Dismisal_of_Cases_on_Legal_Technicalitie.pdf

ST AUGUSTINE UNIVERSITY OF TANZANIA

School of Law

Dismissal of cases on Legal technicalities Versus Substantive Justice; A critical analysis of the Court of Appeal of Tanzania Decisions

A Research Report submitted in Partial fulfillment of the requirements for the award of the degree of Bachelor of Laws of St. Augustine University of Tanzania

Andrea Beria M June 2014

CERTIFICATION The underlined certifies that she has read and hereby recommend for acceptance by St. Augustine University of Tanzania, a dissertation titled: Dismissal of cases on Legal technicalities Versus Substantive Justice; a critical analysis of the Court of Appeal of Tanzania Decisions, in partial fulfillment of the requirements for the degree of Bachelor of Laws (LL.B) Madam Eliaika Michael (Supervisor): Signature ………………….…Date ……………….……...

i

DECLARATION I, Andrea Beria M. hereby declare that this dissertation is my own original work and that it has not been presented and will not be presented to any other University or Institution for similar or any other degree award. Signature …………………………….…………Date………..…………………………………..

ii

COPYRIGHT This dissertation is a copyright material protected under the Berne Convention, The Copyright and Neighboring Rights Act, Cap 218 RE 2002 and other International and national laws. It may not be reproduced by any means, in full or in part, except for extracts under fair use, for scholarly work only, without the written permission of the Depute Vice Chancellor for Academic Affairs of St. Augustine University, on behalf of both the author and the University.

iii

ACKNOWLEDGEMENTS First and foremost I would like to thank God Almighty through his son Jesus Christ who helped me to accomplish this hard and important task in my legal education. Without him I could do nothing, let all the glory, honor and praises be unto him forever. Also I would like to thank my supervisor Madam Eliaika Michael for her dedication, guidance and tireless effort to advice me throughout this work. She was always there during many difficult times. Indeed, it was a privilege to work with her. Much thanks to my mentor and a friend Hon. Lugano Rachel Kasebele senior Resident Magistrate at the Resident Magistrate Court of Kilimanjaro at Moshi for her assistance, guidance and mentorship during the whole period of my field attachment and in the process of collecting data for this research Furthermore, I would like to appreciate the work done by my Mother Asha Said Kibiriti for her comfort during my difficult times, my beloved Pastor Valentine Mbuke for his spiritual guidance, all my relatives, my friends at campus Huruma Emmanuel, Albertina Marco, Hossianna Msokwa, Martha Masalu, Kipfum Peter, Kinango Joseph, Kitaly Wilhad, Kitundu Isaya, Mashauri Happy and Kisusi Joseph for their love, mentorship and guidance during the whole process of this study.

iv

DEDICATION The very work is dedicated to my beloved mother Asha Saidi Msofe.

v 5

LIST OF CASES Attorney General and Mathias Ndyuki & 15 others Court of Appeal of Tanzania at Dar es salaam, Civil Appeal No. 32 of 2006 (Unreported) Chief Direko Lesapo vs. Northwest Agricultural bank Case CCT 23\99 CRDB Bank Tanzania Limited v TTCL and Another Civil Appeal No.63 of 2003 CAT at Dares-salaam (Unreported) Githere v Kimungu (1976-1985) EA 101 Joseph Kivuyo and others vs. Regional Police Commander Arusha and another (1973) HC Arusha (Unreported) Kasirye Byaruhanga &Co Advocates Vs Uganda Development Bank (Civil Application No.2/97). Kenya Commercial Bank Limited v Kenya Planters Co-operative Union [2010] KLR Utex Industries Ltd. Vs Attorney General, Civil Application No.52/95 (Unreported) VIP Engineering and Marketing V. Said Salim Bakhresa Ltd Civil Application No. 52 of 1998 CAT at Dar-es-salaam (Unreported) Yokwe Gwaku & 4 Others V. National Agricultural & Food Corporation & another Civil Application No.67 of 2005, Court of Appeal of Tanzania at Dar es salaam, (Unreported) Zakaria Japhet@ Jumanne and Others v Republic Criminal Appeal No.37 of 2003, CAT at Arusha (Unreported) vi 6

LIST OF STATUTES The Constitution of the United Republic of Tanzania 1977 as amended from time to time [Cap 2 RE 2002] The Appellate Jurisdiction Act No. 15 of 1979 [Cap 141 RE 2002] The Civil Procedure Code 1966 [Cap 33 RE 2002] The Court of Appeal Rules, 2009

vii 7

LIST OF ABBREVIATIONS CAT-

Court of Appeal of Tanzania

CAP-

Chapter

EACJ-

East African Court of Justice

EA-

East African Law Report

GN-

Government Notice

HCT-

High Court of Tanzania

Ibid-

Ibidem (the same)

J-

Judge

JA-

Justice of Appeal

Op.cit-

Opera citato

RE-

Revised Edition

TLR-

Tanzania Law Report

TLS-

Tanganyika Law Society

LHRC-

Legal and Human Rights Center

LRC-

The Law Reforms Commission of Tanzania

URT-

United Republic of Tanzania

V-

Versus

viii 8

TABLE OF CONTENTS Certification………………………………………………………………………………………..i Declaration ………………………………………………………………………………………..ii Statement of Copyright………………………………………………………………………...…iii Acknowledgements …………………………………………………………………………...….iv Dedication ………………………………………………………………………………………...v List of Cases …………………………………………………………………………………...…vi List of Statutes………………………………………………………………………………..….vii List of Abbreviations………………………………………………………………………...….viii Table of Contents………………………………………………………………………………....ix Abstract …………………………………………………………………………….…………..xii CHAPTER ONE General Introduction 1.0 Introduction………………………………………………………………………………...…1 1.1 Background to the problem……………………………………..…………………………….1 1.2 Statement of the problem…………………………..………………………………………….3 1.3 Objectives of the Study………………………………………………………...……………...3 ix

9

1.3.1 General objectives……………………………………………………………………………3 1.3.2 Specific Objective…………………………………………………………………..……….3 1.4 Research Hypothesis…………………………………………………………………...….….4 1.5 Scope of the Study……………………………………………………………………...……..4 1.6 Significance of the Study………………………………………………………………...…....4 1.7 Research Methodology………………………………………………….,…………...…..…...5 1.7.1 Type of Research………………………………………….……………………….....……..5 1.7.2 Sampling Design…………………………………………………………………………….5 1.7.3 Data collection………………………………………………………………………………5 CHAPTER TWO Conceptual and Theoretical Framework 2.0 Introduction……………………………………………………………………………………6 2.1 Definition and historical development of Justice…………………………………………...…6 2.2 Law and Justice………………………………………………………………………………..7 2.3 Procedural laws and Technicalities……………………………………………………….......8 2.4 Access to Justice and Technicalities…………………………………………………………..9 2.5 Theatrical Analysis of Justice………………………………………………………………..10 2.6 Practical Analysis…………………………………………………………………………….11 x

10

2.6.1 The Court of Appeal of Tanzania and administration of Justice………………………….14 2.7 The Legal Framework………………………………………………………………………..12 2.8 Comparative Study…………………………………………………………………………...14 2.8.1 The Court of Appeal of Kenya……………………………………………………………..14 2.8.2 The Supreme court of Uganda……………………………………………………………..15 CHAPTER THREE Research Findings on Dismissal of Cases on Legal Technicalities by the Court Of Appeal of Tanzania 3.0 Introduction…………………………………………………………………………………..17 3.1 Findings……………………………………………………………………………………...17 3.2 Sample of Cases dismissed on Legal technicalities by The Court of Appeal of Tanzania…..22 3.3 Discussion of findings………………………………………………………………………..25 CHAPTER FOUR Conclusion and Recommendations 4.0 Introduction………………………………………………………………………………….27 4.1 Conclusion…………………………………………...………………………………………27 4.2 Recommendations……………………………………………………………………………28 Bibliography……………………………………………………………………………………..30 xi 11

ABSTRACT This study examines the Dismissal of cases on Legal technicalities Versus Substantive Justice and critically analyzes Decisions of the Court of Appeal of Tanzania. The main goal of the researcher is to examine the problem of dismissal of cases on legal technicalities by the court of Appeal of Tanzania, its impacts on substantive justice and a way forward thereto. Courts of laws are said to be the guardians of rights of individuals and in administering justice in civil and criminal matters courts of law should not be bound by legal technicalities as per Article 107A (2) (e) of the Constitution of United Republic of Tanzania 1977 as amended from time to time. Despite the provision of Article 107A (2) (e) of the Constitution of United Republic of Tanzania 1977 as amended from time to time dismissal of cases on legal technicalities still continue to be an unattended problem. Here under this study I will examine the main causes of legal technicalities, its effects on substantive justice and the proposed durable solution there to. According to the data collected from both field and library the researcher finds out that the problem of dismissal of cases on legal technicalities does exist. The problem brought about a number of immeasurable impacts on rights of individuals in terms of costs, time, resources and mental disturbance among litigants to mention few. Thus this study presents a timely opportunity for the Court of Appeal to move towards a better and more effective role by addressing the shortcomings experienced so far. The solution to this problem is still in the hands of the judiciary and its lawyers who seem to embrace this practice at the expense of justice.

12

CHAPTER ONE GENERAL INTRODUCTION 1.0 Introduction The image of justice is that of a heartless and a blind folded lady standing with a scale of justice on one hand and a sword of retribution on the other. She will thus not hesitate to use the sword if need be1. The term justice denotes fair and proper administration of law2. It is a moral ideal that the law seeks to uphold in the protection of rights and punishment of wrongs3. Justice means fairness, equality or equity. Substantive justice means justice fairly administered according to the rules of substantive, regardless of any procedural error not affecting the litigant’s substantive right ; a fair trial on merit4. The term Legal technicality is a casual or colloquial phrase referring to a technical aspect of law. The phrase is not a term of art in law, it has no exact meaning nor does it have a legal definition. It implies that the strict adherence to the letters of the law have prevented the spirit of law from being enforced5.

1

CHENGE A. J (1994), The Role of Tanzania Bar, An Address of Attorney General of Tanzania at the 10th Amission Ceremony of Advocates at Dar-es esalaam on 15th December 1994. 2 GARNER, B A (2004), Black’s Law Dictionary, 8th Ed, West Publishing Company, USA, at p.881. 3 ELIZABETH, A M (2001), Oxford Dictionary of law, Oxford University Press, London, at p 275. 4 Ib id. 5 See US v Shipp 214 US 386 1909.

13

1.1Background of the Problem Before 1977 Tanzania was a member of the former East African Community which collapsed in the year 1977, it also enjoys the service of the East African Court of Appeal. This court provides the appellate service to all the partner states of the community namely Kenya, Uganda and Tanzania. In most cases this court applied and followed principles that were applied by courts in England and Wales. The collapse of the East African Community in 1977 was so sudden and it caught everyone by surprise. This collapse ended the service of the East African Court of Appeal to the member states6. By the time Tanzania was not prepared at all to replace the services of the East African Court of Appeal in her territory. In 1979 Tanzania used the loop holes in the Act establishing the East African Court of Appeal which stated that all High court Judges of the partner states could sit in the Court of Appeal provided there was at least one substantive member of the court present to establish The Court of Appeal of Tanzania7. Mr. Justice Abdullah Mustapha who used to constitute the East African Court of Appeal becomes one of the founder members of Court of Appeal of Tanzania8. The court has appellate jurisdiction to hear and determine appeals and applications from the high court of Tanzania as well as reviews and revision. Currently the court is manned with 15 justices of Appeal. The Court of Appeal is established Under Article 117 of the Constitution of United Republic of Tanzania discharges its judicial duties in accordance with the provisions of The Tanzania Court of Appeal Rules, 2009 and the Appellate Jurisdiction Act.9

6

PETER, C.P et al (ed), ( 2007), Law and Justice in Tanzania, Quarter of a Century of the Court of Appeal, Mkuki na Nyota Publishers, Dar-es-salaam, atv p.81. 7 The CAT was established officially on in 15th August 1979. 8 CYRIACUS, K (et al), Justice Watch Annual Report by The Legal and Human Rights Center, 2008-9 at p. 43. 9 Cap 141 RE 2002 Also See http://www.judiciary.go.tz/templates/system/css/system.css.

14

By the year 2000 the Constitution of the United Republic of Tanzania was amendment by Act No. 3 of 2000 and Article 107A was inserted requiring courts in delivering decisions in matters of civil and criminal nature in accordance with the laws, to dispense justice without being tied up with undue technical provisions which may obstruct dispensation of justice10. It is from this Article the authority to do away with legal technicalities is drawn and courts are advised to go to the merits of the case and not to resort in technicalities in delivering of substantive justice.

1.2 Statement of the Problem Despite of the provision of Article 107A (e) of The Constitution11 and rule 2 of the Court of Appeal Rules12 which prohibit the Court of Appeal of Tanzania from being tied up by legal technicalities in delivering justice, this is not the case in practice where the Court of Appeal of Tanzania continue to dismiss cases on legal technicalities. It is true that dismissal of cases by the Court of Appeal of Tanzania on technicalities had, most of the time affected substantive justice. Legal technicalities affect access to justice and, whenever the matter is disposed of technically, the substance of the case is no longer at issue; hence the Court embarks on irrelevant matters which do no assist the litigant anyhow. Therefore this study reviews the Court of Appeal of Tanzanian decisions and makes a critical analysis on the impact of dismissal of cases on legal technicalities on substantive justice.

10

See Article 107A (2) (e) of the Constitution of United Republic of Tanzania 1977. The Constitution of United Republic of Tanzania 1977. 12 The Court of Appeal Rules of 2009 were signed by the Chief Justice and were gazetted in November, 2009 through Government Notice (GN). No. 368 of 2009 and came into force in February, 2010 through Government Notice (GN) No. 36 of 2010 Gazetted in January, 2010. 11

15

1.3 Objectives of the Study 1.3.1

General objectives

The general objective of the study is to examine the impacts of dismissal of cases on legal technicalities by The Court of Appeal of Tanzania on substantive justice in Tanzania and to analyze the possible solutions thereto

1.3.2 Specific Objectives i) To examine the main causes of legal technicalities in The Court of Appeal of Tanzania on substantive justice in Tanzania. ii) To explore the reasons as to why the Court of Appeal resort to technicality as a way of resolving matters before it. iii) To expose the impact of legal technicalities in the administration of justice in Tanzania.

1.4 Research Hypothesis The researcher in this study works under the assumptions that: •

It’s true that the Court of Appeal of Tanzania dismisses cases on legal technicalities.

•

That it’s true that dismissal of cases on legal technicalities affects substantive justice of litigants.

16

1.5 Scope of the Study This study intends to make a critical investigation of the researched problem in Mwanza, Nyamagana District. The researcher can had an opportunity to interview the targeted populations like justices of appeal, registrars, advocates, magistrates, ordinary people and judicial stakeholders. Also the researcher had an opportunity to access various relevant literatures relevant to the topic from the study area. 1.6 Significance of the Study. This study adopts a human rights perspective in considering the problem of using technicalities in courts of law and more specifically the Court of Appeal of Tanzania. This study suffices the following significance:i) The study helps the government in laws and policy reforms in order to ensure that justice is not denied on technical basis. ii) The study helps the public at large to understand and access their rights in litigations and help them to build confidence to our civil and criminal justice system. iii) The study shows the possible solutions to be adopted by judges, magistrates, judicial stakeholders and advocates to ensure that justice is not been denied on technicality basis.

1.7 Research Methodology 1.7.1 Type of Research The researcher used qualitative study in order to analyze the impacts of dismissal of cases on legal technicalities by the Court of Appeal of Tanzania on substantive justice in Tanzania and the

17

extent to which such dismissals affects rights of people in the society. The researcher also use field and library study in collecting and analyzing data on the issue at hand. 1.7.2 Sampling Design The research was conducted in Mwanza region to which the researcher had an opportunity to interview various study population including justices of appeal, Judges of High Court, registrars of the High Court and Court of Appeal, magistrates, advocates, judicial stakeholders and members of society who in other way are affected directly or indirectly by the practice of the Court of Appeal. The total number of sample size will range from 25 to 30 people. 1.7.3 Data Collection The researcher used in this study both primary and secondary data in the whole course of the investigation study. In collection of primary data the researcher used questioners and interview in the course of the study in extracting data from the targeted population which includes justices of appeal, registrars, advocates, magistrates, ordinary peoples and judicial stakeholders.

18

CHAPTER TWO THEORATICAL AND CONCEPTUAL FRAMEWORK. 2.0 Introduction This chapter focuses on the concept, theories and practical aspect of justice, its emergency, historical development and its current dimension. The chapter also tries to discuss various concepts relating to justice including Justice and Law, Legal procedures and justice, Technicalities and Justice, Access to justice and Technicalities, The Court of Appeal of Tanzania and administration of Justice as well as Comparative study.

2.1 Definition and Historical Development of Justice. The definition of the term justice is still a matter of controversy among scholars. A comprehensive definition is yet to come. The difficult in defining it is increased by the fact that justice can be used in a wider or more restricted sense13. Black’s Law Dictionary 8th Edition14 defines Justice as a fair and proper administration of law. It is a moral ideal that the law seeks to uphold in the protection of rights and punishment of wrongs15. Justice means fairness, equality or equity. Substantive justice thus means justice fairly administered according to the rules of substantive, regardless of any procedural error not affecting the litigant’s substantive right ; a fair trial on merit16. The history of justice is as old as man himself and disputes. Some of the earliest thinking about justice is found in Aristotle’s works. Aristotle in 1130-32 BC make a distinctive argument that

13

FITZGERALD P.J( 2006), Salmond on Jurisprudence, 12th Ed, Universal Law Publishing Company, Delhi India at p.60. 14 GARNER B.A (2004), Blacks’s Law Dictionary, 8th Edition, West Publishing Company,USA, at p.881. 15 ELIZABETH A M (2001), Oxford Dictionary of law, Oxford University Press, London, at p 275. 16 Ib id.

19

justice operates at two different levels, distributive justice which ensures fair division of social benefits and burdens among members of community (including democratic rights such as right to vote) and corrective justice with the objective of doing justice between parties without taking account of larger distributive issues in the society as whole (like the law of Tort).

2.2 Law and Justice. The solemn commitment to do justice “according to law” is asserted in its strictest form in the maxim Fiat justicia, Ruat caelum which means, “Let justice be done, though the heavens fall17”. The relationship between justice and law is controversial. Mr. Justice Francis Nyalali the former Tanzanian’s Chief Justice, (as he then was), pointed out that law and Justice are not only capable of being achieved simultaneously, they are inseparable. He argued that there is no reason why a Judge should not administer justice-in every situation and according to law. To him true law, can never be in conflict with Natural justice, Constitution and Equity 18. On the above point of view justice has a direct link to law as justice is the goal and the spirit of law.

2.3 Procedural laws and Technicalities. Procedural laws refer to rules that prescribe the steps for having a right or duty judicially enforced, as opposed to substantive law that defines specific rights or duties19 In Lushoto Tea Co. v Tanzania Tea Blenders20and in Majembe Auction Mart Ltd v Tango Transport Co. Ltd and Tanzania Revenue Authority21, , the Court of Appeal unequivocally

17

Fauz Twaib, Legal Empowerment of the Poor: Access To Justice and Rule of Law at pg.5. Nyalali F.L(1994) the ‘changing role of Tanzania Bar’, Tanzania Lawyer, September- December 1994 p. 4. 19 Op cit n.3 at p.1241. 20 Civil Appeal No. 71 of 2004 (un reported). 21 Civil Appeal No 88 of 2004 (un reported) 18

20

explained that Courts cannot function without procedural rules. A Court without a code of rules or procedure is an invitation to chaos. The current Chief Justice of Tanzania Mr. Justice Mohamed Othman Chande on his address to the Bar on Law day 2012 pointed out that “Procedural justice constitutes another imperative challenge to the system of administration of justice. It has a direct influence on justice delivery. Article 107A (1) (e) of the Constitution enjoins the Court to dispense justice without being tied up with undue procedural technicalities. We must deal away with antiquated, time-consuming (onerous) and redundant procedures. They serve no purpose. Substantive justice must be rendered without unwarranted or excessive procedures. Not every procedural requirement is essential or goes to the root of the cause or matter.”22

Hon. Mr. Justice Robert V. Makaramba, judge of The High Court of Tanzania Commercial division in his address to Members of Tanganyika Law Society in 2012 at Arusha23 noted that “The inherited common law adversarial system with its attendant English practice and procedure has always been at the centre of public criticism for contributing to delays in the dispensation of justice together with its attendant procedural technicalities” The Law Reform Commission of Tanzania24 proposed that the Civil Procedure laws and substantive rules currently in force are complex in nature especially for a layman to understand reasonably well. The underlying reason is that, the Civil Procedure Code (CPC) provisions are couched in sophisticated and elaborate English language such that persons lacking law training have difficulty in construing the rules”.

22

Mohamed Chande Othman (2012), Keynote Address of Chief Justice on the occasion of the Annual Conference of the Tanganyika Law Society, 17 February 2012, Arusha, Tanzania at p. 21. 23 Hon. Mr. Justice Robert V. Makaramba , “Breaking the Mould; Addressing the Practical and Legal Challenges of Justice Delivery in Tanzania: Experience from the Bench, TLS, February 2012 in Arusha p.7. 24

LRT in their report on Civil Justice Review System Pg 3.

21

At this juncture we need to approve the fact that not every procedural irregularity is fatal. For procedure irregularity to be fatal it must go to the very root of the matter. There are procedural rules which require strict compliance and other need not25. 2.4 Access to Justice and Technicalities. Access to Justice is a broad concept and has a number of interwoven components (access to formal and informal dispute resolution mechanisms; awareness of legal rights; access to laws and legal information; legal representation and legal aid; realization of just, equitable and enforceable outcome, etc). Plainly it refers to as regards access to the formal justice system26. Mwesiumo, J. in Joseph Kivuyo and others vs. Regional Police Commander Arusha and another27, observed that the court is the temple of Justice and no one should fear to enter it and battle for his rights or redress as provided by the laws of the land. Justice Makongoro in Chief Direko Lesapo vs. Northwest Agricultural bank28, stated that “the right of access to justice is indeed the foundation of stability and orderly society. It ensures peacefully, regulated and institutionalized mechanism to resolve disputed without resolving to self help…” To cement the Court of Appeal of Tanzania in the case of CRDB Bank Tanzania Limited v TTCL and Another29, was of the standing that “The door of court must always be left wide open and procedural technicalities must not be used to deny litigants the right of arguing their cases in court…the right to sue is a constitutional one, the Court itself must not restrain parties from using their right to sue by using technicalities”.

25

Op cit n.22 Op cit n. 16 at p.10. 27 (1973) HC Arusha (unreported) 28 Case CCT 23\99 29 Civil Appeal No.63 of 2003 CAT at Dar-es-salaam (unreported) 26

22

H.E Benjamin William Mkapa, former President of The United Republic of Tanzania in his address on inaugurating the silver jubilee on the 25th Anniversary of the Court of Appeal of Tanzania noted that: “Inaccessible justice is also justice denied! And I see two main obstacles to justice. The first is cost, in terms of time and money. The second is the onerous procedural and bureaucratic complexity that I believe could be lessened…if justice goes out the right window, chaos, conflict and impunity enters through the left window”30. According to the above views technicalities indeed bar litigants from accessing their right which they sought for a very long period of time spending all of their resources. 2.5 Theoretical Analysis of Justice The researcher in this study is guided by the John Rawls’s theory of justice on which one cannot think about justice without taking a position in Rawls’s theory of Justice. Rawls’s theory of Justice was propounded in the year 1971 and it entails that there should be the maximization of liberty, equality for all, and fair equal opportunity31. To him Justice is the first virtue of social institutions, as truth is of systems of thought. Being first virtues of human activities, truth and justice are uncompromising. Rawls’s theory of justice was developed from social contract theory to which he generate principles of justice for assigning basic rights and duties and determining the division of social benefits in a society32. All in all the idea of justice has a direct link with right, morality, equality and entitlement.

30

Op cit n. 14 at p.33-34 Freeman M.D.A, Lloyd’s Introduction to Jurisprudence, 8th Ed, Thomas Reuters (Legal) Ltd, London, 2008 at p.583-4. 32 Professor Rawls J (1971), A Theory of Justice, Havard, USA, at p. 1-2. 31

23

2.6 Practical Analysis 2.6.1 The Court of Appeal of Tanzania and administration of Justice Despite of the provision of Article 107A (e) of The Constitution of United Republic of Tanzania 1977 and the Court of Appeal Rules 200933 which discourages the use of legal technicalities in delivering justice, this is not the case in practice where the Court of Appeal of Tanzania continue to dismiss cases on legal technicalities. It is true that dismissal of cases by the Court of Appeal of Tanzania on technicalities had most of time affected substantive justice. Legal technicalities can be seen from the interpretation and application of statutes and rules, limitation of actions such as lapse and slips in applications, complex procedural rules, and contradictions among justices of appeal. It affects access to justice and whenever the matter is dismissed of technically, the substance of the case is no longer at issue hence the Court embarks on irrelevant matters which do not assist the litigant anyhow. The former Chief Justice of Tanzania Mr. Justice Ramadhani (as he then was) in his address on Law day 2008 pointed that “The administration of justice in Tanzania is the core and exclusive function of the Judiciary. There are hitches with our rules of procedure. We in the Court of Appeal cannot absolve ourselves we are in it to the hilt”. It has been argued that “If the Judiciary is the guardian of the rights of the people, the organized Bar and its lawyers are the foot soldiers. The legal professional and the private bar bear a large share of the burden...34”

33 The Court of Appeal Rules of 2009 were signed by the Chief Justice and were gazetted in November, 2009 through Government Notice (GN). No. 368 of 2009 and came into force in February, 2010 through Government Notice (GN) No. 36 of 2010 Gazetted in January, 2010. 34 Robert J. Grey Jr, in Access to the Courts, Equal Justice to All, US Dept of State, Aug 2004.

24

It’s then amazing to see the Court of Appeal of Tanzania still embrace the practice of dismissing cases on legal technicalities rather than going to the merits of the case. Even senior members of the Court have openly admitted that the Court is too technical at the expense of delivery of justice. Mfalila J.A (retired) observes “It is said and perhaps correctly that the Court has become too much of a slave of its own rules to the extent that it cannot rectify injustices”. One may ask how come that judges of the same Court administering the same rules have such divergent views35.

2.7 The Legal Framework of Dismissal of cases on technicalities. The Constitution of united republic of Tanzania 1977 as amended from time to time. By the year 2000 the Constitutional of the United Republic of Tanzania was amendment by Act No. 3 of 2000 and Article 107A(e) was inserted and the Article provides among other they courts should dispense justice without being tied up with undue technical provisions which may obstruct dispensation of justice36”. It is from this Article the authority to do away with legal technicalities is drown and the courts are advised to go to the merits of the case and not to resort in technicalities in delivering of substantive justice. The Article indeed enjoins the Court to dispense justice without being tied up with undue procedural technicalities. In practice it has been a tendency of the Court of Appeal of Tanzania to dismiss cases on legal technicalities which denied substantive justice of litigants.

35

Mapunda A.M (2008), A Position Paper on Review of The Appellate Jurisdiction Act 1979 and The Court of Appeal Rules 1979, LRCT, Dar-es-salaam at p.61-62. 36 See Article 107A (1) (e) of the Constitution of United Republic of Tanzania 1977.

25

The Court of Appeal Rules 2009 Rule 2 to the Court of Appeal Rules 2009 replicates (imports verbatim) the overriding principles in Article 107 A (2) of the Constitution of the United Republic of Tanzania, this Rule provides that in administering these Rules, the Court shall have due regards to the need to achieve substantive justice in the particular case but in practice the Court has taken a different position37. Rule 4(1) and (2) of the Court of Appeal Rules 2009 provides that the practice and procedures in connection with appeals, intended appeals and revision from the High Court, review and reference to the court shall be as prescribed under the Rules or any other written law but the court from time to time direct a departure from the Rules in any case which it is required in the interest of justice [Emphasis added]. The provision of Rule 10 of the same Rules provides that the court may extend time limited by the Rules for any act to be referred to the Court. All the above provisions need to do away with complex procedures at the cost of justice. Despite the Provisions of The Court of Appeal Rules 200938 which discourages the use of legal technicalities in delivering justice, this is not the case in practice where the Court of Appeal of Tanzania continue to dismiss cases on legal technicalities The Appellate Jurisdiction Act 1979. The appellate Jurisdiction Act39 was enacted by the Parliament of United Republic of Tanzania in the year 1979. It was published in the Government Gazette on 1st September, 1979 through G.N. No. 98 of 1979. The Act was enacted to provide for the Jurisdiction of The Court of Appeal 37

Dr. Mapunda A, Law and development for the people: stake holders participation in the Law Reforms, A Paper Presented at a Workshop to celebrate the 30th Anniversary of the Law Reform Commission of Tanzania held at the Serena Hotel, Dar es salaam on 28th November, 2013. 38 The Court of Appeal Rules of 2009 were signed by the Chief Justice and were gazetted in November, 2009 through Government Notice (GN). No. 368 of 2009 and came into force in February, 2010 through Government Notice (GN) No. 36 of 2010 Gazetted in January, 2010. 39 Cap 141 RE 2002.

26

of Tanzania. Section 4 of this Act provides that The Court of Appeal shall have jurisdiction to hear and determine appeals from the High Court and from subordinate courts with extended jurisdiction. The Court according to this Act has jurisdiction over all cases of Constitutional interpretation. The court is empowered by section 11 of this Act to extend time for filling notice of appeal to the Court of Appeal against the decision of the High Court. This section allows the court to do away with complex procedures which may otherwise result to denial of justice if they are strictly followed.

2.8 Comparative study 2.8.1 The court of Appeal of Kenya The Court of Appeal of Kenya is established under Article164 of the constitution of Kenya 2010 and consists of a number of judges, being not fewer than twelve. The main purpose of this court is to determine appeals of both civil and criminal nature from the High court of Kenya or any tribunal established by an Act of Parliament40. Article 159 of the constitution of Kenya 2010 enjoins the Court to dispense justice without being tied up with undue procedural technicalities. The Court of Appeal of Kenya in number of occasions has been a champion of opposing the use of legal technicalities in dispensation of justice by courts of law. The following cases elaborated this position: In Githere v Kimungu41, Justice Hancox stated that: “the relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress and that the Court should not be too far bound and tied by the rules, which are intended as general rules of

40 41

See Article 164 (a), (b) of The Constitution of Kenya 2010. (1976-1985) EA 101

27

procedure, as to be compelled to do that which will cause injustice in a particular case.” In Kenya Commercial Bank Limited v Kenya Planters Co-operative Union42, it was held that technicalities of procedure non-compliant precedents or the exercise of power in a manner that would defeat the court’s core business of acting justly would have to give way. The court went ahead and allowed for the filing of the application which was otherwise time barred by the rules of procedure. However in practice the Court of Appeal of Kenya seems to embrace the common law incurable disease of dismissing cases on legal technicalities. In a number of occasions advocates in Kenya has been lamenting the court for dismissing cases on technicalities. One of the cases decided of technically by The Court of Appeal of Kenya is the case of Pepco v Carter43, where a party named “Pepco Construction Company Limited” was mistakenly described in the Notice of Appeal as “Pepco Construction & Transport Co Ltd”, the pre-amended name in the file. The title of the notice of appeal erroneously included the word “Intended”. Holding these defects incurable, the court said, these errors are not the sort of errors that can be cured under rule 44. In line with the above case laws and opinions of legal scholars, the problem of legal technicalities in courts of law is still unsolved even in the neighborhood Jurisdictions. Both the Court of Appeal of Tanzania and the Court of Appeal of Kenya embraces the use legal technicalities in administration of justice. This practice again affects litigants as it encroaches their substantive rights.

42 43

[2010] KLR (24/3/00)

28

2.8.2 The Supreme Court of Uganda Article 126(2) (e) of the Ugandan Constitution44 provides that…in adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the following principles…substantive justice shall be administered without undue regard to technicalities. The Supreme Court of Uganda in the case of Utex Industries Ltd. Vs Attorney General45,The applicant sought to rely on Article 126(2) (e) in support of its case seeking to enlarge time. In rejecting the application the Court said: we are not persuaded that the Constituent Assembly Delegates intended to wipe out the rules of procedure of our courts by enacting Article 126(2) (e)…We think that the article appears to be a reflection of the saying that rules of procedure are handmaids to justice meaning that they should be applied with due regard to the circumstances of each case. For any delay to be excused, it must be explained satisfactorily. In another case that is the case of Kasirye Byaruhanga &Co Advocates Vs Uganda Development Bank46, came before the same court on an application for enlargement of time; this time the court held that a litigant who relies on the provisions of Article 126(2)(e) must satisfy the court that in the circumstances of the particular case before the court it was not desirable to pay undue regard to a relevant technicality. Article 126(2) (e) is not a magic wand in the hands of defaulting litigants. If you compare the decisions of the court of Appeal of Tanzania and that of the Supreme Court of Uganda you can find no difference. By saying so the practice concerning dismissal of cases on legal technicality in the Supreme Court of Uganda matches with the practice in The Court of Appeal of Tanzania.

44

The Ugandan Constitution 1995 (Civil Application No.52/95). 46 (Civil Application No.2/97) 45

29

In general the lesson which Tanzania can learn from other countries in East Africa is that procedural laws are the hand maiden for administering justice. In this regard there are procedural laws which require strict compliance and others requires no strict compliance. The court of Appeal of Tanzania should relax in case some of procedural laws which require no strict compliance are breached by litigants.

30

CHAPTER THREE RESEACH FINDINGS DISMISSAL OF CASES ON LEGAL TECHNICALITIES BY THE COURT OF APPEAL OF TANZANIA 3.0 Introduction This chapter covers presentation of findings and data collected by the researcher from both field study through interviews and questionnaires as well as from library study. It intends to explore and discuss findings from various respondents and test the hypothesis presented for in previous chapter in order to verify them. Also this chapter centers itself to see whether The Court of Appeal of Tanzania dismisses appeals on legal technicalities, the causes of legal technicalities and effects of legal technicalities on substantive justice. 3.1 Findings The Court of Appeal of Tanzania is the highest court in hierarchy of courts in Tanzania. It has Jurisdiction over appeals from the High Court of Tanzania and from the High Court of Zanzibar47. It is established by Article 117 of the Constitution of The United Republic of Tanzania 1977 as the final and the appellate court in Tanzania and its decisions are final and conclusive48.

47

Mashimbi Bonaventure, LLB IV student at SAUT in his response to a Questionnaire. George E. Waryoba, Judicial officer (Statistics) at the Resident Magistrate Court of Mwanza at Mwanza in his response to a questionnaire on 7th February 2014. 48

31

The main functions of The Court of Appeal of Tanzania are to determine appeals from the High Court of Tanzania and the High Court of Zanzibar. All appeals in the Court of Appeal of Tanzania lie on point of Law, to make binding decisions (precedents) which binds inferior courts, to make orders and rulings on certain legal issues49. It also Interpreting diverse Laws and execution administrative decisions, Hearing and deciding cases filed before the courts of law, Educating members of the public of their rights obligations under the laws of the Tanzania and Facilitating maintenances of peace and order through good governance and the rule of law50. Legal technicalities refer to the technical aspect of law which does not go to the merits of the case. They involve procedural aspect of law as opposed to substantive aspect of law which require legal expert to determine them51. These are all means that the law experts use either to create loop halls or evade certain interpretations of statutes or evade certain legal procedures of which the law accommodates52. Most of the respondents interviewed by the researcher or who responded to questionnaires fail to provide a clear definition of the term legal technicalities. There is no single and conclusive definition of the term .It is a casual or colloquial phrase referring to a technical aspect of law. The phrase is not a term of art in law, it has no exact meaning nor does it have a legal definition. It implies that the strict adherence to the letters of the law have prevented the spirit of law from being enforced53. Legal technicalities are strict rules of procedure, points of law or small set of rules as contrasted with intent or purpose of the substantive law. The technicalities ensure strict

49

Hanafi Ramadhani, an ordinary citizen in his response to a questionnaire on 7th March 2014. http://www.judiciary.go.tz/ accessed on 11th March 11, 2014 at 00:40 am. 51 Kamulu Raphael, An Advocate of The High Court of Tanzania and Subordinate courts thereto and an assistant lecturer at St.Augustine University of Tanzania in his response to an interview with the researcher on 8th March 2014 started at 11:43 am. 52 Op cit n.61 53 See US v Shipp 214 US 386 1909. 50

32

adherence to the letter of the law and may prevent the spirit, intent or purpose of substantive law from being enforced. The court attempted to define it in the case of James Muriithi Ngotho & 4 others v Judicial Service Commission54, where they defined the terms separately using the Black’s Law Dictionary 9th edition and the Concise Oxford English Dictionary . Some of the legal technicalities which govern the legal procedure either enables or restrict access to justice in courts55. 3.1.1 Causes of legal technicalities in Court of Appeal of Tanzania. In their response on the causes of legal technicalities in courts of law respondents mentioned various things to be the causes to the problem. The first respondent responded that legal technicalities are the results of interpretation of statutes and legal procedures. He continue saying that legal profession involves interpretation of statutes and in interpretation of statutes people may come out with conflicting views. To him every word in a statute should be clearly defined to avoid these conflicting views56. Another respondent responded that legal technicalities are a result of the way laws are drafted. To him the way the laws are drafted allows technicalities and technicalities depend on the perspective of a judge, a thing can be technical to one judge but not the other57. Other respondents responded that technicalities are caused by errors in procedures, uncertainty or absurdity in law, loopholes in laws and failure of the court to comply with Article 107A of the 54

[2012] KLR http://www.ockadvocates.com/2013/04/prosedural-technicalities-versus-substantive-justice/#_ftn7 accessed on 3rd March 2014 at 13:15 pm 56 Op cit. n 62. 57 Mwinuka Ignas, Learned State Attorney Based in Kilimanjaro during an interview with the researcher conducted through phone on 8th march 2014 started at 12:39 pm. 55

33

Constitution58. They are also a result of complex procedures on extension of time, statutes of limitations, rules of appellate procedures, stay of proceedings, conflicts of rules of procedures as well as professional misconduct59. Another respondent in his response to a questionnaire responded that legal technicalities are caused by ambiguity in facts of the case and interpretation of laws60. They are the results of lack of awareness of legal techniques and procedures to laymen61. Few justices of appeal compared to appeals lodged to the court also is among the complained factors. For example one of the respondents responded that: “It is true that there are few Justices of Appeal not only in The Court of Appeal of Tanzania but even in lower courts. This is due to insufficiency budget of the government as there are many experts who can do the work but are unemployed. It is a normal psychology when judges are overloaded may embark on technicalities rather than going to the merit of the case62”. 3.1.2 Dismissal of cases on legal technicalities by The Court of Appeal of Tanzania. Responding to the question as to whether the Court of Appeal of Tanzania dismiss appeals on legal technicalities these are the findings. The first respondent responded that it’s true to a great extent that Court of Appeal of Tanzania dismisses appeals on legal technicalities. He pointed out election petitions of Dr. Dalali Peter Kafumu and Joseph Kashindye and that of Godbless Lema dismissed by the Court of Appeal of Tanzania on technical grounds63.

58

An interview conducted by the researcher with students from various Universities, 2 students from Mzumbe University, 1 from Tumaini (Makumira) University and 3 from St.Augustine University of Tanzania held on 11th September 2013 at the premises of The Resident Magistrate Court of Kilimanjaro at Moshi. 59 Kisusi Joseph and Almachius Apolinary, LLB IV Students at SAUT in their response to questionnaires. 60 Op cit n. 60. 61 Op cit n.59. 62 Refer an inter view with Advocate Raphael Kamuli op cit n. 62. 63 Op cit n. 62.

34

Also another respondent responded that the Court of Appeal of Tanzania is not consistent in its decisions. It is the highest court in hierarchy responsible for making decisions which binds all lower courts. In this regard when an appeal is disposed off technically it affects lower courts as they are directly bound by it. To support his argument the respondent cited the case of Francis Felix Mkosamali which before it was over ruled it affects most of decisions of lower courts. 3.1.3 Solution to the problem. Responding to the question as to what are the possible solutions to the above problem respondents responded as follows. The first respondent responded that justice should prevail over procedures. Minor errors which do not go to the very roots of the case should be ignored. He proposes that advocates should be more careful in complying with procedures and they should agree not to raise irrelevant Preliminary objections which do not go to the roots of cases. He concludes by saying that Article 107A should be strictly adhered in the system of administration of justice in Tanzania by CAT64. Another respondent proposed that Alternative Dispute resolution Mechanisms should be encouraged, laws should be interpreted properly and procedures should be observed by parties in order to solve the problem of dismissal of cases on legal technicalities by the Court of Appeal of Tanzania65. Another respondent responded that Magistrates and Judges of the High Court should interpret the laws clearly and they should connect them properly to the facts I order to avoid the problem of

64

Op cti n. 62. A response to an interview by the researcher with Mr. Innocent Ndanga, An assistant lecturer at St.Augustine University of Tanzania on 8th March 2014 started at 12:49 pm. 65

35

dismissal of appeals by the CAT on legal technicalities66. Increasing number of justices of Appeal to accommodate registry judges is among the durable solutions suggested by respondents to this study.

3.2 Sample of Cases dismissed on Legal technicalities by The Court of Appeal of Tanzania. Republic v A.C.P Abdallah Zombe and 12 others67, on which the court dismissed the notice of appeal lodged by the prosecution on the ground that the notice was incurably defective by referring to Justice Massati as a justice of Appeal while in fact he was a judge of High Court when he give his decision in question. If the Court of Appeal could focus on substantive justice by the time the ruling was delivered this could be a curable defective to be offered an amendment. These are the words of their Lordships: “We have found ourselves constrained to hold that as long as the notice of appeal on record is purporting to institute an appeal against a non existing judgment is incurably defective and cannot by stretch of imagination be amended…the trial judge did not subsequently try and decide the case in his capacity as a Justice of Appeal, as the notice of appeal erroneously shows but as the judge of high court…it is a gross error for the Director of Public Prosecution to lodge in the Court of Appeal a notice of appeal against the judgment of Massati, the Justice of Appeal ”. From the above ruling the only problem which the court holds it to be incurably defective was the act of the prosecution to error in referring Massati as a Justice of Appeal while in fact he was a judge of the high court by the time he decide the case at first instance and latter on promoted to be a Justice of Appeal”. If the Court of Appeal could focus on substantive justice by the time the ruling was delivered this could be a curable defective to be offered an amendment.

66

Op cit n.60. A notice of appeal failed to appeal on the decision of Massati J in Criminal Case No.26 of 2006 (before Rutakangwa JA, Mbarouk JA and Mmila JA). 67

36

Yokwe Gwaku & 4 Others V. National Agricultural & Food Corporation & Another68, the applicants lodged an application for an extension of time within which to apply to restore Civil Appeal No. 37 of 1998 from the judgment and Decree of the High Court of Tanzania at Dar es Salaam. The applicants were laymen hence not conversant with court procedures. The CAT in addressing this matter laid an emphasis on whether there was sufficient ground for extending the period for restoration of the appeal. The merit of the substantive matter was not considered by the presiding judge and the application was dismissed with costs. This was the end of the journey towards justice. The case was lodged in Court of law early in 1985 and came to an end technically in year 2006. Zakaria Japhet@ Jumanne and Others v Republic69, this appeal emanated from the decision of the High Court of Tanzania at Moshi in Criminal session No.26 of 1998 before Mkwawa J. The case started on 26th July 1997, whereby the appellants were charged for murder for killing one Gerald s/o Alphonce at Marangu Irisi Village. All accused persons were found guilty and were convicted for murder and sentenced accordingly. Being aggrieved by the conviction and sentence of High Court the appellants appealed to the Court of Appeal of Tanzania in 2003. After discussion and evaluation of evidence on record which shows that the appellants were identified by electricity light the Court of Appeal of Tanzania equivocally comes with the decision that: “The learned trial Judge was satisfied that the appellants were properly identified. It has not been shown from the evidence how bright the illumination and intensity of the electric was so as to enable PW.2 to identify the appellants among the crowd beyond all doubts” In granting the appeal, quashing the conviction and sentence the learned justices of Appeal concluded also equivocally that:

68 69

Civil Application No.67 of 2005, Court of Appeal of Tanzania at Dar es salaam, (unreported). Criminal Appeal No.37 of 2003, CAT at Arusha (unreported).

37

“I t is a cardinal principle of law that in criminal charges doubts are resolved in favour of the accused however slight they may be. In similar vein, in this case, it is our view that lingering doubts as indicated herein should have been resolved in favour of appellants” In light with the above case here comes the need to ask ourselves and evaluate the decision. That does the Court of Appeal of Tanzania change the position that electricity light is proper for identification? Does it change the position that in criminal cases doubts should be reasonable? In my view in all criminal cases there are doubts, but the impact of doubt in any criminal case depends on its reasonability. The Court of Appeal of Tanzania should remember that the criminal standard of proof in Tanzania is beyond reasonable doubt not slight doubts70. We need to think of the resources used by parties and those of the government used in this case from 1997 until it was dismissed in 2006 by the Court of Appeal of Tanzania on such a technical grounds. What about the victims who lost off the life of their beloved one? VIP Engineering and Marketing V. Said Salim Bakhresa Ltd71, an Advocate delayed for applying for review of the decision of the court. The Court said the advocate’s error was not sufficient cause to grant extension of time to apply for review. The Court was categorical in its view said that: “It is a matter of great pity that his advocate was on a legal window shopping excursion. But this Court has repeatedly said that the error of an advocate does not constitute sufficient cause to enlarge time. In our considered opinion, it automatically follows that the error of an advocate cannot be ground for stalling the running of the period of limitation”. The purpose of the law is to serve the interest of justice and not the vice versa. The Court should not confine itself to a single position but it should rather be flexible as this is detrimental to people who vest all their hopes in the judiciary as far as justice administration is concerned72.

70

See Jonas Nkize v Republic 1992 TLR 213 (HC). Civil Application No. 52 of 1998 CAT at Dar-es-salaam (unreported) 72 Op cit n. 58. 71

38

Felix Francis Mkosamali v. Jamal A.Tamim73, the Court has held that omission of the full names of the attesting officer in a jurat is a fundamental defect that renders an application incompetent. Kinondoni Municipal Council v. Alphonce Buhatwa74, it was held that wrong citation, failure to cite the correct provision of the law or sub-clause non citation to support an application, will render an application fatally defective. These are sample of cases dismissed by the court of Appeal of Tanzania to mention few.

3.3 Discussion of findings In light with the findings above collected from field and library we could come to the position that the problem of dismissal of cases on legal technicalities by the Court of Appeal of Tanzania exist. Most of respondents in interviews or questionnaires verify this truth. The findings also shows that technicalities are the results of complex rules of procedures, interpretation of statutes, professional misconducts by judicial officers, loop holes in statutes, contradictions and conservatism among Justices of Appeal in interpretation of statutes as well as complexity in rules of extension of time in Court of Appeal. It is observed that at all the time when cases are disposed off technically substantive justice is at stake. As it was observed that: “It is said and perhaps correctly that the Court of Appeal has become too much of a slave of its own rules to the extent that it cannot rectify injustices75”. Justice Lameck M.S Mfalila once argued that the court of Appeal is swamped with appeals not to mention the numerous applications. The Justices of appeal are overworked. They have poor

73

Civil Application No.4 of 2012 CAT (unreported) Civil Application No. 150 of 2007, Court of Appeal of Tanzania at Dar es salaam (unreported). 75 Ramadhani I. (2007), “The Court of Appeal of Tanzania: Its Posivistic Policy and Justice”, An LL.M Dissertation, Faculty of Law, University of Dar es salaam. 74

39

tools, environment and assistance. In fact it is a miracle that given such an environment, they manage to produce judgments at such a rate and speed76. Mr. Justice Damian Z. Lubuva also argued that the complaint that the Court of Appeal of Tanzania is not performing to the expected standards could be looked at from a different perspective. Namely that the long drawn period those appeals take to be disposed…is also a relevant factor which affects the performance of the court. This state of affairs could partly be explained by the fact that justices of Appeal being overburdened by the increasing workload coupled with lack of supporting research assistants, barely get time to render analytical judgments77. The above observations and comments from those two justices show that it is undisputed fact that the Court of Appeal of Tanzania is flooded with multiple numbers of appeals and applications. Also it is undisputed fact that Justices of Appeal are overworked with those appeals and applications. So we must ask ourselves can the current 15 justices of Appeal manage to dispose those appeals flooded in the court timely? Can they find another alternative to attain timely justice? On above circumstances I think Justices of Appeal working under those circumstances may be tempted to dismiss appeal and applications on technicalities in order to reduce their work loads.

76 77

Op cit n.5 at p.81. Ib id p.99

40

CHAPTER FOUR CONCLUSION AND RECOMMENDATIONS. 4.0 Introduction. This chapter provides an overall conclusion of the whole study. It contains opinions and recommendations by the researcher on the subject of this study which is dismissal of cases on Legal technicalities versus Substantive Justice; a critical analysis of the Court of Appeal of Tanzania Decisions. This conclusion tries to provide an over view on how scholars, legal professionals and members of the general public are affected by the problem as well as possible solutions thereto. 4.1 Conclusion. It has always been a developed tendency in practice of the court of Appeal of Tanzania to dismiss cases on technicalities, perhaps to them it is an easy and simple way of reducing the workload of the court but I don’t think so. The court of Appeal is now famously known as the court of public interests, public morality and technicalities and at least very few lucky lawyers have succeed to pursue the bench on an appeal. Justice in the Court of Appeal of Tanzania is seen by litigants as something very far in a rounded tunnel which inhabit lion kids. Legal technicalities in delivering justice in courts of law particularly the Court of Appeal can be traced from the interpretation and application of statutes and rules, limitation of actions such as lapse and slips in applications, complex procedural rules, and contradictions among justices of appeal. Dismissing cases on technicalities becomes a problem to date. This era has experienced a great use of Legal technicalities by courts of law which in turns affect the substance of justice. People lose confidence with the judicial systems of administration of 41

justice; actions like mob justice are very common today as they make headlines of our Medias day after day. Legal technicalities bar litigants from accessing justice and it increase costs of litigations in terms of time and costs. The researcher calls for an immediate redress for the problem hereunder. 4.2 Recommendations. a) It is also recommended that Article 107A (2) (e) of The Constitution should be strictly adhered by courts of law especially CAT in dispensation of justices in matters of civil and criminal nature and Alternative Dispute resolution Mechanisms should be encouraged by the Judiciary. b) It is recommended that where a party who is represented by an advocate loses a case because of the negligence or ignorance on the party of his advocate, the Court should order the advocate to reimburse the loss that has been occasioned. This will reduce the rate of professional misconduct among advocates and other judicial officers. c) It is recommended that the state should increase number of Justices of Appeal by employing new justices to accommodate the demand of the court of Appeal. d) It is also recommended that there is a need to establish zonal registries of the Court of Appeal and to have registry justices of Appeal. Each registry of the Court of Appeal should have at least permanent registry Judges who can save as full time judges to avoid delaying of disposal of appeals as justice delayed is justice denied. e) It is recommended that amendment should be done on various statutes of procedures to allow relaxation of some complex procedures. Some of the procedural rules are so fundamental that non compliance may render a proceeding incompetent. We know that

42

procedures are very essential for one to attain substantive justice but laws should be amended to relax some of complex procedures. Minor errors should be accommodated by the laws. f) It is recommended that in construing the Court of Appeal rules, only serious breaches of the rules be treated as fatal, while minor errors or irregularities should not be allowed to jeopardize the interests of justice. Minor errors, lapses and irregularities that are discovered in the course of passing through an application should not be fatal, if an oral amendment can cure the defect, and it does not affect the substance of the application. g) It is also recommended that there should be consistency in the CAT’s decisions on what amounts to minor errors and fundamental breaches of the rules. The Court should refrain from being too technical in addressing and handling matters brought before it. h) Lastly it is recommended that the Judiciary of Tanzania should increase its efforts in employing legal officers for Judges and Justices of Appeal as many as possible in order to reduce the workload of cases to Justices of Appeal and Judges of High Court.

43

BIBLIOGRAPHY LIST OF BOOKS

•

ELIZABETH, A M, (2001), Oxford Dictionary of law, 5th Ed, Oxford University Press, London.

•

FITZGERALD, P.J (2006), Salmond on Jurisprudence, 12th Ed, Universal Law Publishing Company, Delhi India.

•

FREEMAN, M.D.A (2008), Lloyd’s Introduction to Jurisprudence, 8th Ed, Thomas Reuters (Legal) Ltd, London.

•

GARNER, Brian A, (2004) Black’s Law Dictionary, 8th Ed, West Publishing Company, USA.

•

MAINA, Chris et al (2005), Justice and Rule of Law in Tanzania ;Selected Judgments and writings of Justice James L. Mwalusanya and Commentarie, LHRC, Dar-essalaam.

•

MAINA, Chris et al (ed), (2007) Law and Justice in Tanzania, Quarter of a Century of the Court of Appeal, Mkuki na Nyota Publishers, Dar-es-salaam.

•

MENON, N.R, Holland on Jurisprudence, 13th Ed, Universal Law Publishing Co, New Delhi, India, 2007 .

44

JOURNALS, ARTICLES, AND OTHER MATERIALS

•

CHENGE, Andrew (1994), The new role of Tanzania Bar, Address of Attorney General of Tanzania at the 10th admission Ceremony of Advocates Dar-es-salaam.

•

DR. MAPUNDA, Angelo, Law and development for the people: stake holders’ participation in the Law Reforms, A Paper Presented at a Workshop to celebrate the 30th Anniversary of the Law Reform Commission of Tanzania held at the Serena Hotel, Dar es salaam on 28th November, 2013.

•

FAUZ, Twaib, Legal Empowerment of the Poor: Access to Justice and Rule of Law.

•

MOHAMED, Chande (2012), Keynote Address of Chief Justice on the occasion of the Annual Conference of the Tanganyika Law Society, 17 February 2012, Arusha, Tanzania.

•

MSENGI B.M (2006), Access to justice in Tanzania: Do procedural technicalities hinder justice in Tanzania, An LLB dissertation, Faculty of Law Mzumbe University.

•

NYALALI, Francis (1994) the ‘changing role of Tanzania Bar’, Tanzania Lawyer, September- December 1994.

•

RAMADAN, I. (2007), The Court of Appeal of Tanzania: Its Positivistic Policy and Justice, An LL.M Dissertation, Faculty of Law, University of Dar es salaam.

•

ROBERT, Makaramba (2012), “Breaking the Mould; Addressing the Practical and Legal Challenges of Justice Delivery in Tanzania: Experience from the Bench, TLS.

•

The Law Reform of Tanzania (2010), The civil justice review Report.

•

The Legal and Human Rights Center (2008), Justice Watch Annual Report. 45

INTERNET SOURCES •

http://www.judiciary.go.tz/templates/system/css/system.css.

•

http://www.ockadvocates.com/2013/04/prosedural-technicalities-versus-substantivejustice://UwSagPmSySo.

•

http://www.lrct.go.tz/civil-justice-reform-programe.

46

APPENDICES Appendix 1

Photo extract: The Court of Appeal of Tanzania premises at Luthuli Street, Kivukoni Front Dar-es salaam.

47

Appendix 2 Questionnaire for External Public, Law Students, Law Lecturers, Advocates And Judicial Officers. Dear Respondent, My names are ANDREA BERIA M; I am a fourth year student at St.Augustine University of Tanzania pursuing Bachelor of Laws [LLB]. Currently I am doing a research for partial fulfillment of Bachelor Degree award on Dismissal of cases on Legal technicalities Versus Substantive Justice; a critical analysis of the Court of Appeal of Tanzania Decisions. I kindly ask you to avail information regarding my topic. The information supplied hereunder will be used only for the purpose of this research and not otherwise. Personal Details of Respondent. Put tick [ ] where in the appropriate box and fill in the blanks. 1. Age (Years) a) 18-30 b) 31-49 [ ] c) 50… 2. Gender ……………………………………………. 3. Qualification ………………………………………. 4. Residence …………………………………………. 5. What do you understand by the Court of Appeal of Tanzania? ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… …………………………………………………………………………………………………… 6. What are the functions of the Court of Appeal of Tanzania? ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… 7. Does the Court of Appeal of Tanzania administer Justice properly? Yes [ ] or No [ ] Explain ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… 48

……………………………………………………………………………………………………… ……………………………………………………………………………………………………… 8. Do you understand the term legal technicalities? Yes [ ] or No [ ] Explain ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… 9. Does the Court of Appeal of Tanzania dismiss cases on legal technicalities? Yes [ ]

or No [ ]

Explain ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… 10. What are the causes of legal technicalities in courts of law? ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… 11. Do legal technicalities affect Justice? Yes [ ] or No [ ] What are the effects? ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… 12. Is there any solution for the above problem? Explain ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… ……………………………………………………………………………………………………… I sincerely thank you.

49

Appendix 3 Interview Guideline Research Title: Dismissal of cases on Legal technicalities Versus Substantive Justice; a critical analysis of the Court of Appeal of Tanzania Decisions. 1. Name of the respondent [optional] 2. Position in the researched institution. 3. Gender. 4. Age. 5. Do you know The Court of Appeal of Tanzania? What is it? 6. What are its functions? 7. Do you understand the term legal technicalities? What is it? 8. Does the Court of Appeal of Tanzania dismiss cases on Legal technicalities? 9. What are the causes of legal technicalities in courts of law? 10. What is the durable solution for the above problem?

50