Wrong Citation of Law in Tanzania Cases

In September 2018, after the observation of the PO tsunami, Law No. 3 of 2018 on Written Laws (Various Amendments) and Law No. 8 of 2018 amended several important codes of civil procedure used in the handling of civil cases before the courts. The Act amended the Courts of Appeal Act (cap. 141), the Code of Civil Procedure (cap. 33), the Land Courts Act (cap. 216) and the Courts of First Instance Act (cap. 11). The amending Act did not abolish, replace or amend the Acts. It left intact all the provisions contained in the civil laws, but introduced only what it claimed to be the overriding objective of all civil proceedings, namely the fair, expeditious, proportionate and affordable resolution of civil disputes. The law required all courts, lawyers and parties involved in litigation to promote these objectives. It was clear that the Court would not take into account the POs that were raised on all occasions. Prior to recent changes, it was not uncommon for POs to be raised at all stages of the proceedings when they appear before the Court of Appeal, so surprising that no application were raised.

This practice not only delays well-founded justice jurisprudence, but also results in huge procedural delays, as appeals or motions are invariably refiled after requests for extensions of time have been processed, wasting invaluable resources and time for the court and the parties. The famous Mukisa principle on POs, a case that was heard in 1969 when there was no computer or internet, was not only misapplied, but also overused to dismiss cases. Tanzanian courts have long been known for suppressing cases, including appeals and requests for minor omissions such as errors in judges` names, incorrect or missing citation of a provision of the law, errors in decrees, minor typos in the names of parties to appeal, minor defects in jurat, missing pages of non-critical documents in the files, numbering errors in the files, Registrar`s error in the late certificate and the list goes on and on. Lawyers were also obsessed with such preliminary objections (POs), so court clerks asked lawyers why no POs had been filed. It was the beginning of the PO era. In general, the recently introduced overarching objective principle is new and is still being tested. The above-mentioned cases show that it is unforeseeable for the Court to permit and not to invoke this principle. Decisions such as those in Yakobo Magoiga Gichere, MTUWASA and TRA (op. cit.) reflect the Court`s spirit of incorporating the oxygen principle.

It is up to the Court of Appeal to choose the direction it intends to take in the jurisprudence, which will therefore pave the way for other younger courts, and it has started quite well, although some of the decisions discussed above are undesirable and contradictory. Only time will tell. (ii) The erroneous citation of the Act, section, paragraph, paragraph, non-citation or incomplete citation of the enabling provisions of the Act renders the application incompetent. “With the emergence of the principle of overriding purpose established by the Written Laws (Various Amendments) Act (No. 3) of 2018 [Act No. 8 of 2018], which now requires courts to deal with cases fairly and take into account substantive justice; Paragraph 45 of the Landstreitgerichtsgesetz (which prohibits the annulment of decisions based on errors not giving rise to a failure of law) should be given greater prominence in order to reduce excessive use of procedural details. The failure to identify the member who presided over the district court proceedings in the absence of the presiding judge did not result in a denial of justice for the applicant. The Court of First Instance decides definitively that this appeal should be dismissed in its entirety … (b) a President of the Tribunal appointed by the competent authority from among the members elected in accordance with point (a). Legal loopholes helped a resident of Mbeya, Fredy Mwakajilo, stay behind bars for the rest of his life for raping a minor girl at the age of two in a village in Kyera district.

Judges Engela Kileo, Sauda Mjasiri and Salum Massati concluded that the shortcomings, including discrepancies in the dates of commission of the offence, were irreparably flawed and affected Mwakajilo`s defence. In the two previous appeals in which a unilateral document was missing, the Court of Appeal could, in the interests of the party`s substantive justice, have ordered a delay to amend the Appeal Protocol, as was the case in 2018 Civil Appeal No. 78, Tanzania Revenue Authority v. ARMZ.