, inconsistency and unpredictability in the principle's application. Drawing the spirit from the English Courts, this paper concludes that the Court of Appeal’s guidance on how the principle should be given its legal effect is highly on call. Key words: Overriding objective, oxygen principle, substantive justice, procedural rules, courts 1JTLS 7 od Ee 1071. Introduction In the wake of 2018, the key civil procedure statutes; the Appellate Jurisdiction Act (Cap 141) and the Civil Procedure Code (Cap 33) were amended through Act Number 8. of 2018.1 The Act did not make any alterations to the laws but only introduced what it called the ‘overriding objective’ of all civil litigations? as a vehicle for court’s active case management? with a view of attaining the just, expeditious, proportionate and affordable vindication of civil disputes.4 For many legal practitioners and academic fraternity, this legal adage is a panacea for the long-running stalemate in Tanzania jurisprudence between procedure and substantive justice. The paramount objective and traditional view of the modern civil justice regime until the present time has always been deep- rooted in substantive justice, to get at the truth what happened, who said and did what and why. Until now all proposals to reform the system in many jurisdictions have been designed to further this objective, by, for example, reducing the importance of technicalities and avoiding surprise.5 Since its inception in September 2018, the applicability of the overriding objective has’ been tested in the High Court and Court of Appeal frequently. Now, for the past two years since the Act became operational, the courts have been endeavoring \ The Written Laws (Miscellaneous Amendments), 2018 (Act No. 8 of 2018) Available at hitps:/ /tanzania mom rsf.org/uploads/tx_Ifrogmom/ documents/THE_WRITTEN_L. AWS_MISCELLANEOUS_AMENDMENTS_NO.3__ACT_2018_SEPTEMBER_11-_C- Procedures f.pdf 2 FB Attorneys, Inconsistent application of overriding principles at Court of Appeal, (2019). Accessed via https:/ /fbattorneys.co.tz/inconsistent-application-of-overriding- principles-at-court-of-appeal/. 3 Sorabji J, ‘The Road to New Street Station: Fact, Fiction and the Overriding objective.” European Business Law Review, 2012, Vol. 23,1, pp. 75 - 89 4 Section 3A and 3B of Act No. 8 of 2018. 5 Sorabji J, English Civil Justice after the Woolf and Jackson Reforms: A critical Analysis, Cambridge University Press: England, 2014, p.5 108 GERERenE eee fy TLS 2trying to interpret where to invoke the overriding objective rule. The pertinent issue which an inquisitive mind faces during this span of time is one of finding a place where to draw a fine line separating the applicability and inapplicability of the rule. A pivotal question that the courts have not retorted clearly is what approach the court takes to the failure by a party to comply with procedural rules and court orders, and how generous the court is to a party who seeks the court’s mercy for non-compliance. In other words, when should the overriding objectives rule be used as a shield to engulf the defaulting party against sanctions like striking out a defective appeal or when should it become a sword to stab the same in favor of the innocent party and other court users? This paper discusses several aspects of the overriding objective principle. The paper is divided into ten parts. From this introduction, which is part one, part two briefly explains the legal concept of the overriding objective. Part three provides a historical overview of the principle. In part four, the paper expounds on the legal reforms undertaken in Tanzania and how the courts have responded to those reforms. In seeking to respond to whether it is a sword or a shield, part five examines the applicability of the overriding objective in the High Court and Court of Appeal. Part six discusses the theory of justice as propounded by Jeremy Bentham. Part seven deals with the court's legitimate powers over statutes. The paper draws inspiration from the English Courts in part eight, while in part nine it briefly explains the duty of advocates in furthering the overriding objective. In the upshot, part ten gives a conclusion and the way forward. ©FB Attorneys, op. cit 1JTLS2 Ei) Me ee 1092. The legal concept of the oxygen rule The 2018 amendments have given rise to the birth of the overriding objective which enjoins the courts to ensure that as much as possible provisions of the law are interpreted and applied to achieve just, expeditious, proportional and affordable resolution of disputes.’ In order to further the aforesaid overriding objective, the courts are directed to handle the civil disputes to attain just determination of the proceedings, efficient utilization of resources and_ timely determination of the disputes at a cost affordable by respective parties.’ Parties to the dispute or the advocates are equally duty bound to assist the court to achieve the overriding objective by participating in the processes of the court and complying with its directions and orders.? The forgoing rule is famously known today as the ‘0? or ‘oxygen’ rule. It is derived from the double ‘Os’ in the phrase ‘overriding objectives’ 1° Etymologically, overriding objective is derived from two English words; ‘overriding’ and ‘objective’. The term ‘overriding’ has been defined as ‘taking precedence’ and it is synonymous to ‘major, ‘chief’, ‘main’ and ‘prime’. On the other hand, the word ‘objective’ means what is to be achieved, 7 Section 4 of Act No. 8 of 2018. Available at https:/ /tanzania.mom rsf.org/uploads/tx_lfrogmom/documents/THE_WRITTEN_L AWS__MISCELLANEOUS_AMENDMENTS_NO.3__ACT_2018_SEPTEMBER_11-C- Procedures f-pdf ® Section 4 of Act No. 8 Available at https://tanzania.mom rsf.org/uploads/tx_lfrogmom/documents/THE_WRITTEN_L AWS_MISCELLANEOUS_AMENDMENTS_NO3_ACT_2018_ SEPTEMBER, 11- C- Procedures_f.pdf Ibid Stanley, A. K, The Overriding Objective in Civil Procedure Kenya, (2015), p. 2. Accessed via https://www.academia.edu/10514493/THE_OVERRIDING_OBJECTIVE_IN_CIVIL_P ROCEDURE_KENYA on 23 July, 2020. © Collins Online English Dictionary. Accessed via https:/ /www.collinsdictionary.com/ dictionary/ english /overridin; 110 FERED Ts 2and it is synonymous to ‘purpose’, ‘goal’, ‘aim’ and ‘end’.!2 It is worth noting that a plausible understanding of the oxygen rule can be well grasped by recourse to an interpretive approach rather than by seeking a precise meaning of the rule. The overriding objective is the principle from the rules of civil procedure the purpose of which is for the civil litigation and dispute resolution process to be fair, fast and inexpensive. It is a rule which sets the fabrics of effective case management requiring the court to make sure that as much as possible civil disputes are litigated fairly without delay at proportionate and affordable costs.!3 The court is duty bound to give effect to this overriding objective whenever it is exercising its discretion or interpreting the meaning of any civil procedure rule." It is a yardstick and an aid to the interpretation of rules of procedure with the zeal of minimizing inordinate delays and costs and upgrading fairness in civil disputes resolution. It is intriguing to note that the overriding objective is at the heart of active case management. Active case management is simply the court's mandate to determine how ligation should be conducted without changing in any way the aim of litigation processes.1> 3. Historical overview The need for a speedy justice delivery system is not something novel. The ideal is rooted in antiquity and originally revolved around sacred texts. Mentions of delay in dispensing justice are found in Exodus and Pirkei Avot: “Our Rabbis taught: ... The 2 Ibid ®8 See section 3A of the CPC and AJA Lovells H, Introduction to Civil Proceedings in England and Wales, (2016), p. 3. Available at https:// www. hoganlovells.com/~/media/hogan- lovells/paf/news/2016/3494590v2client-note-introduction-to-civil-proceedings-in- england-approved-versionlwdlib02.pdf?la=en. Accessed on 25 July, 2020 at 9:14 am 15 Sorabji, J, ‘The Road to New Street Station: Fact, Fiction and the Overriding objective.’ European Business Law Review, 2012, Vol. 23,1, p. 78 Available at hitps:/ /www.ucl.ac.uk/judicial-institute/ sites /judicial- institute/files/the_road_to_new_ street_station.pdf. Accessed on 27 August, 2020 at 9:56 am TJTLS 2 El) MERE | 11sword comes into the world, because of justice delayed and justice denied.”'6 This rule was codified for the first time in the English orthodox legal instrument, Magna Carta’, of which clause 40 reads, “To no one will we sell, to no one deny or delay right or justice.” The rule was subsequently endorsed into the featured thresholds of equity by the Courts of Chancery. It is expressed in today’s popular maxim that, “justice delayed is justice denied.” Lord Chancellor of England, Francis Bacon, used the phrase in form of “For fresh justice is the sweetest.”18 The idea was that a sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people. This confidence can be fettered by three factors: First, when people come to believe that inefficiency and delay will drain even a just judgment of its value; second, when people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; lastly, when people come to believe that the law cannot fulfill its primary function of protecting them and their families in their homes, at their work, and on the public streets.! As it will be noted, delay in the delivery of justice had been accompanied by several attributes including high costs and burdened resources which eventually defeated the litigants’ aspirations. The legal reforms which have been undertaken in various legal systems to address the above concern have assumed varying shapes. The English justice reforms which sprung by 1800s are a good starting point. The earlier justice reforms introduced the so called the court’s active case management. Active case ° Pirkei Avot (Chapters of the Fathers), 5:8; See also Exodus 18:22 ¥ Magna Carta, 1215 °8 Montagu, B, The Works of Francis Bakon, Lord Chancellor of England, (1834), p. 107. Retrieved from https:/ / play. google.com books/reader?id=cLfYbGZ- NywC&hl~enéepg~GBS.PR423 on 12 August, 2020 at 12:05 pm + Sorabji, J, English Civil Justice System after the Woolf and Jackson Reforms: A critical Analysis, (2014), Cambridge, Cambridge University Press, p. 12 112 ERE 2) Ts 2management is a long established feature of civil justice system which was originally proposed by the Chancery Commissioners in 1824.9 Noteworthy, the reforms were predicated on ensuring that the justice system was better able to deliver substantive justice by reducing litigation cost and delay.2! The overriding objective principle came to be a centric hallmark of active case management reforms. In 1873, England introduced the Rules of Supreme Court (RSC) following the Judicature Act reforms. The RSC did not embody expressly the overriding objective. Although the rule was tacit, its idea guided the Supreme Court in the implementation of the RSC. This implicit overriding objective was to achieve justice on merits. The rule was endorsed in a series of nineteen century House of Lords and Court of Appeal decisions. In Associated Leisure v. Associated Newspapers, Edmund Davies LJ, described the rule as a predominant policy aim which subordinates all other considerations. The rule came underway to ensure that a claimant succeeds according to the goodness of a cause and not according to irregularities committed by his adversary. This means that a claim would not fail merely on technical or formalistic ground but only according to villainy of a cause. The idea is that the raison d’ etre why courts of law exist is to vindicate the rights and liabilities of parties. This implicit commitment was made explicit in the statutory reforms in other common law jurisdictions such as the United States, Canada 2 Report by the Commissioners into the Practice of the Court of Chancery (No 143), 1826, at 12-20 2 Sorabji (2014), op. cit, p. 104 2 Sorabji (2012), op. cit, p. 80 > Ibid, p.78 % [1970] 2 QB 450, 457 % Collins v. The Vestry of Paddington 1880) LR 5 QBD 368. See at https:/ /www.ucl.ac.uk/judi dicial- institute/files/the_road_to_new_street_station.pdf 1JTLS 2 Le 113and Australia. The 1938 Rules of Civil Procedure for the United States District Courts contained the overriding objective rule which enjoined the courts to apply them in order to speed up the disposal of every civil action at the least possible cost.” Similarly, Australia introduced the same provision into the civil procedure code in 1987. Rule 2 of the South Australia Supreme Court Rules required the court to conduct litigation with a view of promoting the just and efficient determination of such litigation.2” The Rules were not meant to halt a proper cause of a litigant who is genuinely striving to abide with the procedures.” In its revised language of 2006, it directs that the objects of the rules are to establish orderly procedures for the just resolution of civil disputes, to encourage the resolution of civil disputes by agreement between the parties, to avoid all unnecessary delay in the resolution of civil disputes, to promote efficiency in disputes resolution and to minimize the cost for civil ligation to the litigants and to the state.” In the same vein, the rule was contained in the civil procedure code of Ontario in Canada of 1990. It directed the court to interpret the rules to attain the just, expeditious and less costly determination of every civil dispute on merits. The above glaring provisions bear some distinctive features. First, the US code does not contain an explicit commitment to substantive justice. It simply states that the rules should-attain ‘the just, speedy, and inexpensive determination of every action and proceeding.’ However, in Mahler v. Drake?!, the US court stated that just determination meant disposal of suits on merits. 2 Sorabji (2012), op. cit, p. 82 Available at https:// www ucl.ac.uk/ju institute/sites /judicial-institute/files/ the road_to_new_street_station.pdf 2 Loc cit % Loc cit ® Rule 3 of (South Australia) Supreme Court Rules of 2006 ® Rules of Civil Procedure for the Ontario Superior Court of Justice and Court of Appeal of 1990 51 (1967) 43 FRD 1,3 114 EE 2) vets 2Second, rule 2 of the South Australia Supreme Court rules pressed on the commitment to merits of a case subject to the litigant’s compliance with the procedures. In other words, it envelops also the commitment to procedures compliance by litigants. Third, the procedure code of Ontario was crafted totally on a single commitment of determining cases on their merits. These three common laws explicitly overriding objectives and the RSC implicit overriding objective, despite their different language, they each require civil process to be conducted in order to bring about merit-based determinations of individual claims.3? Claims were not to be determined on formal grounds but just, at minimal cost, on their merits rather than on technicalities. These rules set a woven fabric that the commission of procedural blunders by an adverse party would not vitiate the determination of a claim on its merits. The judicature reforms were difficult to implement. The failure of such reforms had given rise to a consensus that favored fundamental reforms in English justice system. Lord Woolf's investigations into the justice landscape yielded proposals for the establishment of what it was being a ‘new theory of justice’ in 199534 The Woolf's reforms report contained several recommendations which were dedicated to ensuring effective access to justice. The report posited that procedures and costs should be proportionate to issues involved; the civil process should deal with cases justly and with reasonable speed; and the use of alternative disputes resolution (ADR) should be encouraged.%5 Consequently, the English Civil Procedure Rules (CPR) came underway in 1996 to replace the RSC. Rule 1 (2) ® Sorabji (2014), op. cit, p. 109 Available at https:/ /www.ucl.ac.uk/judicial- institute /sites judicial-institute/files/the_road_to_new_street_station.pdf ® Loc cit 4 Woolf, H, Access to Justice: Interim Report, Lord Chancellor's Department, 1995 % Moloney, s, “A New Approach to Civil Litigation? The Implementation of the Woolf Reforms ‘and Judicial Case Management.” Judicial Studies Institute Journal, Vol. 2, 1, 2001, pp. 99 - 102 1JTLS 2 Eo) EE 15directs the courts to deal with cases justly, expeditiously and fairly at the least possible cost and in a way which is proportionate to the amount of money involved.%* The problem that undermined the Woolf reforms stemmed from its interpretation. Two conflicting approaches were adopted; a ‘traditional approach’ and an approach which advocated for ‘a new theory of justice’. According to the traditionalist interpretation, the rule was only its predecessors. It was only an explicit version of the RSC’s overriding objective.” The basis for this position is found in Millet LJ’s words in the pre- CPR case of Mortgage Corporation v. Sandoes* that substantive justice is a predominant aim while the need to reduce cost and delay are its subordinates. The second approach which came to be known as Copernican or Kuhnian interpretation posited that the rule was intended to achieve something more than the attainment of determining disputes on merits.® The Woolf's reforms were placed in a spiral ring of skepticism. The reform succeeded to introduce the new theory of justice but it failed to give the guidance for its implementation. In 2009, Lord Jackson came up with recommendations for effective implementation of the Woolf's reforms.!? The Jackson reforms maintained that the Woolf's reforms were confined to substantive justice. Instead of focusing on the immediate litigants with a single commitment to attain substantive, litigations were now to be conducted to achieve individual claims economically, efficiently and at proportionate cost by considering the right of access to justice by other litigants who Procedure Rules, 1996 ¥ Sorabji (2014), op. cit, p. 131 Available at https://www.ucl.ac.uk/ judicial institute/sites/judi institute/files/the_road_to_new_street_station.pdf 9 [1996] EWCA Civ 1039 » Sorabji (2012), loc. cit 4 Jackson Report, 2009 116) WTLS2are queuing and hanging out into the court's corridors.4! Securing substantive justice was no longer to be the justice system’s aim. It also endorsed commitment to procedural justice in order to do two things: to change the focus from each individual claim to a global assessment of the right of other court users to have effective access to justice; and second, to just for denying wholly or partially the aspiration of attaining substantive justice in any case where to do so would be detrimental to the ability of other court users to secure a fair opportunity to seek substantive justice.8 4, The oxygen principle in Tanzania: Reflection on legal reforms and judicial rhetorics 4.1 Caseloads and delayed justice in civil courts: Early measures Delay in the delivery of civil justice has been a public outcry for quite a long time in Tanzania. It is argued that delayed justice causes many social and economic disruptions, and, therefore, the measure of a good legal system is the time to conclude litigation.“ Between 1974 and 1980, the average time of the pendency of cases in the Resident Magistrates Courts at Dar Es salaam was between two and seven years. Similarly, the percentage of cases pending in the High Court was 19% in 1977, and it rose steadily to 73% in 1980.4 This caused a lot of inconvenience to the litigants. For instance, the plaintiff in 4 Lord Dyson, The Jacksons and Civil Justice. University of New South Wales Lecture delivered in September 2014, Sydney, 2014, p.14 © Ibid, p.14 © Sorabji (2012), op cit, p. 88 Available at https://www.ucl.ac.uk/judicial- institute/sites judicial-institute/files/the_road_to_new_street_station.pdf 4 Law Reform Commission of Tanzania, Report on Delays in Disposal of Civil Suits, No. 1 of 1986, para. 1 Loc cit # Loc cit TJTLS 2 Ed EE | 17Mayala Gweso v. Haji S.A, Karim /to/a Karim Transport” wrote a letter to the Registrar of the High Court complaining that his case (which had so far taken three years) had dragged on for a long time. He said that as a result he had suffered many consequences including failure to continue with his business because the amount which was the subject matter of the suit was his capital; and because of his inability to continue with his business, his family life was disrupted because of the economic hardship it was going through. As pointed out in Msumi Report of 19864, delays in the conclusion of civil cases had been caused by several reasons including unnecessary pre- trial and in-trial adjournments granted to advocates on flimsy grounds; pressure of work on the court and non appearance of parties to the suit. The most common reason for delays since 1970 has been procedural technicalities. Tanzania courts had long been known for striking out and turning down cases for minor omissions like mistakes in the name of Judges, wrong or no citation of a provision of the law, mistakes in decrees, small typos errors in names of parties, slight defect in jurat, missing pages of non-critical documents in records, numbering mistakes in records, mistake by registrar in certificate of delay and the like.4? Some decisions during this span reflect what can be referred to as Draconian measures for minor errors committed by advocates. For instance, there-could be no excuse to a counsel who delayed applying for a review of the court's decision.* Failure to show the name of an attesting officer in the jurat equally warranted the application to be * Civil Case No. 218 of 1979 , High Court of Tanzania at Dar Es Salaam (Unreported) “ Law Reform Commission of Tanzania, op. cit, para II ‘© FB Attorneys (2019). Inconsistent application of overriding principles at Court of Appeal. Accessed via https:/ / fbattorneys.co.tz/inconsistent-application-of-overriding- principles-at-court-of-appeal/. “VIP Engineering and Marketing V. Said Salim Bakhresa Ltd Civil Application No. 52 of 1998, Court of Appeal of Tanzania at Dar es salaam (Unreported) BR The Tanzania Lawyer Journo! [a0struck out.5! Similarly, wrong or non citation of the proper provisions of the law was being a fatal blunder and rendered the applications incompetent.%2 Such mistakes, which are merely lapsus calami, were considered by the courts to be exacerbating blunders to justify striking out of a case. Equally, counsels were much more obsessed with the preliminary objections to the extent that clerks would ask why the same had not been filed. It was an era of POs echoed by a very landmark case of Mukisa Biscuit Manufacturing Co Ltd. v. West End distributors Ltd.54 This practice not only caused inordinate delay of dispensation of justice but also resulted in huge backlogs of cases. The appeals or applications would invariably be refiled after fighting out the extension of time applications and increasing costs, wasting the Court's and parties invaluable resources and precious time.55 Concerted efforts to address the above concern in Tanzania started from the mid of 1980. Such efforts took different shapes but with the view of trumping up access to justice and mitigating costs for litigation. Tanzania enacted the Ward Tribunals Act* in 1985. Among other things, this law vested limited judicial power into ward tribunals, emphasizing the need to use mediation as much as possible in resolving disputes brought before them.5” However, the effect of this law was said to be minimal in addressing the stance of caseloads. In 1986, the Law Reform Commission chaired by Hon Mr. Justice Hamis » Felix Francis Mkosamali v. Jamal A.Tamim, Civil Application No 4 of 2012 ® Kinondoni Municipal Council v. Alphonce Buhatwa Civil Application No. 150 of 2007, Court of Appeal of Tanzania at Dar es salam (unreported) 3 ibid 5 (1969) EA 696 © FB Attorneys, op. cit % Act No. 7 of 1985 57 Mashamba, J.C, Alternative Dispute Resolution in Tanzania. Law and Practice. Mkuki na Nyota Publishers Ltd: Dar Es salam, 2013, p. 41 8 Loc cit 1JTLS 2 Lo MR 119Msumi released its report, which contained proposals for the improvement of disposal of civil suits. As it has been noted, delay in conducting civil litigations was an epicenter which drew attention of the public. The commission recommended for specialization of courts to address pressure of work on the court, which was among the factors for delayed justice. This recommendation could not be effected due to scarcity of judicial personnel that Tanzania experienced after independence. The commission pointed out also that it was necessary to introduce pre-trial conferences. There were instances where adjournments were granted on the ground that parties were seeking to settle out of court only to find that they turned back to court for hearing. Procedure was to be instituted in which those cases which might be settled out of court were screened from the minimizing the possibility of adjournments on this ground.* It was further stated that there was need to tighten up the provisions of the Civil Procedure Code relating to adjournments. For example, it was proposed that no adjournment should be granted at the request of a party, except where the circumstances would be beyond the control of the party. That the advocate of the party was engaged in another court was no longer to be a ground for adjournment. Consequently, the Government Notice Number 508 was gazetted in 1991 to severely restrict grant of adjournments.® This was soon followed by the Individual Calendar system whereby a case assigned to a particular Judge had to be dealt with by that Judge to its finality to reinforce accountability and reduce confusion and misplacement of case files. ® Law Reform Commission, op. cit, para. Il Ibid ®\ Loc cit @ Loc cit ®Mashamba, op cit, p. 41 Op cit 120 FERRED Do) Tis 2Profoundly, alternative, dispute resolution (ADR) was introduced to the Civil Procedure Code in 1994 because of Mroso Committee’s recommendations. The Government Notice Number 442 amended Order IV, V and VIII and introduced Order VIII A, VIIIB and VIII C.6 Order VIII A, VIII B and VIII C have been deleted and their provisions are contained under Order VIII A, B and C in lieu thereof. Although the Mroso Committee did not recommend the incorporation of ADR in the civil justice system, it was decided that in order to give ADR some sort of legal authenticity it should be incorporated in the Civil Procedure Code.‘ One of the major legal effects of the aforementioned amendments to the CPC is the mandatory requirement for civil cases to be first referred to mediation before full trial is conducted. Furthermore, commercial, labour and land courts and tribunals have been established in order to address among other things backlog of civil cases in ordinary courts. In 1999, the High Court (Commercial Division) was established with envision that this special court would effectively, efficiently and speedily resolve commercial disputes that were to emerge in the wake of expanded business and commercial activities.‘ Initially, rule 4 of the High Court (Commercial Division) Procedure Rules of 2012° directed the court to achieve substantive justice in every action. Rule 4 was deleted and replaced by a new provision which requires the court to give effect to the overriding objective when © Civil Procedure Code (Amendment of the First Schedule) Rules, 1994 (GN No. 442 of 1994) See the Civil Procedure Code (Amendment of the First Schedule) Rules, 2019 (GN No. 381 of 2019) © Mashamba, op. cit, p. 44 «© Rule 5A of the High Court Registries Rules, 1984 (GN No. 141 of 1999 which was later repealed and replaced by GN No. 96 of 2005; See also Judiciary of Tanzania, High Court of Tanzania (Commercial Division), p. 5. Available at file Users/Pc/ AppData/ Local /Temp /Historical-Background-of-the- Co ‘of-Tanzania pdf, Accessed on 14 August, 2020 at 8:23 am © GN No. 250 of 2012 1JTLS 2 Ld MER ee 21interpreting and applying the rules.” With the similar vision, the ward Tribunal, District Land and Housing Tribunal and the High Court (Land Division) were established in 2002 through the Land Disputes Courts Act’! to deal with land disputes. Vide the Labour Institutions Act?2, the Commission for Mediation and Arbitration (CMA), Essential Services Committee, Wage Board and the High Court (Labour Division) were established in the same vein to speed up resolution of civil disputes which arose in the employment sector. Rule 3 of the Labour Court Rules” specifically emphasizes that the labour court is a court of equity and mediation, henceforth it must strive to amicably resolve labour disputes through ADR. The foregoing reforms were deliberately undertaken to speed up access to justice with minimal costs. 4.2 Constitutional reforms: The oxygen principle The foregoing measures did not bring about the intended outcome. A new era came when the overriding objective was introduced in the Constitution via the 13" amendment of the Constitution.”4 The hue and cry regarding over reliance on procedural technicalities found its expression under Article 107 A (2) (e) which was inserted wherein. Couched in mandatory terms, it requires the Court when delivering decisions in matters of civil and criminal nature not to be tied up with undue technical provisions. 75 ° Although the provision was intended to militate against over reliance on procedural technicalities in favor of substantive justice, the interpretation and application of the said provision 7 Rule 4 of the High Court (Commercial Division) Procedure (Amendment) Rules, 2019. GN No. 107 of 2019 7 Act No. 2 of 2002 which is now Cap 216 R.E 2019 7 Section 12, 29, 34 and 50 [Cap 300 R.E 2019] GN No. 106 of 2007 % Act No. 3 of 2000 * The Constitution of the United Republic of Tanzania [Cap 2 R-E 2002] BPA The Tanzania Lawyer Journal (SOURISof the constitution had implicated a lot of misnomers in the courts of records. This can be well gleaned by examining the courts’ response to the amendments. 4.2.1 Judicial response to the oxygen principle under the Constitution Article 107 A (2) (e) is not free from ambiguity. There have been divergent opinions on how the provision should be interpreted and it has not very much help solve the problem it purported to address.” In CRDB Bank Tanzania Limited v. TTCL and Another”, the court endorsed the binding nature of Article 107A (2) (e) in that the provision directs that courts’ doors must always be left open for all litigants to have access to justice and procedural technicalities should not be tape wires to deny them entrance. This view was reiterated in D. T. Dobie (Tanzania) Ltd vs. Phantom Modern Transport (1985) Ltd’8 where the court observed; “, too, these judicial pronouncements have been given constitutional expression through the Thirteenth Amendment vide Act No.3 of 2000.... The principle under sub-article 2 are expressed in imperative terms and are therefore binding on the Courts.” With the same spirit, the court in Attorney General and Another vs. N.I. N Munuo Ng‘uni, warned that procedural technicalities should not thwart justice, instead they are to be used as handmaidens of justice. ”° % Lugaziya, MJ, “Application of Legal Technicalities and Its Consequences on the Administration of Justice in Tanzania”, p. 8. Accessed via https:/ / www.academia.edu/35073954/ APPLICATION_OF_LEGAL_TECHNICALITIE S_AND_ITS CONSEQUENCES_ON_THE_ADMINISTRATION_OF JUSTICE_IN_TA NZANIA_1 7 Civil Appeal No. 63 of 2003, Court of Appeal of Tanzania at Dar Es Salaam (Unreported) 8 Civil Application No. 141 ® Civil Application No. 45 of 1998 See also The National Housing Corporation vs. Etienne’s Hotel, Civil Application No.10 of 2005,Court of Appeal of Tanzania at Dar es 17S 2 Ll Me 123As individuals and ordinary men, Judges have expressed their concerns about these legal technicalities and their negative impact on the delivery of justice. Frequently, Mr. Justice Chande Othman, the then Chief Justice, spoke with firm convictions about legal technicalities. In his keynote speech to TLS fraternity at the Annual General Meeting in February 2012, he pointed his long finger against procedural technicalities by emphasizing that it is high time to do away with onerous and conservative procedures by giving Article 107A (2) (e) its legal forces! However, the foregoing interpretation has been refuted in some decisions. In the case of Zuberi Mussa vs. Shinyanga Municipal Council, the court stated that the provision should be taken as a guideline for court action and not as an iron-clad rule which constrains the Courts from taking cognizance of salutary rules of procedure which when properly applied, helps to enhance the quality of orderly justice delivered.*? With a diverse opinion, Hon Fauz has observed that the phrase “in accordance with the law” under Article 107 A (2) is a reminder to the Courts that the law, procedural and substantive, should not be Salaam, Unreported, by Munuo, J.A Available at https:/ /tanzliiorg/tz/judgment/ high-court-tanzania/2002/2-1. Accessed on 27, August 2020 “Lugaziya, op. cit, p. 10 5 Andrea, BM, Dismissal of cases on Legal technicalities Versus Substantive Justice: A critical analysis of the Court of Appeal of Tanzania Decisions. A Research Report Presented to School of Law, St. Augustine University, (2014), p. 21. Available at hitps:/ / www.scribd.com/ document/332088282/Dismisal-of-Cases-on-Legal- Technicalitie-pdf. Accessed on 27 August, 2020 ® Civil Application No. 100 of 2004, Court of Appeal of Tanzania at Mwanza (Unreported). See also Ludovick Pastory v. William Bwabo, Misc Land Case Application No. 23 of 2017, High Court of Tanzania at Bukoba (Unreported) Available at https:/ /tanzlii.org/tz/judgment/high-court- tanzania/2020/277/MISC. %20LAND % 20CASE % 20 PPLICATION % 20NO.%2023%20 (OF %202017%20- %20LUDOVICK%20P ASTORY %20VS%20WILLIAM%20BWABO%20NEW pdf 124 ERR Dd Tus 2ignored. This view is partly subscribed to. Procedure code provides an architecture for dispensing orderly justice. It is the means by which substantive law can be enforced. The conundrum is how this provision should be interpreted to attain the intended object. It could not have been the intention of parliament, and it is against the principles of constitutional interpretation, that the constitution should be read as subjecting itself to any other law.* Such interpretation would be absurd. As pointed out by Rugaziya*’, the provision was intended to militate against reliance on technicalities and it does not make good sense, legal or otherwise, that the Constitution should be interpreted to direct reliance on those very technicalities it was intended to address. Applying procedural rules “in accordance with the law” means that they should operate in such a way as to upgrade, not as a red tape to, access to justice. The author wishes to precisely state that, until present, the Court of Appeal has not given a clear guidance on the proper interpretation of the aforesaid provision. Recently, the Arbitration Act’ has been enacted to repeal and replace the old one. This law which has amended the CPC makes a voluntary ADR (ADR out of court) a mandatory procedure in civil disputes by requiring a party to take bona fide steps to resolve the dispute through ADR before filing a suit in court.” Bona fide steps include considering whether the dispute could be resolved by a process other than a court action, including reconciliation, negotiation, mediation, arbitration, warning, and diversion.** Although this law is not ® Fauz, T. “Technicalities in the Administration of Justice: A Critical Appraisal” Paper Delivered at the Half Annual General Meeting of the Tanganyika Law Society at Arusha, September, 2015, p.8 ™ Rugaziya, op. cit, p. 8 © Loc cit % Act No. 2 of 2020 © Section 96 of Arbitration Act ® Loc cit 1JTLS?2 Lo) Dee 125yet operational, it is another milestone towards improving the civil justice system. The foregoing reforms, in different ways, have made the wheels of justice turn faster than it had ever been. However, the reforms have not addressed fully the stance they sought to. This prompted the legislature to enact expressly the overriding objective in the Civil Procedure Code in order to give the courts and parties a clear message that ‘the just, expeditious, proportionate and affordable resolution’ of disputes*® are the ends to be achieved whenever the courts interpret and apply procedural rules. 5. Applicability of the oxygen principle in the High Court and Court of Appeal: A shield or a Sword? Ever since the oxygen principle became operational, counsels in both sides have been elegantly eager to implore the court to apply it either as a shield or a sword. This section examines the application of the rule in the High Court and Court of Appeal. The analysis is presented under the headings of various procedural anomalies and how the courts have reacted. 5.1 Jurisdictional matters The case of Yakobo Magoiga Gichere v. Peninah Yusuph® is a good starting point. It is in this case that the overriding objective was put to test for the first on October 10 2018, just 3 weeks after the effective date of the amendments. The Court of Appeal at Mwanza was called upon to decide on what was considered by the appellant to be unbearable blatancy and contravention of section 4 of the Ward Tribunals Act, which stipulates; © Section 3 and 3B of the CPC and AJA ® Civil Appeal No. 55 of 2017, the Court of Appeal of Tanzania at Mwanza (Unreported) BP) the Tanzania Lawyer Journal SOUURNUTED“4 (1) Every Tribunal shall consist of: (a) not less than 4 nor over 8 other members elected by the Ward Committee... (b) a Chairman of the Tribunal appointed by the appropriate authority from among the members elected under paragraph (a).” 1 The Appellant's averment was that the Ward Tribunal lacked jurisdiction because, on several occasions, neither the Chairman nor any member appointed to preside, presided over the proceedings of the Tribunal. Thus, the appellant implored the court to quash the Ward Tribunal proceedings for want of composition. Expunging the call, Juma, C. J, Mwarija, J. A and Ndika, J. A, observed at pages 13-15 of the judgment: “With the principle of Overriding Objective brought by the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2018 [ACT No. 8 of 2018] which now requires the courts to deal with cases justly, and to have regard to substantive justice...... Failure to identify the member who presided over the proceedings of the Ward Tribunal when the Chairman was absent, did not occasion any failure of justice to the appellant... The final order of the Court is that this Appeal is dismissed in its entirety.” This case is interestingly confusing because the attack on the composition jurisdiction was mounted by Mr. Gichere, in whose favor the tribunal ruled. But this may be because he lost in the appeal preferred by the respondent to the High Court % Cap 206 RE 2002 Available at http:/ /lands.go.tz/uploads/ documents/sw/1456496063- The%20Ward %20Tribunals%20Act. %20Cap %20206.pdf 5 See at page 13 - 25 of Gichere case. Also available at https:/ / www.thecitizen.co.tz/ oped/ 1840568-5438122-25bqhm/ index.htm] 1JTLS 2 Lo) ee 127Land Division. In Mariam Samburo v. Masoud Mohamed Joshi and Others®, the Court of Appeal was reluctant to apply the oxygen principle on the ground that the overriding objective does not require the Court to disregard jurisdictional matters which go to the root of the suit. Although the two cases involve different facts, the fact that they address the issue of jurisdiction, it is not clear what amount to “procedural irregularities which may occasion a failure of justice” and “jurisdictional matters which go to the root of the suit”. 5.2 Irregularities in the lodgment of appeals In Gasper Peter v. Mtwara Urban Water Supply Authority (MTUWASA)™, the Court of Appeal was called upon to invoke the oxygen principle to save an appeal which had been challenged for having missed the pleadings and the record of proceedings from the CMA. The counsel for the respondent hastened to aver that such omission contravened the provisions of Rule 96 (1) and (2) of the Court of Appeal Rules®> rendering the appeal incompetent. Juma, C. J, Mwarija, J. A, and Wambali, J. A, observed that the missing documents from the particular circumstances was not a fatal irregularity considering the fact that the issues raised could be substantively determined without recourse to those documents. It was further observed that the parties were not at issue as regards the missing documents, the contents of which were extensively analysed and acted upon by the CMA in its decision. The consideration was that if the court struck out the appeal, the appellant would invariably be required to rectify an error and file a fresh appeal. Consequently, this would lead to increase in costs partisan to litigation, as well as wastage of judicial time and resources-the mischief which the oxygen came to thwart. The same line of ® Civil Appeal No. 109 of 2016, Court of Appeal of Tanzania at Dar Es salaam (Unreported) % Civil Appeal No. 35 of 2017, Court of Appeal of Tanzania at Mtwara (Unreported) %® GN No. 368 of 2009 BPA the Tanzania Lawyer Journal [200reasoning was adopted in, Tanzania Revenue Authority v. ARMZ%® where in this case, the Court (Mussa, J. A, Mugasha, J. A and Lila, J. A) ruled that whilst the Tribunal submissions were missing in the records of Appeal, the Appellant (TRA), be given time to amend its record of appeal and the appeal was not struck out. In the same vein, the Court of Appeal decided not to strike out the appeal because the anomaly in the certificate of delay was caused by the Registrar and the blame could not be put on the counsel's shoulder (although he had a duty to ensure its correctness). Instead, the appellant was permitted to rectify the shortfall by obtaining a properly drawn certificate of delay.” However, in SGS Societe Generale De Surveillance SA and Another v. VIP Engineering & Marketing Ltd and Another®’, the anomaly was of different nature and the court was reluctant to be generous. Non endorsement of the Memorandum of Appeal by the Registrar or a Court Official as mandatorily required by Rule 93 (3) of the Court of Appeal Rules was being a fatal irregularity which rendered the appeal incompetent. The court stated at page 23; “We also find that the overriding objective principle does not and cannot apply in this case since its introduction in the Written Laws (Miscellaneous Amendments) (No. 3) Acq [sic] 2017 (Act No. 8 of 2017) was not meant to enable - parties to circumvent the mandatory rules of the Court or to turn blind to the mandatory provisions of the procedural law which go to the foundation of the case.” % Civil Appeal No. 78 of 2018, Court of Appeal of Tanzania at Dar es salam. (Unreported) ® Mediteranean Shipping v. Afritex Limited, Court Of Appeal of Tanzania at Dar Es Salaam, p. 6; See also Mohamed Ali Mohamed v. Ajuza Shabani Mzee (Administrarix of the Late Fatuma Kibwana), Court of Appeal of Tanzania at Dar Es salaam ® Civil Appeal No. 124 of 2017, the Court of Appeal of Tanzania at Dar es salaam (Unreported) 1JTLS 2 Lo) Me 129