Legal Technicalities.

Speech by Justice (Rtd) January Msoffe, Chairman Law Reform Commission

Date: 25th January 2023 at the Johari Rotana Hotel in Dar es Salaam,

Book Launch of the Managing Advocate of MDM Law Group, Ally Kileo titled “Comprehensive Issues of Employment and Labour Law: Practice for Modern Business in Tanzania”.

INTRODUCTION

  • The words “legal technicality” are generally taken to represent strict adherence of statutes to determine the spirit of justice. These words are also echoed by Mr. Ally Kileo at pages 677 and 678 of his book in which he articulates that sometimes courts have embraced substantive justice in lieu of strict application of the law.  He points out legal technicalities which may either enable or restrict access to justice like statutes of time limitation, rules of evidence, etc.
  • The whole purpose of law and rules of court is to ensure that the affairs of the court during the administration of justice are carried out in an orderly fashion with reasonable degree of certainty that prescribed acts have been duly complied with by the parties in the interest of justice-S. Int.Bank ltd v Imano(Nig.)Ltd (2000) II NWLR (pt. 679) 620 at 634.
  • However, it has also been judicially noted that strict and unreasonable adherence to technicality in the administration of justice shuts out justice-Akeredolu v Abraham and Others (2018) LPELR-44067(SC). This point is also highlighted by Mr. Ally Kileo at pages 677-678 of his book in which he warns that strict application of the law may sometimes impede the administration of justice.

 

A FEW STATUTES AND DECISIONS ON TECHNICALITIES

  • Article 107A and 107B of the Constitution of the United Republic of Tanzania, 1977-especially 107(2) (e) thereof on dispensing justice without being tied up with technicalities provisions which may obstruct dispensation of justice.
  • The Tanzania Court of Appeal Rules-especially Rule 4(1) where the court may direct a departure from the rules in the interest of justice and rule 115 on ignoring immaterial errors.
  • In a similar vein, please read section 37(2) of The Magistrates’ Courts Act, section 45 of the Land Disputes Courts Act, Zuberi Musa v Shinyanga Town Council, CAT, Civil Appeal No. 100/2004, The Judge Incharge High Court Arusha v N.I.N. Munuo, CAT Civil Appeal No. 45 of 1998; etc.

NB:     In essence, the above legislations and authorities underscore one major point, that is, courts should dispense substantial justice without undue regard to technicalities.

OVERRIDING OBJECTIVE

  • In spite of the existence of laws and decisions as aforementioned, albeit briefly, civil cases were, and presumably still are, not decided justly and at proportionate cost – hence the introduction of the overriding objective (the “oxygen principle” as is normally referred to in Kenya).
  • The purpose of the overriding objective is to ensure that civil litigation and dispute resolution is fair, fast and is in expensive.
  • In effecting the principle in Tanzania amendments were made to the Appellate Jurisdiction Act and the Civil Procedure Code vide the Written Laws(Miscellaneous Amendments)(No.3) Act, 2018 (Act No.8 of 2018).
  • Essentially the principle was introduced to bring in a “fresh impetus” in the administration of justice.

 

THE WAY FORWAD

  • In charting the way forward the observations made many years ago in Cropper v Smith (1884) 26 ch.D.700 at page 710 and Coles and Ravenger (1907) I KB I are still pertinent, relevant and instructive to date.
  • In Cropper Lord Bowen stated:-

“It is a well-established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights…I know no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party.  Courts do not exist for the sake of discipline, but for deciding matters in controversy”. (Emphasis added.)

 

  • And in Coles Justice Collins stated:-

“….Although I agree that a court cannot conduct its business without a code of procedure, I think that, the relation to the rule of practice to the work of justice is intended to be that of handmaid rather than that of mistress and the court ought not to be so bound and tied by rules of procedure as to be compelled to do what will cause injustice to the particular case..” (Emphasis added.)

REMEDIES

  • Ally Kileo discusses this subject at pages 707-718 of his book. In the process, he lays out the remedies applied to cure fundamental defects in civil cases.
  • Among other topics on the subject, he cites two schools of thought on non-citation and wrong citation of the enabling provision of the law, to wit, defects make an application incompetent and the other school of thought which articulates flexibility in dealing with such cases.

CONCLUSION

  • As already observed, even before the enactment of Act No.8 of 2018 the idea of dispensing justice justly and without delay and undue regard to technicalities was always underscored and emphasized in both statute and case law. Yet, the problem has always persisted.  In my view, for the principle to succeed there must be a change in the MINDSET of those entrusted with the duty of dispensing justice.
  • In illustrating this point I will give two examples:

One, when I was Judge in-charge, High Court Arusha (1999-2004) Samatta, C.J. once on a visit to Arusha had occasion to address members of the Tanganyika Law Society Arusha Chapter.  In answer to “an accusation” that courts were becoming too technical in deciding cases he posed this question to them.  Who writes judgments or Rulings? In the process, he told them that they are actually “written” by the parties, especially those represented by counsel, because they are the ones who raise the technicalities in courts.  And once they are raised courts are duty bound to deal with them.   He went on to tell them that if parties were to desist from raising unnecessary technicalities justice would be delivered without much delay and at affordable cost.

Apparently Mr. Ally Kileo, more or less, discusses this same point at page 718 of his book in which he asks judges and magistrates to be strict with “errant advocates.”

Two, I was a part time Justice of Appeal in Seychelles from 2012 to 2017.  In the course of working there, to the best of my recollection, as a Court of Appeal we never struck out any appeal on technicalities.  All appeals went on to full hearing.

  • So, if from the very beginning of a case, every party believes that the case should proceed to full hearing, I believe, unnecessary technicalities can be avoided. In the process, justice will be delivered without delay and unnecessary cost.
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