The Government has made comprehensive review and amendment of the Tanzania Civil Procure Law as well as Court of Appeal Rules, to among others, provide for application of technology in filing of cases and other documents. The amendments were done through the Civil Procedure Code (Amendment of the First Schedule) Rules, 2019 (GN No. 381 of 2019) and Tanzania Court of Appeal (Amendment) Rules, 2019 (GN No. 344 of 2019).
The changes come amidst the earlier regulations issued in 2018 namely, the Judicature and Application of Laws Act (Electronic Filing) Rules, 2018 (Government Notices No. 148 of 2018) that provided for electronic filing of documents to the Courts in Tanzania. Further, there has been number of other initiatives by the Tanzania Judiciary to embrace technology. Such measures include Tanzania Advocates Management System which allows online renewal of practicing certificates for advocates. Also, the Judiciary Statistical Dashboard System (JSDS) which is a web portal for online Case Registration and Administration.
Amendment of the Civil Procedure Code
The Amendment to the Civil Procedure Code came into effect on 10th May, 2019 when the Chief Justice in consultation with the Minister for Constitution and Legal Affairs published the Civil Procedure Code (Amendment of the First Schedule) Rules, 2019 (GN No. 381 of 2019).
According to Order IV which deals with institution of suits in court, amendment has been made in Rule 1 and 3 to permit institution of suit to be done by presenting a plaint electronically or manually. Accordingly, the assignment of cases to Judges or magistrates would likewise be done electronically or manually. Indeed, the conventional substituted service which was mainly done through Publication on Newspapers can now be effected by way of an email.
Another key feature of the amendment of the Civil Procedure Code is the mandatory requirement imposed upon the Courts to refer every civil action for negotiation, conciliation, mediation or arbitration or similar alternative procedure, before proceeding for trial. Under the amendments, parties are given 14 days to appoint a mediator failure of which the Court would appoint on their behalf.
Specifically, the amendments require mediators, conciliators or negotiators to facilitate communication between or among the parties to the dispute in order to assist them in reaching a mutually acceptable resolution. The time provided for resolution of dispute by way of court led mediation or conciliation or negotiation has been limited to only 30 days. If resolution between parties has not been reached by way of settlement agreement or by way of a declaration of mediator that that further mediation or conciliation is not worthwhile then, matter shall be revered to the Court for trial.
Amendment of Court of Appeal Rules
The amendment of the Court of Appeal rules which came into effect on 26th April, 2019 was done along with the amendment of the Civil Procedure Code. In a move to embrace technology within judiciary, the Rules also provides for electronic filing of documents to the Court of Appeal of Tanzania.
Moreover, the amendments of the Court of Appeal Rules come as a measure to relax the practice technicalities that saw most of cases being disposed on technicalities. Most of all the amendments puts into effect the overriding objective principle which was earlier effected through the Written Laws (Miscellaneous Amendment) Act (No.3), 2018 (Act No. 8 of 2018). The principle requires Courts to facilitate just, expeditious, proportionate and affordable resolution of all disputes brought before the Courts in Tanzania.
According to the amended rule 11(6), a single Justice of the Court of Appeal may, for good cause, make an ex-parteorder for stay of execution pending hearing and determination of the application. Consequently, the rules introduced new statutory form (form J) for the for filing an ex-parte or inter-partes stay of execution as well as a new template for filing certificate of delay (the form filed to certify the delay or exclusion of time in obtaining relevant court documents such as copies of proceedings, judgment, ruling, and decree or order) (form K).
In a bid to ensure the timely disposal of cases, the amendments have tightened the opportunity for a party to proceedings “to unreasonably” adjourn the case. Rule 38A has been added to restrict adjournment except where the circumstances are beyond the control of the party or parties. The rule further stipulates that, the fact that an advocate of a party is engaged in another court shall not be a ground for adjournment unless that advocate is appearing before a superior panel and informs the Registrar in advance at least one week before the date of hearing.
Illness of an advocate or his inability to conduct the case for any reason other than his being engaged in another court is no longer an excuse for adjournment. The party seeking adjournment based on advocate illness must satisfy the Court of Appeal that it could not have engaged another advocate in time to proceed with the case. In such circumstances where the court grants adjournment, the Rules requires the Court to fix the hearing date within the shortest period possible.
Furthermore, inline to ensuring timely disposal of Applications, a new Rule 39(10) has been added to allow the Court to make orders without detailed reasoned ruling, especially in cases where the Court’s decision is not potentially precedent -setting or does not require the interpretation of a rule, statute or common law.
The rules also cured the protracted procedural hitch on non-citation or incorrect citation of the law. For many years the non-citation or incorrect citation of the law has divided the court of appeal as to whether such defect is curable or non-curable defect. The regulations has now relaxed the practice by allowing such irregularity or omission to be ignored and the court may order that the correct law be inserted.
Not only that but also, the practice and procedural requirements such as allowing amendments to document where there is noncompliance to the prescribed court forms or procedure have been relaxed. For instance, Rule 83(7) has been added to allow a Party to the case upon application to the Court to amend the Notice of Appeal. Also, omitted documents in the record of appeal can be filed within 14 days without prior permission of the Court but, only upon informal permission of the Registrar of the Court.
Rule 106 relating to Written submission has been substituted. Upon lodging the appeal, the appellant is required to file written submissions to the court within 60 days. Failure to do so, the respondent may file written submission to oppose the appeal. The regulations also provide for the parties to make oral submission but only for 30 minutes unless the court directs otherwise. The party who files the written submission, and is absent when the case is called for hearing, will be considered as having appeared and argued his case.
Finally, the Amendments restricts the Court of Appeal to vary the decision of the subordinate court on matters which do not affect the merits or the jurisdiction of the High Court. This means, High court errors, defects or irregularity cannot be revised or substantially varied or be subjected to new trail if they do not touch the merits of the case.
FIN & LAW -Client Update, JUNE 2019 – Courts Adopt Technology, Reduces Technicalities
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