The Tanzania Court of Appeal (Amendment) Rules, 2019 came into force on 26 April 2019 vide Government Notice No. 344 published on 26/4/2019, and shall be read as one with the Tanzania Court of Appeal Rules, 2009. In this blog post, I highlight some of the key amendments introduced in order to facilitate timely dispensation of justice without undue regard to procedural technicalities in accordance with Article 107A(2)(e) of the Tanzanian Constitution.
Overriding objectives Rule 2. In administering the Tanzania Court of Appeal Rules, 2009 (“the principal Rules”), the Court of Appeal of Tanzania (‘the Court’) shall seek to give effect to the overriding objective (or, the “oxygen principle”) as provided for under sections 3A and 3B of the Appellate Jurisdiction Act, Cap. 141. In essence, the oxygen principle requires the Court to administer justice without undue regard to procedural technicalities. It aims to avoid unnecessary miscarriage of justice by allowing the Court more discretion in administering the rules. Although the oxygen principle was recognised in Martin Kumalija & 117 Others v. Iron and Steel Ltd, Civil Application No. 70/18 of 2018 (Court of Appeal of Tanzania) as “a vehicle for attainment of substantive justice”, the Court warned that the principle will not help a party to circumvent the mandatory rules of the Court.
New statutory forms Rule 11(4A). An application for an ex parte or inter-parte stay of execution shall be substantially in the Form J; and a certificate of delay in Form K. Forms J and K are specified in the First Schedule to the Tanzania Court of Appeal (Amendment) Rules, 2019 (“the amendment Rules”).
E-filing of documents Rule 12 (2). A document required to be filed in the Court may be filed electronically, in which case the Judicature and Application of Laws (Electronic Filing) Rules shall apply with the necessary changes being made.
Adjournments Rule 38A. Adjourning cases in the Court is harder than ever before, thanks to this new Rule. A party will not obtain an adjournment unless the situation warranting the adjournment is beyond the party’s control. Not even when a party’s advocate is reported to be engaged in another court, unless the engagement is before a superior panel and the advocate informs the Registrar of the Court at least one week prior to the date of hearing. Further, illness of an advocate shall not be a ground for adjourning a case unless the Court is satisfied that the party seeking to adjourn the case could not have engaged another advocate in time. If, without prompting from any party, the Court decides to adjourn, the reason for doing so shall be recorded and a new hearing date fixed within the shortest time possible.
Orders without detailed reasoned ruling Rule 39(10). For the purpose of ensuring prompt disposal of applications filed before the Court, the amendment Rules permit Justices of the Court to make orders without giving “detailed reasoned ruling”; this is particularly so in situations where the decision “is not potentially precedent-setting” or “does not require the interpretation of a rule, statute or common law”.
Omission to cite specific provision of the law Rule 48(1). As long as the Court has the jurisdiction to grant the order sought in an application filed before it, the omission to cite any specific provision of the law or the irregularity of citing a wrong provision of the law can be ignored but the Court may order the insertion of the correct provisions of the law.
Collection of copy of proceedings Rule 90(5). In anticipation of filing an appeal from the High Court or tribunal having original, revisional or appellate jurisdiction in civil cases, the intended appellant must take steps to collect a copy of proceedings from Registrar of the High Court or the tribunal within 14 days after the expiration of 90 days from the date the appellant requested for the copy.
Inclusion of omitted documents in the record of appeal Rule 96(6), (7) and (8). An appellant has 14 days to informally, but with the permission of the Registrar, include a document omitted from the ‘record of appeal’ by filing an ‘additional record of appeal’. That time period starts counting from the date of lodging the record of appeal. Also, “where the case is called on for hearing [and] the Court is of opinion that [a specified] document is omitted from the record of appeal”, the Court may allow the appellant to lodge an additional record of appeal. After this, “the Court shall not entertain any similar application on the same matter.”
Presentation of written submissions Rule 106. There are new, elaborate requirements for presenting written submissions before the Court. In precis, on the appellant failing to file written submissions within the set time, the respondent is allowed to file written submissions in opposition to the appeal or application within 14 days thereafter. The time limit for presenting oral arguments is limited to no more than 30 minutes unless the Court directs otherwise. Instructively, a failure to file written submissions or a reply thereto is not a ground for requesting expansion of time for oral submissions. What’s more, the fact of lodging of written submissions is tantamount to making an appearance (in the Court).
Immaterial errors, defects or irregularities in civil matters Rule 106. Any error, defect or irregularity in a decision of the High Court not affecting the merits or the High Court’s jurisdiction shall not be a ground for the Court of Appeal to revise or substantially vary on appeal a judgment, decree or order of the High Court. Neither will such immaterial error be a ground for ordering a new trial.
At the apex of the court hierarchy in Tanzania is the Court of Appeal of Tanzania. The 2019 amendments to the rules of this Court aim to facilitate timely delivery of justice without unjustified regard to technicalities. Indeed, the amendments reflect the spirit of Article 107A(2)(e) of the Constitution of the United Republic of Tanzania, 1977 that enjoins upon the court “to dispense justice without being tied up with technical provisions which may obstruct dispensation of justice”.
• • •
If you would like further information on any issue raised in this blog post, send me a message via this online contact form.
• • •
This blog post is intended as a general overview and discussion of the topics and issues dealt with. The information is not intended to be, and should not be used, as a substitute for seeking legal advice or other professional advice in relation to any particular situation.
Subscribe to Tanzania Law Blog – Paul Kibuuka‘s insights into Tanzanian law and the legal issues relating to doing business or investing in Tanzania.
Tanzania Law Blog - Paul Kibuuka's insights into Tanzanian law and the legal issues relating to doing business in Tanzania. 