THE UNITED REPUBLIC OF TANZANIA THE LAW REFORM COMMISSION OF TANZANIAlrct.go.tz/wp-content/uploads/2013/05/FINAL REPORT.pdf · · 2013-05-13THE UNITED REPUBLIC OF TANZANIA THE LAW

THE UNITED REPUBLIC OF TANZANIATHE LAW REFORM COMMISSION OF TANZANIA

PRESENTED TO THE MINISTER FOR JUSTICE AND CONSTITUTIONAL AFFAIRS DARE S SALAAM

May, 2013

REPORT OF THE COMPREHENSIVE REVIEW OF CIVIL JUSTICE SYSTEM IN TANZANIA

The Law Reform Commission of Tanzania in accordance with its mandate as provided under Section 4(2) and 9(1) of the Law Reform Commission of Tanzania Act, Cap.171 [R.E 2002] and acting on its own accord conducted a study the Comprehensive Review of Civil Justice System in Tanzania.

The main objective of the Commission in undertaking this study was to improve the machinery of civil justice in Tanzania by means of reforms in jurisdiction, procedure, regulation of private legal practice and court administration and in particular to reduce delay, cost and complexity.

The Commission in line with section 14(1) of the Law Reform Commission of Tanzania Act, Cap.171 [R.E 2002] is honoured to submit to you a Report on Comprehensive Review of Civil Justice System in Tanzania.

I remain,

Yours faithfully,

Telegrams “TUMESHERIA “. Telephone 2111387/2123533/4 Fax No. 2123534

Website: www.lrct.go.tzE-mail: [email protected] reply please quote:

Ref. No. CA.71/72/01 Hon. Mathias M. Chikawe (MP),Minister for Constitutional and Legal Affairs,P.O. Box 70069,DAR ES SALAAM.

P.O. Box 3580,

DAR ES SALAAM.

20th February, 2013

THE UNITED REPUBLIC OF TANZANIATHE LAW REFORM COMMISSION OF TANZANIA

RE: TRANSMITTAL LETTER IN RESPECT OF THE COMPREHENSIVE REVIEW OF CIVIL JUSTICE SYSTEM IN TANZANIA

.......................................................Hon. Justice Aloysius B. Mujulizi

CHAIRMAN

....................................................Ms. Esther J. Manyesha FULL TIME COMMISSIONER

....................................................Prof. Sufian H. BukururaFULL TIME COMMISSIONER

....................................................Dr. Eve Hawa SinarePART TIME COMMISSIONER

.......................................................Justice (rtd) Ernest L.K. Mwipopo FULL TIME COMMISSIONER

.......................................................Mr. Albert A. MsangiFULL TIME COMMISSIONER

.......................................................Dr. Benedict T. MapundaPART TIME

TABLE OF CONETENTS

LIST OF ABBREVIATIONS ...........................................................................................ixLIST OF STATUTES............................................................................................................xPRINCIPAL LEGISLATION ...........................................................................................xSubsidiary Legislation ..........................................................................................................xiLaws from Other Jurisdictions ...........................................................................................xiList of Cases ........................................................................................................................xiiCOMMISSIONERS: .........................................................................................................xivACKNOWLEGDEMENT .............................................................................................xviCHAPTER ONE ................................................................................................................11.1 Introduction .............................................................................................................11.2 Review of the Civil Justice System under the BEST Programme ...................21.3 The Civil Justice Laws ............................................................................................31.4 Stages of Civil Justice Review: 2005-2012 ...........................................................31.5 Position Paper on the Court of Appeal Rules ..................................................61.6 Consultations with Stakeholders. ..........................................................................61.7 Appointment of Consultants .................................................................................7 CHAPTER TWO ...................................................................................................10

2.1 Introduction ..........................................................................................................102.2 Civil Procedure Code, Cap. 33 [R.E. 2002] ......................................................10 2.2.1 Weaknesses in CPC ..............................................................................................102.2.2 Observations and Recommendations on the CPC ....................................112.2.3 Challenges of Management of Court Business ........................................112.2.3.1 Observations and Recommendations in the Position Paper ................................122.2.3.2 Stakeholders’ Observations and Recommendations ..........................................122.2.3.3 Observations by the Commission .......................................................................122.2.3.4 Recommendations on Management of Court Business ......................................132.2.4 Status of “Mentions” in Court Proceedings .............................................142.2.4.1 Observations on Status of Mentions in the Position Paper ................................ 142.2.4.2 Stakeholders’ Observations and Recommendations on Mentions ......................142.2.4.3 Commission’s Recommendations: .....................................................................142.2.5 Provision on an Overriding Objective (Sections 1-5 of the CPC) ............14

2.2.5.1 Observations on Overriding Objective of Procedural Law in the Position Paper . .............................................................................................................................152.2.5.2 Stakeholders’ Observations and Recommendations on Overriding Procedural Law ...................................................................................................152.2.5.3 Recommendations on Overriding Objective of Procedural Law: .......................162.2.6 Pecuniary Jurisdiction of Courts and Commencement of Suits ...............162.2.6.1 Stakeholders’ Observations and Recommendations on where suits shall commence ...........................................................................................................172.2.6.2 Recommendation: ...............................................................................................17

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2.2.7 Objections to Jurisdiction (Section 19) and Other Objections ...........172.2.7.1 Stakeholders’ Observations and Recommendations ....................................182.2.7.2 Commission’s Recommendation on Objections ..........................................182.2.8 Delays of Cases .................................................................................182.2.8.1 The Delays Caused by Unnecessary Adjournments ....................................202.2.8.1.1 Recommendation: ........................................................................................202.2.8.2 Need to Furnish Reasons When Courts Grant Adjournments .....................202.2.8.2.1 Recommendations: ......................................................................................202.2.8.3 Provisions to Guard against Indefinite Adjournments of Cases ..................212.2.8.3.1 Recommendations: ......................................................................................212.2.8.4 Need to Introduce Affidavit Evidence at Institution of Suits to Speed up ....... Hearing of Civil Cases .................................................................................212.2.8.4.1 Recommendation: ........................................................................................222.2.8.5 Delays Occasioned by Failure of the Plaintiff to Collect Summons to Serve . on Defendants ..............................................................................................222.2.8.5.1 Recommendation on the duty of Plaintiff to collect summons and to serve ... on Defendants: .............................................................................................232.2.8.6 Duty of Parties to Serve Court Processes and Pleadings to the Other Party Observations: ...............................................................................................232.2.8.6.1 Recommendations: ......................................................................................242.2.8.7 Dealing with Delays Occasioned When Case Files are called by Superior .... Courts ..........................................................................................................252.2.8.7.1 Recommendations .......................................................................................262.2.8.8 Alternative Dispute Resolution (ADR) .......................................................272.2.8.8.1 Recommendation: ........................................................................................272.2.9 Representative Suits (Order I CPC) ...................................................272.2.9.1 Stakeholders’ Recommendations on Representative Suits ..........................282.2.9.2 Commission’s Recommendation: ................................................................282.2.10 Procedure of Admission of Pleadings/Claims (Orders II; IV and VII ... CPC) ..................................................................................................292.2.10.1 Observations on Admission of claims: ........................................................302.2.10.2 Observation and Recommendation on Admission of Pleadings/Claims in the Position Papers .............................................................................................302.2.10.3 Stakeholders’ Recommendations .................................................................312.2.10.4 Commission’s Recommendations: ...............................................................312.2.11 Observations on Pleadings Generally ................................................322.2.11.1 Stakeholders’ Observations and Recommendation on Pleadings ................322.2.11.2 Recommendations on Pleadings Generally ..................................................322.2.12 The Use of Affidavits .........................................................................342.2.12.1 Stakeholders’ Recommendations on Affidavits ............................................342.2.12.2 Recommendations on Affidavits ..................................................................342.2.13 Observations on Verification of Affidavits .........................................35

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2.2.13.1 Recommendations on Verification of Affidavits ..........................................352.2.14 Interlocutory Orders (scattered in Sections 8; & 68; Order XXV ........ security for costs; XXXVI arrest and attachment before judgement; .. and XXXVII Temporary Injunctions, Declaratory Orders and ............ Interlocutory orders) ..........................................................................352.2.14.1 Observations on Interlocutory Orders: .........................................................362.2.14.2 Observation and Recommendation on Interlocutory Orders in the Position .. Paper ............................................................................................................372.2.14.3 Stakeholders’ Observation and Recommendations on Interlocutory Orders .. ......................................................................................................................372.2.14.4 Recommendation on Interlocutory Orders: .................................................372.2.15 Service of Summons (Order V) .........................................................382.2.15.1 Observation on Service of Summons: ..........................................................382.2.15.2 Stakeholders’ Observations and Recommendations on Service of Summons ......................................................................................................................382.2.15.3 Recommendation on Service of Summons: .................................................392.2.16 Moderating the Rigours of the Adversarial System ...........................392.2.16.1 Observation on Adversarial System: ............................................................392.2.16.2 Observation and Recommendation on Adversarial System in the Position .... Paper. ...........................................................................................................392.2.16.3 Stakeholders’ Recommendation on Adversarial System .............................412.2.16.4 Recommendation of the Commission on Rigours of Adversarial System ..412.2.17 Remedies of Review, Reference, Revision or Appeal for Aggrieved ... Parties should this be with Appeals ...................................................412.2.17.1 Observations:................................................................................................412.2.17.2 Stakeholders’ Recommendations on Remedies for Aggrieved Parties ........412.2.17.3 Commission’s Observations .........................................................................422.2.18 Rule Making Power of the Chief Justice ...........................................422.2.18.1 Observation: .................................................................................................422.2.18.2 Stakeholders’ Recommendation on Rule Making Procedures .....................422.2.18.3 Recommendation: ........................................................................................422.2.19 Summary Judgments ..........................................................................432.2.19.1 Observation on Summary Judgments: .........................................................432.2.19.2 Observation and Recommendation on Summary Judgments in Position ....... Paper ............................................................................................................432.2.19.3 Stakeholders’ Recommendation ...................................................................442.2.19.4 Recommendations on Summary Judgments: ...............................................442.2.20 Case Speed Tracks .............................................................................44 Position Paper Observation on Speed Tracks of Cases ................................442.2.20.1 Observations: ...............................................................................................45

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2.2.20.2 Recommendation: ........................................................................................462.2.21 Discovery and Inspection Order XI ...................................................462.2.21.1 Observation on Discovery and Inspection: ..................................................472.2.21.2 Stakeholders’ Recommendations on Discovery and Inspection ..................472.2.21.3 Commission’s Recommendation on Discovery and Inspection ...................472.2.22 Judgments and Orders ........................................................................472.2.22.1 Observations on Judgments and Orders .......................................................472.2.22.2 Stakeholders’ Observations and Recommendations on Judgments and .......... Orders ..........................................................................................................482.2.22.4 Recommendations on Judgments and Orders: .............................................492.2.23 Appeals ..............................................................................................492.2.23.1 Observations on Appeals: ............................................................................492.2.23.2 Observations and Recommendations on Appeals in the Position Paper ......512.2.23.3 Stakeholders’ Observations and Recommendations on Appeals .................522.2.23.4 Recommendations ........................................................................................532.2.24 Limitation Periods for purposes of Lodging Appeals ........................532.2.24.1 Observations: ...............................................................................................532.2.24.2 Stakeholders’ Observations and Recommendations on Limitation Periods .... within which to lodge Appeals ....................................................................542.2.24.3 Recommendation: ........................................................................................542.2.25 Judicial Review ..................................................................................542.2.25.1 Importance of the Remedy of Judicial Review ............................................552.2.25.2 Stage of Leave in an application for Judicial Review ..................................562.2.25.3 Commission’s Observations on Judicial Review; ........................................572.2.25.4 Recommendations of the Commission; ........................................................582.3 THE APPELLATE JURISDICTION ACT, CAP 141 [R.E. 2002] ....602.3.1 Introduction .......................................................................................602.3.2 Observations ......................................................................................602.3.2.1 Court of Appeal as a Creature of Constitution and Statute ..........................602.3.2.2 Appeals to Court of Appeal from Statutory Tribunals .................................612.3.2.3 Power of the Court of Appeal to Review its own decision ..........................612.3.2.4 Right to Appeal to the Court of Appeal .......................................................622.3.2.5 Observations on the Leave to Appeal to Court of Appeal ............................622.3.2.6 Stakeholders’ Observation and Recommendation .......................................632.3.2.7 Recommendations on Appellate Jurisdiction Act: .......................................642.4 MAGISTRATES’ COURTS ACT, CAP 11 [R.E. 2002] ...................652.4.1 Observations: .....................................................................................652.4.2 Primary Courts Sitting with Assessors: .............................................652.4.2.1 Observations: ...............................................................................................652.4.2.2 LRCT Recommendation: .............................................................................662.4.3 Removal of Lay Magistrates from Primary Courts: ..........................662.4.3.1 Observations: ...............................................................................................66

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2.4.3.2 Recommendations ........................................................................................662.4.4 Advocates at the Primary Courts .......................................................672.4.4.1 Stakeholders’ Recommendation ...................................................................672.4.4.2 Recommendation: ........................................................................................672.4.5 District Courts ....................................................................................672.4.5.1 Stakeholders’ recommendation ....................................................................672.4.5.2 Observation by the Commission ..................................................................672.4.6 The Resident Magistrates Court: .......................................................682.4.6.1 Stakeholders’ recommendation ....................................................................682.4.6.2 Observations on Resident Magistrates Court: ..............................................682.4.6.3 Recommendation on Resident Magistrates Court: .......................................682.5 THE WARD TRIBUNALS ACT, CAP. 206 [R.E. 2002] ..................692.5.1 Observations: .....................................................................................692.5.2 Stakeholders’ observations and Recommendations ...........................702.5.3 Recommendations on Ward Tribunals: ..............................................712.6 THE LAW OF EVIDENCE ACT, CAP 6 [R.E. 2002] ......................712.6.1 Observation: ......................................................................................712.6.2 Observation on ICT and Law of Evidence: .......................................712.6.3 Stakeholders’ Observations and Recommendations ..........................732.6.4 Recommendations: ......................................................................................752.6.5 Position or Posture of Witnesses While Testifying ......................................752.6.5.1 The Chief Justice Circular Number 6 of 1997; ............................................752.6.5.2 Recommendation: ........................................................................................752.7 JUDICIARY ADMINISTRATION ACT, No. 4 of 2011 ....................762.7.1 Observations: .....................................................................................762.7.1.1 Recommendation: ........................................................................................762.7.2 Need to Prepare and Display Cause Lists to Inform the Members of .. the Public ...........................................................................................762.7.2.1 Recommendation .........................................................................................772.7.3 Need for Specific Provisions that Oblige Regular Stock-Taking ......... should Also Deal with Delays Occasioned by Cases which Disappear from Track .........................................................................................772.7.3.1 Recommendation .........................................................................................782.7.4 Keeping Records of Assignment of Cases to Judges and Magistrates 782.7.4.1 Recommendation: ........................................................................................792.7.5 Reserved Judgments and Rulings and the Need to Deliver Judgments within 90 Days ...................................................................................792.7.5.1 Recommendation: ........................................................................................802.8 GOVERNMENT PROCEEDINGS ACT, CAP. 5 [R.E. 2002] ..........802.8.1 Jurisdiction of the High Court in suits against the Government ........812.8.1.1 Stakeholders’ observation and Recommendation .........................................81

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2.8.1.2 Recommendations ........................................................................................812.8.2 Requirement of 90 days notice ..........................................................812.8.2.1 Stakeholders’ and Recommendation on 90 days notice ...............................822.8.2.2 Recommendations ........................................................................................822.8.3 Enforcement of Court Decree and Orders against Government ........822.8.4.1 Stakeholders’ observation and Recommendations .......................................832.8.4.2 Recommendations ........................................................................................832.9 THE LAW OF LIMITATION ACT, CAP. 89 [R.E. 2002] .................832.9.1 Observations ......................................................................................842.9.2 Stakeholders’ Observation and Recommendation .............................842.9.3 Recommendations .............................................................................842.10 ARBITRATION ACT, CAP.15 [R.E. 2002] ......................................852.10.1 The Arbitration Clause ......................................................................852.10.2 Stakeholders’ Observations and Recommendations ..........................872.10.3 Recommendations: ............................................................................882.11 COURTS VACATION RULES, G.N. NO. 307 of 1964 ....................932.11.1 Necessity of Court Vacations .............................................................932.11.2 Court vacation to be extended to courts subordinate to the High Court [Rule 2] ..............................................................................................942. 11.3 Duration and description of the Vacation [Rule 2] .............................952.11.4 Nomenclature ...................................................................................952.11.5 Law Day ...........................................................................................952.11.6 Recommendations ............................................................................952.12 COURT FEES RULES, G.N. No. 308 of 1964 ................................962.12.1 Stakeholders’ Observation and Recommendation .............................962.12.2 Recommendation ...............................................................................972.13 THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION .. FEES) RULES, G.N.NO. 275 of 1995 as Amended by GN. NO. 428 . OF 2005) ............................................................................................972.13.1 Position Paper Observation and Recommendation ............................972.13.2 Stakeholders’ Observation and Recommendations ............................972.13.3 Commission Observation .................................................................972.13.3 Recommendation ...............................................................................992.14 LANGUAGE OF THE COURTS RULES, G.N. NO. 307 OF 1964. .. ............................................................................................................992.14.3 Recommendations ...........................................................................1002.15 HIGH COURT REGISTRIES RULES, G.N. NO. 164 of 1971 ......1002.15.1 Stakeholders’ Observation and Recommendation ............................1002.15.2 Recommendations ...........................................................................1012.16 THE CIVIL PROCEDURE (APPEALS IN PROCEEDINGS ............. ORIGINATING IN PRIMARY COURTS) RULES, G.N. No. 312 of 1964 .................................................................................................102

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2.16.1 Adjournment ...................................................................................1022.16.1.1 Stakeholders’ Observation and Recommendations ....................................1022.16.1.2 Filing of Petition of Appeal ........................................................................1022.16.1.3 Stakeholders’ Recommendation .................................................................1032.16.2 Recommendations ...........................................................................1032.17 APPEARANCE BY OFFICERS OF THE GOVERNMENT RULES, G.N. No. 306 of 1964 ......................................................................1042.17.1 Stakeholders’ Observation and Recommendations .........................1052.18.2 Recommendations ...........................................................................1052.19 COURT BROKERS AND PROCESS SERVERS (APPOINTMENT, REMUNERATION AND DISCIPLINE) Rules, G.N .NO. 315 of ...... 1997 as Amended by G.N. NO. 176 of 2008 ...................................1052.19.1 Stakeholders Observations and Recommendations............................1062.19.1.1 Appointment and discipline of Court Brokers (Rule 8 and 9) ...................1062.19.1.2 Whether appointment of court brokers should comply with the provision of the Public Procurement Act, No. 21 of 2004 as amended by Act No. 7 of 20 . ....................................................................................................................1062.19.1.3 Qualification for court brokers ...................................................................1072.19.1.4 Fees, Charges and Allowance for court brokers. (Second schedule G.N No. . 176 of 2008) ...............................................................................................1072.19.1.5 Court brokers discharging the functions of Process Servers ......................1072.19.1.6 Complaint and Disciplinary Proceedings. (Rule12) ...................................1072.19.1.7 Bank Account .............................................................................................1072.19.1.8 Code of Conduct for court brokers .............................................................1082.19.1.9 Commission Observations .........................................................................1082.19.1.10 Recommendations ......................................................................................109 CHAPTER THREE ....................................................................................110 CONCLUSION AND RECOMMENDATIONS .............................1103.1 CONCLUSION ...............................................................................1103.2 RECOMMENDATIONS .................................................................1113.2.1 Civil Procedure Code, Cap. 33 [R.E. 2002] .....................................1113.2.2 Evidence Act, Cap. 6 [R.E. 2002] ....................................................1193.2.3 The Arbitration Act, Cap 15 [R.E. 2002] .........................................1193.2.4 Judiciary Administration Act, No. 4 of 2011 ...................................1233.2.5 The Government Proceedings Act, Cap. 17 [R.E. 2002] .................1243.2.6 The Magistrates’ Courts Act, Cap 11[R.E. 2002] ............................1253.2.7 The Ward Tribunals Act, Cap. 206 [R.E. 2002] ...............................1263.2.8 The Law of Limitation Act, Cap 89[R.E. 2002] ..............................1273.2.9 The Appellate Jurisdiction Act, Cap 141 [R.E. 2002] ......................1273.2.10 Courts Vacation Rules, G.N. No. 307 of 1964. ................................1273.2.11 Language of the Courts Rules, G.N. No. 307 of 1964 .....................128

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3.2.12 Appearance by Officers of the Government Rules, G.N. No. 306 of ... 1964 .................................................................................................1283.2.13 Court Fees Rules, G.N. No. 308 of 1964. ........................................1283.2.14 The High Court of Tanzania (Commercial Division Fees) Rules, 2011 ..........................................................................................................1283.2.15 Court Brokers and Process Servers (Appointment, Remuneration and Discipline) Rules, G.N .No. 315 of 1997 as amended by G.N. No. ..... 176 of 2008 ......................................................................................1283.2.16 Civil Procedure (Appeals in Proceedings Originating in Primary ....... Courts) Rules, G.N. No. 312 of 1964) .............................................1293.2.17 High Court Registries Rules, G.N. No. 164 of 1971 ........................130

LIST OF ABBREVIATIONS

A.G Attorney General ADR Alternative Dispute Resolution ATM Automated Teller MachinesBEST Business Environment Strengthening for Tanzania Cap Chapter CCA Chief Court Administrator CJTWG Civil Justice Technical Working Group CPC Civil Procedure CodeDCA Department for Constitutional Affairs (UK) GN Government Notice H.C.D High Court Digest ICC International Chamber of CommerceICT Information and Communications TechnologyLSRP Legal Sector Reform ProgrammeLRCT Law Reform Commission of Tanzania LRT Law Report of Tanzania MCA Magistrate Courts Act MOJCA Ministry of Justice and Constitutional AffairsNo. Number NGO’s Non Governmental Organizations

R.E. Revised Edition S Section TLS Tanganyika Law Society T.L.R Tanzania Law Reports TZS Tanzanian Shillings UK United Kingdom UNICITRAL United Nations Commissions on International Trade Lawvs. Versus

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LIST OF STATUTES Constitution of the United Republic of Tanzania Cap. 2 [R.E. 2002]

PRINCIPAL LEGISLATION

Appellate Jurisdiction Act, Cap. 141 [R.E. 2002]Arbitration Act, Cap. 15 [R.E. 2002]Attorney General (Discharge of Duties) Act No.4 of 2005Civil Procedure Code, Cap 33 [R.E. 2002]Employment and Labour Relations Act, No 6 of 2004Energy and Water Utilities Regulatory Authority Act, Cap 414 [R.E. 2002] Evidence Act, Cap. 6 [R.E. 2002]Government Proceedings Act, Cap. 17 [R.E. 2002]Judiciary Administration Act, No.4 of 2011 Judicial Service Act, No.2 of 2005Law of Limitation Act, Cap. 89 [R.E. 2002]Land Act, Cap. 113 [R.E. 2002] Land Disputes Courts Act, Cap. 216 [R.E. 2002]Labour Institutions Act, No. 6 2004Loans and Advances Realization Trust Act, Cap. 248 [R.E. 2002]Local Government (District Authorities) Act, Cap. 287[R.E. 2002] Local Government (Urban Authorities) Act, Cap. 288 [R.E. 2002]Magistrates Courts’ Act, Cap. 11[R.E. 2002]Notaries Public and Commissioners for Oaths Act Cap .12 [R.E. 2002]Oaths and Statutory Declarations Act, Cap.34 [R.E. 2002]Public Procurement Act, Act No. 21 of 2004Stamp Duty Act, Cap. 189 [R.E. 2002]Surface and Marine Transport Regulatory Authority Act, No. 9 of 2001Tax Revenue Appeals Act, Cap. 408 [R.E. 2002]Tanzania Civil Aviation Authority Act, No. 10 of 2003Village Land Act, Cap. 114 [R.E. 2002]Ward Tribunals Act, Cap. 206 [R.E. 2002]

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Subsidiary LegislationAppearance of Officers of the Government Rules, GN No. 306 of 1964

Attorney General (Discharge of Duties) Regulations, 2006

Commercial Court (Fees) Rules, G.N. No. 275 of 1999

Courts Fees Rules, GN. No. 308 of 1964

Courts Vacation Rules, G.N. No. 307 of 1964

Court Brokers and Process Servers (Appointment and Remuneration and Discipline) Rules GN No. 312 of 1964

Court Brokers and Process Servers (Appointment, Remuneration and Discipline) Rules, GN No. 315 of 1997 as Amended by G.N. NO. 176 of 2008

Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN. No. 312 of 1964

Courts Vacation Rules, GN. No. 307 of 1964

Court Fees Rules, GN. No. 308 of 1964

Employment and Labour Relations (Code of Good Practice) Rules 2007 GN No. 42 of 2007

Fees, Charges and Allowance for Court Brokers (Second schedule G.N No. 176 of 2008)

Government Proceedings (Procedure) Rules [Cap.5]

High Court of Tanzania (Commercial Division Fees) Rules, G N. No. 275 of 1995 as Amended by GN. No.428 of 2005)

High Court Registries Rules, GN. No.164 of 1971

Labour Institutions (Mediation and Arbitration) Rules, 2007 GN. No. 64 of 2007

Language of the Courts Rules, G.N. No. 115 of 1981

Law of Marriage (Matrimonial Proceedings) Rules, 1971 GN. No. 136 of 1971

Laws from Other Jurisdictions Arbitration Act, 1931 of United Kingdom

Constitution of the Republic of Kenya, 2010

Indian Code of Civil Procedure, 1908

India Information Technology Act, 2000

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List of Cases Chief Constable of North Wales Police v. Evans [1982] 1 W. L. R. 1155

Edward Mlaki Liston Matemba v The Region Police Commander, Misc. Civil Application No. 38 of 1979 (unreported)

Federico Gellini v. Jacco Du Plessis Safaris of South Africa & 6 Others, Commercial Case No. 67 of 2004, High Court of Tanzania, Commercial Division (unreported)

Felix Bwogi t/a Exim Promotion Services Ltd v. Registrar of Buildings, Civil Appeal No. 26 of 1989 Court of Appeal of Tanzania at Dar es Salaam (unreported)

Festo Balegele and 794 others (Applicants) vs. Dar es Salaam City Council, Misc. Civil Cause No. 90 of 1991, High Court of Tanzania at Dar es Salaam (unreported)

Haruna Mpangaos & 932 Others V. Tanzania Portland Cement Co. Ltd, Civil Appeal No.129 of 2008, Court of Appeal of Tanzania at Dar es Salaam (unreported)

John Magendo v. N.E. Govani [1973] LRT n. 60

K.J. Motors and 3 Others v. Richard Kishamba and Others, Civil Appeal No. 74 of 1999 (CA-DSM) (Unreported)

M/S E& Construction Co Ltd v. Permanent Secretary, Ministry Of Planning, Economy & Empowerment & Attorney General, Misc. Commercial Cause No. 13 Of 2007, High Court Of Tanzania, Commercial Division, Dar Es Salaam, (unreported)

NAFCO V. Mulbadaw Village & Others (1985) TLR 88

NBC v. Sadrun Meghji, Court Of Appeal of Tanzania at Dar es Salaam, and Civil Application No. 20 of 1997

Republic Ex-Parte Peter Shirima V Kamati ya Ulinzi na Usalama,

Subsidiary LegislationAppearance of Officers of the Government Rules, GN No. 306 of 1964

Attorney General (Discharge of Duties) Regulations, 2006

Commercial Court (Fees) Rules, G.N. No. 275 of 1999

Courts Fees Rules, GN. No. 308 of 1964

Courts Vacation Rules, G.N. No. 307 of 1964

Court Brokers and Process Servers (Appointment and Remuneration and Discipline) Rules GN No. 312 of 1964

Court Brokers and Process Servers (Appointment, Remuneration and Discipline) Rules, GN No. 315 of 1997 as Amended by G.N. NO. 176 of 2008

Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN. No. 312 of 1964

Courts Vacation Rules, GN. No. 307 of 1964

Court Fees Rules, GN. No. 308 of 1964

Employment and Labour Relations (Code of Good Practice) Rules 2007 GN No. 42 of 2007

Fees, Charges and Allowance for Court Brokers (Second schedule G.N No. 176 of 2008)

Government Proceedings (Procedure) Rules [Cap.5]

High Court of Tanzania (Commercial Division Fees) Rules, G N. No. 275 of 1995 as Amended by GN. No.428 of 2005)

High Court Registries Rules, GN. No.164 of 1971

Labour Institutions (Mediation and Arbitration) Rules, 2007 GN. No. 64 of 2007

Language of the Courts Rules, G.N. No. 115 of 1981

Law of Marriage (Matrimonial Proceedings) Rules, 1971 GN. No. 136 of 1971

Laws from Other Jurisdictions Arbitration Act, 1931 of United Kingdom

Constitution of the Republic of Kenya, 2010

Indian Code of Civil Procedure, 1908

India Information Technology Act, 2000

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Wilaya ya Singida, The Area Commissioner and The Attorney General 1983 TLR 375 (HC)

Tanzania Bena Co. Ltd v. Bentath Holdings Ltd, Commercial case No.71/2002 (unreported)

Transport Equipment V. Devram P. Vallambia, Civil Application, No.18 of 1993, Court of Appeal of Tanzania at Dar es Salaam (unreported)

Williamson Diamonds Limited vs. The Zonal Mines Officer Shinyanga and 11 Others- HC (Tabora) Miscellaneous Civil Cause Number 16 of 2004 (unreported)

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COMMISSIONERS:

The Law Reform Commission was established by the Law Reform Commission of Tanzania Act, Cap. 171 [R.E. 2002] and came into operation in 1983. The functions of the Commission include taking and keep under review all the laws of the United Republic of Tanzania with a view to systematic development of laws and their reform. In the exercise of its power, the Commission may also review any law or branch of the law and propose measures necessary for bringing that law or branch of the law into accord with current circumstances of Tanzania. The Commission also considers such reforms of the laws of Tanzania as may from time to time be referred to it by the Attorney General.

The current members of the Commission are:1. Hon. Judge Ibrahim H. Juma - (Chairman)2. Ms. Esther J. Manyesha - (FullTime Commissioner)3. Prof. Sufian H. Bukurura - (Full Time Commissioner)4. Mr. Albert A. Msangi - (Full Time Commissioner)5. Justice (RTD) Ernest L. K Mwipopo - (Full Time Commissioner)6. Dr. Eve Hawa Sinare - (Part Time Commissioner)7. Dr. Benedict T. Mapunda - (Part Time Commissioner)

The Secretary of the Commission is Ms. Winfrida B. Korosso.

SECRETARIAT:Ms. Angela A. Bahati Assistant Commissioner Secretary Ms. Agnes Z. Mgeyekwa Assistant Commissioner SecretaryMr. Adam J. Mambi Assistant Commissioner SecretaryMs. Caritas N. Mushi Principal Assistant Parliamentary Draftsman Ms. Anjela M. Shila Principal Legal Officer Ms. Marlin L. Komba Senior Legal Officer Ms. Zainab I. Chanzi Legal Officer Mr. Freddy A. Kandonga Legal Officer Ms. Kalekwa R. Kasanga Legal Officer Ms. Angela H. Shekifu Legal Officer

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Ms. Athanasia A. Soka Coordinator (BEST)

The Offices of the Commission are located at Luthuli Street, Haki House, and P.O. Box 3580, Dar-es-salaam, Tanzania. Telephone Number +255 22-2123533/4 or +255 22-2111387 Fax; +255 22 2123534E-mail: [email protected]: http://www.lrct.go.tz

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ACKNOWLEGDEMENT

This research has been fully supported by the Business Environment for Strengthening for Tanzania Programme. (BEST Programme) to whom the Commission would like to express its appreciation.

The Commission wishes to express its sincere appreciation to various people within and outside the Commission ie. Judiciary, Academicians,NGOs, Court brokers, Tanganyika Law Society, State Attorneys, Legal officers to mention just a few for their cooperation and time devoted in this endeavour.

The Commission is particularly indebted to the BEST Programme for its financial support to the project. The Commission would like once again to put on record its appreciation to leaders at all levels as well as members of the public in all regions in Tanzania mainland for their for their valuable comments and views which have actually enriched the Report.

In the final analysis, the Commission bears full and collective responsibility for both the form and content of this report.

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CHAPTER ONE

1.1 Introduction

By 1980s there was widespread agreement in Tanzania that state-led development programmes were failing and there was an increasing recognition that it was the private sector that is the real engine of business and economic growth. The Business Environment Strengthening for Tanzania (BEST) Programme was initiated in the year 2000 with assistance of the World Bank. BEST programme was intended to be a full-scale and integrated reform of the business environment and reducing the cost of doing business in Tanzania.

BEST Programme had the primary objective of minimizing regulatory and administrative constraints to entry and operation of businesses, and changing the culture of government from control to one of efficient facilitation. The Programme has five components, namely;

1. Achieving better regulation, with priority given to simplifying and speeding up the process of business registration, formalization and modernization of land administration processes and the modernization of labour laws with a view to creating flexible labour markets;

2. Simplifying and streamlining commercial dispute resolution so as to lower the cost of contract enforcement;

3. Strengthening the Tanzania Investment Centre so that it can more effectively serve the investing community;

4. Changing the culture and mindset of government functionaries towards private enterprise; and

5. Empowering private sector organizations to deliver effective advocacy in support of a better investment climate.

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An efficient and accessible civil justice system will enable more timely and less costly resolution of disputes. This will enable greater access to justice for all Tanzanians. Reforms to procedures governing the operations of the civil courts in Tanzania are necessary if delays in case disposal and complaints about the conduct of advocates are to be addressed.

1.2 Review of the Civil Justice System under the BEST Programme

The Review of the Civil Justice System under the BEST Programme has been designed to complement the initiatives under the Legal Sector Reform Programme (LSRP). LSRP is funded and administered by the MOJCA and the Judiciary as a separate programme. The Review of the Civil Justice System seeks to improve the machinery of civil justice in Tanzania by means of reforms in jurisdiction, procedure, regulation of private legal practice and court administration and in particular to reduce delay, cost and complexity. It aims to do so by undertaking a radical review of the business of the civil courts and private legal practice, and to make recommendations for the more efficient disposal of civil cases in keeping with public needs and expectations. The aim of the reform recommendations is to change the whole culture of civil litigation.

The whole process of the Review of the Civil Justice System was designed so as to adhere to the following salient guidelines:

1. To ensure that the review enjoys the support of key figures in legal sector.

2. To ensure that the review does not result in ‘reform of civil justice system for reform’s sake’ or wholesale ‘lifting’ of reforms from elsewhere and pasting them in Tanzania.

3. To identify what Court Users need and in particular the needs of the Private Sector in relation to length, expense and complexity of the litigation process.

4. To carry out wide-spread consultations at every stage of the review.

5. To carry out extensive publicity to attain maximum

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participation of stakeholders in the review process.6. To build up consensus within the legal community

(Judges, Registrars, Magistrates, Advocates, Court Brokers, Process Servers) on areas requiring reform.

7. To draw lessons from international best practice and comparative legal experience of other Commonwealth jurisdiction and beyond.

1.3 The Civil Justice Laws

Statutes falling within the scope of the review of civil justice system are not restricted to only one statute, the Civil Procedure Code, Cap. 33. The Civil Procedure Code is one of several statutes that regulate civil proceedings in Tanzania. Civil Justice covers diverse areas of procedural and substantive law. For example, land disputes are regulated by the Land Act, 1999; the Village Land Act, 1999 and the Land Court Dispute Settlement Act, 2002. Matrimonial disputes are regulated by the Law of Marriage Act, 1971 and the Law of Marriage (Matrimonial Proceedings) Rules, 1971. Civil justice laws also include labour disputes regulated by the Employment and Labour Relations Act, 2004, the Employment and Labour Relations (Code of Good Practice) Rules, 2007 GN. No. 42 of 2007, the Labour Institutions Act, 2004, and the Labour Institutions (Mediation and Arbitration) Rules, 2007 GN. No. 64 of 2007.

Apart from Statutes and Subsidiary Legislation, the scope of civil justice system is also about how courts and other judicial officers use those civil justice laws to dispense justice. The decisions of the courts are therefore an invaluable input in consultation leading to the reform of civil justice system and its laws. Often court decisions provide clear guidelines on where the rules have gaps (lacunae) or are inadequate and how to fill the gaps. Court decisions explain how the rules and procedures should be applied.

1.4 Stages of Civil Justice Review: 2005-2012

It is useful to introduce this report by pausing, and reflecting where the civil justice review begun, where we are and where we are going on the review

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of civil justice system of Tanzania. As we pointed earlier, the Review of the Civil Justice System is one of the components of reforms which were undertaken by the Government of United Republic of Tanzania under the Office of the Prime Minister and executed by the Law Reform Commission of Tanzania. In the review of the civil justice system, the Commission involved stakeholders who participated through the Civil Justice Technical Working Group (CJTWG). This working group provided their invaluable legal expertise on the way civil justice laws operate in practice and gave some indications on how the reforms are bound to affect the consumers of civil justice laws i.e. those likely to be affected by the changes in laws.

The first stage in this review was the preparation of a conceptual paper providing a case why Tanzania needed to reform her civil justice system. The concept paper identified the underlying force behind the need to reform to be the stark realization that trade and commerce are crucial to development of Tanzania and successful business and commercial environment in any country depends on an efficient and accessible civil justice system based on timely and less costly resolution of disputes through clear and simple civil justice laws. The Law Reform Commission worked very closely with the academic lawyers to develop this concept note. A team of Consultants led by Prof. S. E. Mchome of the Faculty of Law University of Dar- Es -Salaam was closely involved in the preparation of the concept paper dated way back in August, 2006.

Apart from the Commission, the concept paper on review of civil justice laws was also discussed by the Civil Justice Technical Working Group (CJTWG). Prominent members of this technical working group which was established to oversee the reform of civil justice system included Mr. Charles Rwechungura who was then the President of the Tanganyika Law Society (TLS). Other members were Dr. Fauz Twaib (TLS), Mr. Felix Kibodya (Tanzania Bankers’ Association), Mr. Ebenezer Mshana (Faculty of Law of the University of Dar es Salaam), Mr. Edwin Fussi (representing the Judiciary), Ms. Flora Tenga (LRCT) and Ms. Annemarie Kavishe (TLS).

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At its second stage, the Law Reform Commission compiled a Position Paper on Civil Justice Reform; dated December 2006. This Position Paper contained a number of recommendations on how to improve the Civil Justice System. The position paper was designed to raise issues on civil justice and in accordance with the Civil Justice Review Guiding Principles, provide a mechanism upon which the reform of the civil justice process can take place. Based on this understanding, it is important that stakeholders of the civil justice process become engaged in the process at the very beginning of the process. It is on this understanding that the position paper was compiled after a number of preliminary interviews with the stakeholders. The Position Paper was a detailed Report based on a thorough review of Tanzania’s civil justice laws, procedures and practice. It also explained, justified and recommended various courses of action. Amongst the many recommendations in the Position Paper included:

(i) how to avoid litigation where possible;(ii) making litigation less adversarial;(iii) making the Judges, Magistrates more in control of the civil

justice process;(iv) making litigation less complex in nature especially to layman

who may not understand the procedure well;(v) making the cost of litigation more affordable, predictable

and more proportionate to the value and complexity of individual cases;

(vi) Proposals to reform the management and structure of the court system; and

(vii) How to ensure that courts do apply to a satisfactory extent the provisions of the Civil Procedure Code that determine suits within very short time.

The Position Paper reviewed several laws that fall under the framework of civil justice laws. These included: the Civil Procedure Code, the Magistrates Courts Act, 1984, Advocates Act, Arbitration Act, Evidence Act, Government Proceedings Act, Appellate Jurisdiction Act, 1979 and the Court of Appeal Rules.

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Several subsidiary legislation falling under the Judicature and Application Act, 1961 were also reviewed by the Position Paper. These Rules include:- Appearances by Officers of the Government Rules, Courts Vacations Rules, Court Fees Rules, Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, Court Brokers and Process Servers (Appointments, Remuneration and Discipline) Rules, High Court Registries Rules, Language of Courts Rules, and the Commercial Court (Fees) Rules.

1.5 Position Paper on the Court of Appeal Rules

A separate Position Paper was prepared to review the Court of Appeal Rules. This position paper was prepared by Dr. Angelo Mapunda of the Faculty of Law, University of Dar es Salaam. Dr. Mapunda worked very closely with the Rules Committee of Court of Appeal headed by Nsekela J.A. The review of the Court of Appeal Rules has resulted in the promulgation of the Court of Appeal Rules, 2009 GN. Number 368 of 2009 by the Chief Justice of Tanzania.

1.6 Consultations with Stakeholders

The third stage of the review of civil justice system of Tanzania was consultative. This is where the stakeholders were consulted on the contents of observations and recommendations made in the Position Paper. Consultation were both structured (formal meetings and correspondents) and unstructured (inputs through emails, letters etc). Meetings were also organized to discuss the reform of the civil procedure and a number of issues, some of which are addressed in the position paper.

High Court Registrars were consulted at Giraffe Hotel in Dar es Salaam on 25th July 2007. Practicing Advocates were consulted during the Half Annual Meeting of the TLS on 10th August 2007. Hon. the Chief Justice, Justices of Appeal and those of the High Court were consulted on 16th August 2007. State Attorneys deliberated on the Position Paper on in Dar es Salaam. In the months of November and December 2007 the Commission travelled to Arusha, Dodoma, Mwanza and Mbeya to consult other stake holders.

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The views and recommendations of the stakeholders on the Position Paper were consolidated into report dated march 2008. The consolidated report reflected the views of the stakeholders had together with their recommendations on the Position Paper. Apart from Judges, Magistrates and Registrars, the following other stakeholders were consulted:

(i) State Attorneys and Advocates;(ii) Labour Officers;(iii) Court Brokers;(iv) Local Government Officers;(v) Businessmen, Entrepreneurs; and(vi) Non Governmental Organizations.

A special report was prepared based on the views of the various stakeholders whom the Law Reform Commission consulted on the Position Paper for the review of the civil justice system in Tanzania.

From the interviews and consultations, there appears to be some general consensus in certain areas about what the law should contain in order to ensure that the civil justice system does achieve the cherished hope of abiding by the principles of an acceptable Civil Justice System, that is, one that ensures delivery of justice without regard to the social or economic status of litigants, delivery of justice without undue delay or on a timely manner, and delivery of justice that is affordable and whose procedural laws are simple and understandable to the average litigant.

1.7 Appointment of ConsultantsThe fourth stage in the review of the civil justice system was the appointment of Consultants to draft appropriate Bills to reflect how the civil justice laws would look like once the process of their review comes to a conclusion. The Consultant or consultants were in this fourth stage required to produce recommendations for reform of the Civil Justice System in Tanzania taking into account of the observations and recommendations made in the Position Paper. The Consultants were also required to deliver (1) draft bills, rules and corresponding administrative reforms to the Courts, (2) show areas

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subject of amendments in the existing legislation, rules and corresponding administrative reforms to the Courts. Consultants were finally expected to come forth with a strategy for enactment of the laws, including a timeline.

On March 1, 2012 the Law Reform Commission of Tanzania appointed Hon. Chipeta J. (Rtd), Dr. Mapunda and Dr. Lamwai as consultants charged with the task to critically examine provisions of the civil justice laws and recommend necessary changes to realize the objectives of enacting an efficient and accessible civil justice system that is based on timely and less costly resolution of disputes through clear and simple civil justice laws. The consultants were also given the leverage to look into other Statutes and subsidiary legislation which in their opinion may have a bearing on the civil justice system. In their work the consultants identified the following subsidiary legislation to be related to the laws under civil justice system of Tanzania:

(i) Appearance of Officers of the Government Rules, GN No. 306 of 1964

(ii) Attorney General (Discharge of Duties) Regulations, 2006

(iii) Commercial Court (Fees) Rules, G.N. No. 275 of 1999

(iv) Courts Fees Rules, GN. No. 308 of 1964

(v) Courts Vacation Rules, G.N. No. 307 of 1964

(vi) Court Brokers and Process Servers (Appointment and Remuneration and Discipline) Rules GN No. 312 of1964

(vii) Court Brokers and Process Servers (Appointment, Remuneration and Discipline) Rules, GN No. 315 of 1997 as Amended by G.N. NO. 176 of 2008

(viii) Civil Procedure (Appeals in Proceedings Originating

in Primary Courts) Rules, GN. No. 312 of 1964

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(ix) Courts Vacation Rules, GN. No. 307 of 1964

(x) Court Fees Rules, GN. No. 308 of 1964

(xi) Employment and Labour Relations (Code of Good Practice) Rules 2007 GN No. 42 of 2007

(xii) Fees, Charges and Allowance for Court Brokers (Second schedule G.N No. 176 of 2008)

(xiii) Government Proceedings (Procedure) Rules [Cap.5]

(xiv) High Court of Tanzania (Commercial Division Fees) Rules, G N. No. 275 of 1995 as Amended by GN. No.428 of 2005)

(xv) High Court Registries Rules, GN. No.164 of 1971

(xvi) Labour Institutions (Mediation and Arbitration) Rules, 2007 GN. No. 64 of 2007

(xvii) Language of the Courts Rules, G.N. No. 115 of 1981

(xviii) Law of Marriage (Matrimonial Proceedings) Rules, 1971 GN. No. 136 of 1971

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CHAPTER TWO

2.1 Introduction

This Chapter provides detailed analysis of the laws and rules that were subjected to study under this project. It provides the gaps that exist in these legislation and recommendations on the ways to fill these gaps. The opinions of the stakeholders, consultants and the Commission are analysed before making recommendations on the best way to improve the civil justice system in Tanzania.

2.2 Civil Procedure Code, Cap. 33 [R.E. 2002]

As observed earlier, the Civil Procedure Code, 1966 (CPC) is the main, but not the only source of procedural law in civil matters in Tanzania Mainland. Enacted in 1966, the Code is largely modelled on the Indian Civil Procedure Code, 1908. Thus the Tanzanian Code of Civil Procedure is a statute in pari materia with the Civil Procedure Code of India. Since its enactment in 1966 the CPC has been vastly enriched by decisions of courts in Tanzania, academic commentaries as well as precedents from other common law jurisdictions. Any proposal to discard or completely overhaul the CPC must inevitably be based on overwhelming empirical and statistical evidence that the CPC has become a serious impediment to the administration of justice. Neither Dr. A. Mapunda, the consultant nor the Law Reform Commission found any such empirical justification to discard or overhaul the CPC at this juncture.

2.2.1 Weaknesses in CPC

The catalogue of weaknesses was recapitulated by Chief Justice Mohamed Othman Chande in his keynote address on the occasion of the Annual Conference of the Tanganyika Law Society, 17th February 2012 at Arusha as including, the adversarial process of justice, uneasy co-existence of procedures derived from Common Law, Customary Law and Islamic Law, and use of foreign language (English) which makes it the language of the law instead of Kiswahili the language of the people.

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Other weaknesses have been identified as including-1. Over-stretched, under resourced and overworked judicial personnel;

sparse and uneven national distribution of legal resources; lack of awareness of legal rights.

2. Inadequacy of financial and human resources.3. Unequal access to laws and legal information; very limited access

to legal aid representation by indigent persons. 4. Unethical and unprofessional conduct among lawyers; corruption. 5. Labour intensive processes in the judiciary and lack of enthusiasm

to resort to the ADR mechanism of dispute settlement.

2.2.2 Observations and Recommendations on the CPC

The review of the Civil Procedure Code has identified provisions in the Civil Procedure Code that are considered to be impediments to the expeditious and fair administration of justice. The review also includes proposed amendments that should be made to cure the identified impediments. The focus is on jurisdictional, administrative, procedural and the application of the law and the extent to which it contributes to delays, costly litigation and hindrance to dispensation of justice. The end result is to find a solution by either amending the problematic sections or enactment of new statutes.

2.2.3 Challenges of Management of Court Business

The Commission has identified the current system of managing court business as one of the key challenges facing the civil justice system of Tanzania. This means that court procedures are often incomprehensible to many litigants and the civil justice system is too adversarial since cases are determined more by the parties and less by the courts.

Despite the adequacy of provisions in the CPC that enjoin Magistrates and Judges to control civil proceedings, judges and magistrates do not exert that control over trials and they invariably allow advocates to dictate the terms and pace of trials.

Also on management of court business, the Commission received complaints that justice system tends to give priority to criminal trials and relegating the importance of civil cases.

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2.2.3.1 Observations and Recommendations in the Position Paper

In the Position Paper, Civil Justice Technical Working Group (CJTWG) noted the absence of any clear line dividing judicial from administrative responsibility for the civil justice system. The CJTWG was of the view that in order to have clear lines of judicial and administrative responsibility, civil and administrative functions must be separated. This is by having a department within the judiciary to deal with purely administrative matters affecting the judiciary. It requires clear guidelines for specifying the duties of such administrators and to who are they responsible; and their relationship with the Judges and Magistrates. This separation will give Judges and Magistrates more time for dealing with cases than administrative matters.

The CJTWG appreciated and recommended that specialization is a necessary step towards improving the efficiency of Judges and Magistrates. It further recommended intensive training of judges and magistrates on all aspects of case management and proper remuneration.

2.2.3.2 Stakeholders’ Observations and Recommendations

Stakeholders recommended that Judges and Magistrates should be sensitized on their duty to supervise and control court proceedings. They further recommended that there is no need for separate courts specialized in criminal or civil matters as in practice specialization have failed to reduce the backlog of cases. A good example is on the already established specialized courts such as the land courts which still have a backlog of pending cases before the courts.

2.2.3.3 Observations by the Commission The Commission observed that the issue of separating judicial and administrative functions as suggested in CJWTG in the Position Paper has been addressed by the Judiciary Administration Act, 2011 which was enacted to make provisions for the administration of the Judiciary, to establish the Judiciary Service, to put in place the Offices of the Chief Court Administrator and the Chief Registrar, and has established the Judiciary Fund.

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There are provisions in the CPC which have not been effectively used by the courts to speed up the disposal of civil cases. These provisions are covered from Order X to Order IV of the CPC:

(i) Examination of parties at the first hearing of the suit to ascertain from each party or his advocate whether he admits or denies such allegations of facts as are made in the plaint or written statement [Order X Rule 1].

(ii) Discovery and inspection under ORDER XI whereby the plaintiff or defendant, by leave of the court, delivers interrogatories in writing for the examination of the opposite parties or any one or more of such parties.

(iii) Any party to a suit may give notice, by his pleading or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party [Order XII].

(iv) Parties or their advocates shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely and which has not already been filed in court, and all documents which the court has ordered to be produced [Order XIII].

(v) Settlement of issues and determination of suit on issues of law or on issues agreed upon [Order XIV]

2.2.3.4 Recommendations on Management of Court Business

The Commission recommends(i) Renewed sensitization of Judges and Magistrates of their duty to use the

existing provisions of the CPC to supervise and control proceedings.(ii) The allocation of training budget for Judges and Magistrates so that

they can be trained and updated on various reforms taking place both in Tanzania and also outside Tanzania.

(iii) Training of Registrars to enable them to effectively and efficiently dispose of preliminary matters before cases are heard by the Judges.

(iv) Increase in the number of Judges and Magistrates as well as improvement of the infrastructure.

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2.2.4 Status of “Mentions” in Court Proceedings

“Mentions” play important role in the civil justice system because they are intended to enable the court to monitor the progress of the case.

2.2.4.1 Observations on Status of Mentions in the Position Paper

In the position paper the CJTWG observed that courts have adopted a practice of mentioning of cases instead of following the stages provided by the CPC. This practice of MENTIONS has unnecessarily lengthened the process of litigation.

2.2.4.2 Stakeholders’ Observations and Recommendations on Mentions

Stakeholders are of the view that the law should provide for a specific provision for “Mention Orders” in the Civil Procedure Code. They further recommended that the law should specify maximum possible numbers of Mentions. For example, mention dates should not exceed an aggregate of three mention dates, if the pleadings are complete, the matter should take off immediately.

2.2.4.3 Commission’s Recommendations:

(i) Since there is no rule under the CPC which places a case for “mention”, the courts should not allow parties to apply for substantive reliefs such as dismissal of a suit or default judgment on a date designate for the mention of the case.

(ii) The CPC should be amended to prescribe specific stages through which civil proceeding shall pass through and should also fix time-limits for each stage of civil proceeding.

2.2.5 Provision on an Overriding Objective (Sections 1-5 of the CPC)

“....Reforms of the law of procedure must have some overriding objectives to guide the courts when applying the Rules of Procedure. On 26 July 1996, Lord Woolf published his Access to Justice Report 1996 in which he “...identified a number of principles which the civil justice system should meet in order to ensure access to justice. Following the report of Lord Woolf, the Civil Procedure Rules of England were enacted to to improve

access to justice by making legal proceedings cheaper, quicker, and easier to understand for non-lawyers. Unlike the previous rules of civil procedure, the CPR commence with a statement of their “Overriding Objective”, both to aid in the application of specific provisions and to guide behaviour where no specific rule applies. Lord Woolf advised that in dealing with a case justly includes, so far as is practicable:

(a) ensuring that the parties are on an equal footing;(b) saving expense;(c) dealing with the case in ways which are proportionate-

(i) to the amount of money involved;(ii) to the importance of the case;(iii) to the complexity of the issues; and(iv) to the financial position of each party.

(d) ensuring that it is dealt with expeditiously and fairly; and(e) allotting to it an appropriate share of the court’s resources,

while taking into account the need to allot resources to other cases.1

2.2.5.1 Observations on Overriding Objective of Procedural Law in the Position Paper

CJTWG noted that overriding objectives of procedural law are well captured in the Constitutional provisions of Article 107A. Yet, the quality of justice that results does not really match with the constitutional principles stated in Article 107A. CJTWG was silent on whether overriding objectives should be included in the CPC or not.

2.2.5.2 Stakeholders’ Observations and Recommendations on Overriding Objective of Procedural Law

There were divergent opinions with regard to having an express provision on overriding objective in the CPC. Some stakeholders

1 http://en.wikipedia.org/wiki/Civil_Procedure_Rules

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recommended that an overriding objective should be provided in the CPC and the wording of Article 107A of the Constitution should be fully adopted and there should be adherence by the parties to an action and the court and others recommended that there is no need of having overriding objective in the CPC.

Observations of the Commission:There is lack of an express provision in the Preliminary sections of the CPC of Tanzania on the Overriding Objective of Procedural Law. There is no section in the Preliminary Part of the current CPC to guide the courts and advocates as well as members of the public on what is the overriding objective of procedural law.

2.2.5.3 Recommendations on Overriding Objective of Procedural Law:

(i) There should be a new section 4A in the CPC to be added immediately after section 4 that adopts in full the provisions of Article 107A of the Constitution of the United Republic of Tanzania. This will guide the courts and advocates on the need to be guided by the principles enshrined in the Constitution about substantive justice without undue regard to procedural technicalities.

(ii) Technicalities should not be used to deny justice; merit of the case should prevail.

(iii) When the advocate is the source of the failure to observe technicalities required then he should be fined.

2.2.6 Pecuniary Jurisdiction of Courts and Commencement of SuitsSection 13 of the CPC regulates the pecuniary jurisdiction of the courts and prescribes types of suits which should be commenced in the court of the lowest grade competent to try it. This provision has caused confusion and uncertainty on what is the lowest quantum for the jurisdiction of the High Court. In a chain of cases, High Court Judges have held that they have jurisdiction to try a case even where the amount involved is a shilling arguing that Section 40 of the Magistrates Courts Act, 1984 read together

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with Section 13 of the CPC do not oust the jurisdiction of the High Court to try a matter in which the amount claimed is small.

Such inconsistencies in the Civil Procedure Code and Magistrates’ Courts Act need to be removed and the rules harmonized. This will cut down complexity involved in cross- referencing the rules.

2.2.6.1 Stakeholders’ Observations and Recommendations on where suits shall commence

Stakeholders recommended that the confusion brought by section 13 of the CPC and section 40 of the Magistrates’ Courts Act should be rectified by an amendment which should clearly provide that High Court should not entertain proceeding which falls within the jurisdiction of courts subordinate to it.

2.2.6.2 Recommendation:

Section 13 of the CPC and Section 40 of the Magistrates Courts Act should be amended to specifically provide that “for purposes of pecuniary jurisdiction the High Court shall not entertain a proceeding where the quantum claimed falls within jurisdiction of a subordinate court.”

2.2.7 Objections to Jurisdiction (Section 19) and Other Objections

There appears to be no clear or firm guidelines as to what type of objections may be raised in court; and who has the right to raise them; or at what stage these objections may be raised, and what should be the consequences where the objection is sustained. Also there appears to be confusion as to who as between the Court and the parties, has the right to raise objections.

Where an objection relates to a point of law, such as on jurisdiction, limitation, res judicata it may be raised at any stage of the proceedings, including on appeal if not taken during trial. An objection on a point of law may be raised by a party or the court suo motu.

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In practice however, advocates do raise a whole range of other objections on points: such as non-joinder of parties; failure to disclose cause of action; non citation of specific statute to back up an application; mis-description or improper description of a party.

With regard to this group of objections that do not touch on points of law, the Commission feels that there is no reason why a Magistrate or Judge should not dispose them summarily by allowing amendment of the pleading thereon.

There is no reason why a Magistrate or a Judge should insist that the objection must be lodged by a formal chamber summons supported by an affidavit and be heard several months later. All what is needed is for the Magistrate/Judge to hear a short explanation and allow an amendment.

2.2.7.1 Stakeholders’ Observations and Recommendations

Stakeholders recommended that there should be introduced a cadre in the judiciary which will be responsible for scrutinizing documents in order to prevent unnecessary preliminary objections. Preliminary Objections that do not go to the root of the case or defeats the ends of justice should be summarily disposed.

2.2.7.2 Commission’s Recommendation on Objections

Registrars should at stage of admission, scrutinize pleadings before these pleadings are taken before a trial judge for hearing. This early scrutiny will enable Registrars to identify any error and exercise the power to return the defective pleadings to the parties concerned for rectification.

2.2.8 Delays of Cases

Delays in conclusion of civil cases are a matter of widespread concern. Hon. Mohamed Chande Othman, the Chief Justice of Tanzania while opening the 4th Round Table Discussions of the Commercial Division of the High Court of Tanzania on 20 July, 2012 said that “If not properly managed, case delays may lead to unmanageable case backlogs which

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in turn clog the courts. Excessive case delays may amount to a denial of justice. In his Law Day Speech on 4th January 2008, Hon. Retired Chief Justice Augustino Ramadhani, his predecessor had earlier commented that, some of the factors contributed to delays are outside the control of the Judiciary, and there were also some other factors are saddled on the laps of the Judiciary.

There are many studies, writings and Task Forces which have offered suggestions on what can be done to ease the pressure of case delays and case backlogs in Tanzania. Examples of studies and reports on delays and backlogs of civil cases include (i) Judicial System Review Commission (Msekwa Commission) - 1974-1977; (ii) HIGH-LEVEL TASK FORCE REPORT 1993-1996, (Bomani Report); (iii) The Law Reform Commission Report of 1986 on Delays in the disposal of civil suits and identified major causes of these delays; and the Committee headed by J.A. Mroso (Justice of Appeal): November 2002. Case backlogs are the result of case delays. We cannot effectively sort out backlogs of cases without addressing the underlying causes of heavy case loads and delays. The 1986 report of the Law Reform Commission on delays in resolution of civil cases identified causes of delays. These were identified as including, (i) unnecessary adjournments; (ii) failure to serve summons because the Defendant could not be found at the address which was given by the Plaintiff; (iii) parties who fail to know what step to take next, especially when the parties conduct their own cases without the assistance of Advocates; (iv) where advocates are for one reason or the other are not prepared to proceed with the case and the courts are unwilling to exert judicial pressure to ensure the case proceeds; (v) advocates who apply for an adjournment because they are busy in a court superior the one he is supposed to appear; and (vi) advocates attempt to use the provisions relating to adjournments to suit their business dictates which in turn contribute to delays.

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2.2.8.1 The Delays Caused by Unnecessary Adjournments Observations:

There is need therefore to curtail the number of adjournments. Incessant adjournments of civil cases has been identified as one the reasons occasioning delays and consequent backlog of cases. Rule 1 (1) of Order XVII which governs adjournments provides:

1.-(1) At any stage of the suit the court may, if sufficient cause is shown, grant time to the parties or to any of them, and may from time to time adjourn the hearing of the suit.

As this Rule 1 (1) of Order XVII now stands, courts can allow adjournments at any stage of the hearing whenever sufficient cause is shown. Although sufficient causes to warrant adjournments have varied from case to case, this provision governing adjournments upon sufficient cause has been misused, causing delays of cases. It requires some changes to curb unnecessary adjournments.

2.2.8.1.1 Recommendation:

We recommend the amendment of Order XVII of CPC to limit the number of adjournments in a civil case to three. Where in exceptional circumstances a party is allowed an adjournment, the court shall direct the party concerned to pay costs to the other party occasioned by the adjournment.

2.2.8.2 Need to Furnish Reasons When Courts Grant Adjournments

It has been observed that cases are adjourned so easily and on flimsy reasons. Courts should have firmer grip on such adjournments as a way of cutting down on backlogs of cases.

2.2.8.2.1 Recommendations:

(i) Where any case is adjourned, the presiding Judge or Magistrate should ensure that the reason occasioning adjournment is

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recorded in the case file.

(ii) Where the plaintiff, applicant or their advocates fail to appear before the court for two consecutive times, the court should dismiss the suit or application.

2.2.8.3 Provisions to Guard against Indefinite Adjournments of Cases Observations:

The Chief Justice’s Circular No. 3 of 1993 was designed to prohibit indefinite adjournments of cases (termed adjournment sine die). Cases that are adjourned indefinitely though they are invariably forgotten, but they all the same remain on records as backlogs. The directive of the Chief Justice against indefinite adjournments of cases should be given legislative effect through an appropriate amendment.


(i) Cases that have been partly heard but their dates for continuation of hearing have not been set, should within 14 days of last adjournment be brought before the trial judge or magistrate with a view to fixing a specific date for continuation or conclusion of the trial.

(ii) No Judgments, rulings or orders should be reserved by the court without assigning a specific date when the court concern shall deliver its judgment or ruling.

2.2.8.4 Need to Introduce Affidavit Evidence at Institution of Suits to Speed up Hearing of Civil Cases

Observations

Section 22 of the CPC governs the institution of suits by providing:

22. Every suit shall be instituted by the presentation of a plaint or in such other manner as any be prescribed.

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Order IV of CPC supplements section 22:

1.-(1) Every suit shall be instituted by presenting a plaint to the court or such officer as it appoints in that behalf and, where the suit is instituted against the Government, delivering a copy of the plaint to the Attorney-General.

(2) Every plaint shall comply with the rules contained in Order VI and VIII, so far as they are applicable

Section 22 of CPC is in pari materia with section 26 of the Indian Code of Civil Procedure, 1908. India has since amended its section 26 by inserting a new sub-section to section 26 [of India], whereby it has become mandatory that all the facts mentioned in the plaint are proved by way of an affidavit. In India, at the time of institution of a suit, now the plaint will have to be accompanied by an affidavit.

Observation of the Commission:

It is now time to introduce affidavit evidence when a plaintiff files his suit.


(i) We recommend the amendment of section 22 of CPC by adding a new sub section to require that in every plaint, facts shall be proved by affidavit.

(ii) We further recommend the amendment of Order VIII to require that in every written statement of defence, counter claim and set-off, facts shall be proved by affidavit.

2.2.8.5 Delays Occasioned by Failure of the Plaintiff to Collect Summons to Serve on Defendants

Observations on duty to serve summons on defendants/respondents

On several occasions, plaintiffs would file their suits but fail to come back to collect summons to serve on the defendants. The duty to serve summons arises wherever a Plaintiff has filed his suit. This duty is not discretionary. A Plaintiff, who files a suit, ought to know that it is their duty to carry out such service of summons accompanied with a copy of the plaint within a

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reasonable period of time. Failure to effect service unnecessarily causes delay in the proceedings of the case. The importance of the effecting service is need not overstated. It is through the service of summons that the defendants become aware of the civil case that has been filed against them by the Plaintiffs. It is also through the service of summons that this trial Court is seized with jurisdiction over the defendants. Needless to say that summonses and court processes need to be served expeditiously.

Where a Plaintiff has instituted a suit, section 23 of CPC makes provision for issuing of summons to the Defendant to appear and answer the claim. The procedure for service of summons is prescribed under Order V of the CPC. Section 23 read together with Order V of CPC does not provide any time limit within which the Plaintiff should serve the summons and copy of the Plaint on the defendant. In some instances, Plaintiffs have taken advantage of this gap by failing to collect the summons from court registries for considerable period of time. It is important to expedite the progress of cases even at this preliminary stage where the Plaintiff has just filed his suit but does not take trouble to collect the summons.

2.2.8.5.1 Recommendation on the duty of Plaintiff to collect summons and to serve on Defendants:

The Commssion recommend the amendment of section 23 of the CPC to prescribe that the Plaintiff shall collect the summons and serve it on the defendants within 14 days of institution of the suit.

2.2.8.6 Duty of Parties to Serve Court Processes and Pleadings to the Other Party

Observations:

Some aspects of the delays of cases were at one time attributed to the practice of using court officials to effect service of court documents on behalf of the parties. It was decided that parties should take over this duty of serving their own pleadings and court processes arising from these pleadings to the opposite parties. The Circular Number 2 of the Principal

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Judge of the High Court addressed the problems occasioned using court officials to carry out the service of court processes.


The Comission recommend the enactment of appropriate provisions to give legislative effect of the Circular Number 2 of the Principal Judge:

(i) Plaintiff or an applicant filing a suit or an application shall pay only the filing fee and shall receive the appropriate receipt.

(ii) Plaintiff or an applicant shall be notified that the responsibility to serve the plaint or an application on defendants or respondents shall be upon the plaintiff or the applicant concerned.

(iii) Plaintiff or an applicant as the case may be, shall further be notified that he can carry out service of court processes and pleadings either by himself or by his agent in accordance with Order V Rule 31.

(iv) In case the Plaintiff or an applicant cannot carry out the service of process by himself, he should be notified that Court Brokers can carry out the task, and he shall be obliged to pay appropriate fee disclosed under the Court Fees Rules.

(v) Within four days after the filing, the Plaintiff or an applicant shall return to be informed which presiding Judge or Magistrate has been assigned the matter and to receive court summons to issue to the defendants or respondents.

Recommendations on Service of summons

(i) Order V Rule 15 of CPC should be amended to include other emerging modes of service by fax message or electronic mail (e-mail) where the addressee is employed in an organisation where fax and email

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addresses are well known.

(ii) The law should also be amended to allow the service of soft copies of pleadings by way fax message or electronic mail (e-mail) where the addressee is employed in an organisation where fax and email addresses are well known.

2.2.8.7 Dealing with Delays Occasioned When Case Files are called by Superior Courts

Observations:There are several statutory provisions which empower superior courts of records to call the records of subordinate courts for inspection. Occasionally, the case files that are called up for inspection are not returned within any specified time to enable the subordinate courts to proceed with the determination of the cases. Section 79 of the Civil Procedure Code Cap 33 illustrates the extent of the power of superior courts of records to call the files of subordinate courts:

CPC:

79.-(1) The High Court may call for the record of any case which has been decided by any court subordinate to it and in which no appeal lies thereto, and if such subordinate court appears-

(a) to have exercised jurisdiction not vested in it by law;

(b) to have failed to exercise jurisdiction so vested; or(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit.

Magistrates Courts Act, 1984: 44.-(1) In addition to any other powers in that behalf conferred upon the High

Court, the High Court–(a) shall exercise general powers of supervision over all district

courts and courts of a resident magistrate and may, at any time, call for and inspect or direct the inspection of the records of such courts and give such directions as it considers may be necessary in the interests of justice, and all such courts shall comply with such directions without undue delay;

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(b) may, in any proceedings of a civil nature determined in a district court or a court of a resident magistrate on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the case involving injustice, revise the proceedings and make such decision or order therein as it sees fit:

Provided that no decision or order shall be made by the High Court in the exercise of the jurisdiction conferred by paragraph (b) of this subsection, increasing any sum awarded or altering the rights of any party to his detriment, unless the party adversely affected has been given an opportunity of being heard.

(2) A resident magistrate-in-charge may call for and inspect the record of any proceedings in a district court and may examine the records or registers thereof for the purpose of satisfying himself as to the correctness, legality or propriety of any decision or order and as to the regularity of the proceedings therein; and may, in any case in which he considers that any decision or order is illegal or improper or any proceedings are irregular, forward the record with a report to the High Court in order that it may consider whether or not to exercise its powers of revision.

Concerned that case files were taking an inordinately long time to be returned to the subordinate courts, the Principal Judge issued the Principal Judge’s Circular Number 1 of 2005 to underscore the need to return back to the trial court files that are called by the High Court for Revision or any inspection.

2.2.8.7.1 Recommendations

The Commission recommends the amendment of sections 79 of CPC and 44 of the Magistrates Courts Act, 1984 to include the following:(i) Registrars and Magistrates-in-charge shall keep and maintain monthly

records of all cases whose files are called by the High Court.

(ii) Registrars and Magistrates-in-charge shall ensure that the files that were called by the High Court for any Order are returned back to the subordinate within 21 days of any Order of the Judge.

2.2.8.8 Alternative Dispute Resolution (ADR)

ObservationThe background to the introduction of Alternative Dispute Resolution (ADR) in Tanzanian judicial system is articulated in a Circular issued by Chief Justice Circular (No. 1 of 2002 dated 29th April 2002- Operation of the Alternative Dispute Resolution System). The ADR was introduced into the administration of justice in Tanzania vide Civil Procedure Code (Amendment of Schedules) Rules, 1994 GN No. 422 of 1994. The Pilot project for the implementation of the ADR which was carried out in Arusha, Dar es Salaam and Mwanza, demonstrated that they system is capable of speeding up administration of justice and can have a dramatic impact on the courts’ ability to manage cases. Several High Court registries and subordinate courts registries were initially exempted for a period of twelve months by the Civil Procedure (Exemption) (Registries of the High Court and subordinate Courts) Notice, 1995 GN No. 196 of 1995 from the requirement to apply GN No. 422/1994. The exemption period was extended to 1st May 1997 by the Civil Procedure (Exemption) (Registries of the High Court and Subordinate Courts) (Amendment) Notice, 1996 GN No. 204 of 1996.


(i) All judicial officers should be afforded more training on ADR in order to bolster their re-commitment to Alternative Dispute Resolutions to ease backlog of cases.

(ii) Newly appointed Judges and Magistrates should undergo induction training on ADR and periodically thereafter.

2.2.9 Representative Suits (Order I CPC)

Order I Rule 8 of CPC permits one person or more persons to sue or defend on behalf of all those interested in the matter. But the courts have imposed restrictions on the scope of the rule:

(i) The courts require the person representing others to

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obtain consent of those represented.(ii) This requirement is satisfied in two stages. First,

the persons to be represented sign a list which is attached to the application for permission to institute a representative suit; and secondly, after grant of the court permission, the representative has to publish in Newspapers information on the grant of the permit for the attention of those represented.

The assumption is that once permission to proceed by representative suit is granted, those represented would not be required to appear individually. However, the decisions from the Court of Appeal in the cases of: (i) NAFCO V. Mulbadaw Village & Others (1985) TLR 88; (ii) Haruna Mpangaos & 932 Others V. Tanzania Portland Cement Co. Ltd, Civil Appeal No.129 of 2008, Court of Appeal of Tanzania at Dar Es Salaam (unreported) direct that when it comes to proving the claims each and every individual represented must prove their case individually.

2.2.9.1 Stakeholders’ Recommendations on Representative Suits

Stakeholders recommended that:(i) The law should stipulate the required number of parties that

would warrant for representative suits. The requirements for sworn statement for each party as evidence in the representative suit should remain intact. Additionally, the Court should remain with powers to summon any witness to testify orally if the circumstances necessitates.

(ii) The current position of the law should be maintained as production of sworn statement only will not give the court a room to determine the demeanour of the witness.

2.2.9.2 Commission’s Recommendation:

The provisions of Order 1 Rule 8 and those of Order XVIII Rule 3 should be amended to provide that “where the Court grants permission to sue or defend in a representative capacity, the persons represented shall

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not be required to adduce oral testimony but shall be required to file affidavits verifying their claims and may be cross examined on the contents of those affidavits.”

2.2.10 Procedure of Admission of Pleadings/Claims (Orders II; IV and VII CPC)

Pleadings are formal presentations of claims and defences by parties to a suit. Pleadings are as such formal legal documents and they include Plaints, Written Statement of Defence and Applications. Order VI of CPC governs how pleadings should be. Special types of pleadings include Plaint (Order VII), Written Statement of Defence, Set-Off and Counter Claim (Order VIII). There are five related issues relating to admission of pleadings. First, there is lack of Prescribed Forms; second, diversity in content and framing of pleadings; third, service of pleadings on parties; fourth, amendment of pleadings and fifth, Verification of Pleadings.

On the lack of forms to be used in pleadings and other proceedings under the CPC, there are no approved/prescribed forms for pleadings, proceedings and notices issued or used in connection with proceedings under the CPC. Section 101 empowers the Chief Justice to approve for use forms for applications, proceedings, processes, notices, orders, decrees etc. This has not been done. This can be done if the Chief Justice constitutes a Rules Committee to prepare drafts for his approval.

Pleadings filed in courts are hardly precise, not models of clarity at all and rarely demonstrate simplicity of expression. They tend to be long, repetitive, argumentative and confusing. Advocates have been adopting forms and precedents from diverse jurisdictions depending on where they trained.

It should be noted that as a transitional measure, Section 101(3) CPC permits the adoption of forms used under the Indian Code of Civil Procedure 1908. Implicit in this section is the notion that precedents from

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other jurisdictions should be used only where there are no formats in the Indian Civil Procedure Code 1908.

2.2.10.1 Observations on Admission of claims:

The procedure for admission of the Plaint by the Magistrate in Charge/Judge in charge unnecessarily burdens them. The Magistrate/Judge in charge have to satisfy himself that the Plaint is in order and complies with the law before he allows a party to pay the court fee.

If the Magistrate or Judge in charge finds the Plaint defective or filed in the wrong court he has power to:(i) Order the Plaint to be returned and be presented

in the court in which the suit should have been instituted (Order V11 Rule 10(1);

(ii) Reject the plaint where the suit appears to be barred by law, or plaint fails to disclose a cause of action or relief claimed is undervalued (Order V11 Rule 11). The rejection of the Plaint by the Magistrate/Judge allows a party to present a fresh plaint on the same cause of action.

It is important to note here that due to being overloaded with administrative responsibilities there is tendency for the magistrates/judges in charge to endorse documents without bothering to scrutinize the claims and verify whether they comply with the law. This attitude is further compounded by the assumption that in an adversarial system, the court is neutral and should not be seen to assist any party. Consequently, claims are subjected to objections as soon as the hearing begins.

2.2.10.2 Observation and Recommendation on Admission of Pleadings/Claims in the Position Papers

On the issue of pleadings the CJTWG recommended that the Judiciary, Tanganyika Law Society and other stakeholders

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should work towards formulating an appropriate rule which requires practitioners and unrepresented parties to consider the purpose and content of pleadings and other documents before presentation to the court and CJTWG further recommended the proposed rule should have appropriate sanctions.

2.2.10.3 Stakeholders’ Recommendations

Stakeholders recommended that:(i) There should be special Prescribed Forms in the Civil

Procedure Code to be used in pleadings for simplicity and clarity purposes.

(ii) There should be introduced a cadre which will be responsible for scrutinizing documents in order to prevent unnecessary preliminary objections.

2.2.10.4 Commission’s Recommendations:

(i) Registrars in the High Court and other Registry Officers responsible for admitting claims, pleadings or other court documents lodged by a party should strictly scrutinize them to ensure the documents comply with the law before issuing summons to the opposite party to respond to the document.

(ii) The Registrars in the High Court and other Registry Officers should effectively use their powers as admission officers by inspecting the pleadings and to order such pleading to be struck out, amended (Order VI Rule 16); or to order the return to a plaint that has been filed in the wrong court and order it be taken to the proper court (Order VII Rule 10) or reject it where it fails to disclose cause of action or relief claimed is undervalued or is barred by limitation (Order VII Rule II). This diligence in exercise of their judicial powers will cut down delays associated with objections.

(iii) The Chief Justice constitutes a Rules Committee to prepare drafts for his approval.

(iv) The Rules Committee of the Chief Justice should prepare

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for approval by the Chief Justice, special Prescribed Forms in the Civil Procedure Code to be used in pleadings for simplicity and clarity purpose.

(v) Proper training should be given to Registrars so that they can discharge their duties efficiently.

2.2.11 Observations on Pleadings Generally

(i) It was generally observed that poorly prepared pleadings cause unnecessary delays especially where they are objected to, leading to amendment and re-filing of pleadings. Competence of a pleading may be questioned on such grounds as signing or verification.

(ii) On signing of pleadings, Order VI Rule 14 requires every pleading to be signed by a party and his advocate or a person duly authorized. This rule appears vague.

2.2.11.1 Stakeholders’ Observations and Recommendation on Pleadings

There were divergent opinions with regard to signing of pleadings in which some stakeholders recommended that either an advocate or his client should sign the pleading.

It was observed that utility of signing of pleadings by holders of Power of Attorney impedes the essence of fairness, affordability and time in as much as it involves the technicalities of registration of Power of Attorney. Stakeholders therefore proposed that simple letter signed by a person who wishes to engage an advocate should be used in such circumstances.

2.2.11.2 Recommendations on Pleadings Generally

(i) Where a pleading is drawn by an advocate and the advocate proceeds to act as counsel representing the party, then the pleading must be signed by both the advocate and the party thereof.

(ii) Where a pleading is drawn by an advocate retained only to draw the pleading and not to represent the party any further, the pleading should

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be signed by the advocate and his party with a clear endorsement that the advocates’ mandate was to draw the pleading only.

(iii) Where the pleading is drawn by the party himself, it should be signed by such a party.

(iv) Where a party or his advocate omits to sign a pleading, the Court should permit such party and his advocate to sign before commencing the trial.

(v) Where a party instructs an advocate to appear represent him/her in any matter as recognized agent, the advocate must possess written instructions or a power of attorney. In such a case the advocate should not represent the party in his capacity as counsel anymore but only as an agent of the party.

Belated Amendment of pleadings

Order VI Rule 17 of CPC allows amendment of pleadings at any stage of proceeding. The phrase “at any stage of proceeding” has sometimes been misused. In several occasions, delays are caused by amendments of pleadings (especially Plaints) leading to the process of litigation to begin all over afresh. There is an urgent need to curb out prevalence of the practice of late amendments of Plaints and other pleadings.

Although the amendment envisaged under this provision must not be of such character as to change the subject matter of the suit or being otherwise being unfair, courts have not ordinarily taken the trouble of limiting the scope of amendment to ensure no new completely cause of action is surreptitiously introduced under the cover of an amendment. There are instances where a Written Statement of Defence has been amended so as to introduce a preliminary point of objection which was missing in the earlier version of the written statement of defence.

As it now stands Order VI Rule 17 of CPC provides:

The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such

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amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Recommendation:

Order VI Rule 17 of the CPC should be amended to categorically provide that no one shall be allowed to amend pleading after the trial has commenced unless it can be proved that any subsequent event has occurred after the trial had commenced, and the court thinks that in spite of due diligence shown by the party the matter could not have been raised before the commencement of the trial.

2.2.12 The Use of Affidavits

There are three basic statutes on affidavits namely; the Civil Procedure Code, 1966 (Order XIX); the Notaries Public and Commissioners for Oaths Act, Cap.12 [R.E. 2002] and the Oaths and Statutory Declarations Act, Cap. 34 [R.E. 2002]. Each has different requirements on substance of verification for an affidavit.

2.2.12.1 Stakeholders’ Recommendations on Affidavits

Stakeholders recommended that:(i) Affidavit are still relevant, however statutes on affidavits

should be reviewed to have uniformity on the substance of sufficient verification for a valid affidavit.

(ii) Use of Affidavit should be maintained because to use what is described as “Statements of Truth” will open a Pandora box of presenting false information before courts of law.

2.2.12.2 Recommendations on Affidavits

Affidavits should be retained.

Taking evidence in civil suitsWe have already recommended the amendment of section 22 of CPC by adding a new sub section to require that in every plaint, facts shall be

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proved by affidavit. We have also recommended the amendment of Order VIII to require that in every written statement of defence, counter claim and set-off, facts shall be proved by affidavit.

In order to cut down on the number of days spent to examine in chief of witnesses, it is time to take full advantage of affidavit evidence which accompanies pleadings.

Recommendation:We recommend that examination-in-chief of witnesses shall be on affidavit that is filed with the pleadings. We further recommend that the trial court shall only take evidence only in cross-examination or re-examination. Trial courts should appropriately allow the admissibility of documents filed along with affidavits.

2.2.13 Observations on Verification of Affidavits

(i) Verification of pleadings is regulated by Order V1 Rule 15(1) of the CPC.

(ii) Verification of pleadings on behalf of bodies corporate is done by principal officers of the corporate body who are duly authorized and conversant with the facts of the case. In some companies a clause in the articles or a resolution may be passed to authorize a named person to execute documents on behalf of the company.

2.2.13.1 Recommendations on Verification of Affidavits

No pleading should be struck out or be rejected merely because it lacks signature of the party or his advocate. This is because the identity of the party to the pleading can be gathered from other parts of the pleading. The party or advocate whose signature is missing should be requested to sign and the proceedings be allowed to continue.

2.2.14 Interlocutory Orders (scattered in Sections 8; & 68; Order XXV security for costs; XXXVI arrest and attachment before judgement; and XXXVII Temporary Injunctions, Declaratory Orders and

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Interlocutory orders

Interlocutory orders)

2.2.14.1 Observations on Interlocutory Orders:

Interlocutory Orders, also termed as interim orders; supplemental orders or preservative orders are currently regulated by Section 68 of the CPC and other related orders. They cover applications for: maintenance of status quo; stay of proceedings; attachment before judgment; arrest before judgment; security for costs and injunctions. They are intended to preserve the rights of the parties while the dispute is awaiting or pending final determination.

A decision on an interlocutory order is not appealable save where it finally and conclusively determines the matter. On the face of it, rules governing when interlocutory orders can be granted when properly used are sufficient control for the grant of such orders.

Applications for interlocutory orders are ordinarily heard in the chambers of the magistrate/judge as opposed to open court because they involve matters of law for which the public may have little interest. The applications for interlocutory orders may also be made orally, without a supporting affidavit. Where the application is made orally, the question is where will the court get the evidence to determine the application? The Chamber Summons simply moves the court to hear the application. The facts supporting the application are contained in the accompanying affidavit.

It will be noted that although the grant of an injunction, one of the most popular interlocutory orders, is extensively regulated by Order XXXVII of the CPC, the magistrates and advocates do not adhere to the provisions. Two examples illustrate lack of adherence to the rules on injunctions: With regard to ex parte interim injunctions the rules expressly provide in Order XXXVII Rule 4 that no such ex parte interim injunction should be granted by the court without first serving notice on the opposite party unless the giving of such notice may cause delay, suggesting problems in tracing the opposite party for service and that the object of granting the injunction will

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be defeated. Yet in most cases ex -parte interim orders are granted as matter of course.

2.2.14.2 Observation and Recommendation on Interlocutory Orders in the Position Paper

In the Position Paper, the CJTWG observed that the laws on the interlocutory matters are relatively weak and would need improvement to make them serve the ends of justice rather than the interest of scrupulous parties or advocates. The Position Paper recommended that interlocutory disputes should be discouraged. It is further recommended that where the court is of the view that an interlocutory application is frivolous or vexatious, the unsuccessful party and where appropriate, his advocate should be condemned to pay costs. This penalty will shorten the time scale for litigations.

2.2.14.3 Stakeholders’ Observation and Recommendations on Interlocutory Orders

Stakeholders recommended that:(i) Courts should be strict to make sure that parties

comply with Order XXXVII of the Civil Procedure Code in respect of interlocutory orders.

(ii) Since the objective of interim orders is to maintain the status quo the law should therefore be amended to allow its renewal until the final determination of the matter.

(iii) All cases involving injunctions should be heard with good speed because injunctions go to the root of economy.

2.2.14.4 Recommendation on Interlocutory Orders:

(i) No ex parte interim injunctions should be granted unless the requirements in Rule 4 Order XXXVII are fully met.

(ii) Second, the rules provide that the duration of an injunction shall be for an initial period of 6 months only and may be renewed for another 6 months but on aggregate an injunction

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Interlocutory Orders

should not last more than 12 months. Provided the court determine cases within agreed speed track.

2.2.15 Service of Summons (Order V)Summons has been defined in the free dictionary.com to mean a call by an authority (i.e. court) to appear, come or do something. Order V of the CPC governs the issuing and serving of summons on parties.

Failure to serve the summons upon the defendant has a major impact on the speed and progress of the suit. Order V Rule 12, service of summons should as far as it is practicable be made on the person actually to be affected by the suit; hence, the Court may proceed ex parte if the summons is disobeyed.

2.2.15.1 Observation on Service of Summons:

Order V Rule 20 provides for very limited modes of substituted service by (affixation; publication.) The rationale of having substituted service is that there are cases when defendant cannot be found, and has no agent empowered to accept service, nor any other person on whom service can be made. In such a case, after the process server is satisfied after all due and reasonable diligence that such is the case, such process server must affix a copy of the summons on the door or some conspicuous part of the house in which defendant ordinarily reside or carries on business or personally works for gains.

2.2.15.2 Stakeholders’ Observations and Recommendations on Service of Summons

Stakeholders recommended that the law in relation to service of summons should be expanded to include other services such as DHL and fax except for EMAILS due to the difficulties in proving if its service was effected. This will help in speeding up the process of filing and hence saving time to both parties and the court. It will also save costs to litigants, especially the poor class which is to be protected in the process of dispensing civil justice.

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2.2.15.3 Recommendation on Service of Summons:

The modes of effecting service of summons should be expanded to include service through other evolving expedited means of communication such as courier services, by scanned email, fax and any other means.

2.2.16 Moderating the Rigours of the Adversarial System

In this system, the parties to a controversy develop and present their arguments, gather and submit evidence, call and question witnesses, and, within the confines of certain rules, control the process. The Judge, who determines the truth of the case, usually remains neutral and passive throughout the proceeding.

2.2.16.1 Observation on Adversarial System:

In John Magendo v. N.E. Govani [1973] LRT n. 60, the High Court, Biron, J. (at page 268) implored magistrates not to canonize the adversarial system when he held “It is the duty of a judge or magistrate conducting a case to try the case and determine it on its merits doing justice to each party. The object of a civil trial is to do justice to the parties and determine the dispute between them judiciously in accordance with the law. It cannot be overstressed that it is the duty of the magistrate trying a case, not to sit back as a spectator or, to use the magistrate’s terminology, a referee, and watch the proceedings, but to try the case before him, whether a criminal or a civil case”.

2.2.16.2 Observation and Recommendation on Adversarial System in the Position PaperThe CJTWG observed that, there is existence of divergent views on the adversarial system of dispute settlements that applies in Tanzania. Critics of this system point out that litigants resort to partisan and unfair litigation tactics to win the “legal battle” at whatever costs. However, proponents of the status quo argue that the adversarial system foster judicial impartiality, independence and consistency.

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It is also observed that the Constitution of the United Republic of Tanzania 1977 gives room for dispute settlement in a less adversarial manner.

The CJTWG is of the view that a mere call for change to the adversarial system can sometimes oversimplify the problems in the country’s litigation system and solutions to those problems, at least as far as this debate concern civil matters. The debate somehow assumes that the problems associated with say, the costs, delay or unfairness in the system, are attributable to the adversarial character of the system and that these problems can be cured by borrowing from or at least realigning the system to the inquisitorial or civil code systems.

Further, the CJTWG points out that not all shortcomings obtaining in civil justice system in Tanzania are the effect of an extremely system. Some problems such as judicial apathy, unethical behaviour of advocates and judicial officers, corruption and delay in case disposal may trace their causes elsewhere.

As regards the debate on the adversarial system vis-à-vis the civil law system the CJTWG makes the following recommendations:

(i) Judges and magistrates should be obligated to be in charge of court proceedings and run the show.

(ii) The CJTWG cautions against a radical departure from the current adversarial system. However the CJTWG recommends adoption of some aspects of civil code system especially those which empower the judge or magistrate to exercise full control over the proceedings.

(iii) Modification of the adversarial system to suit local condition.

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2.2.16.3 Stakeholders’ Recommendation on Adversarial System

Stakeholders recommended that Magistrates and Judges of the High Court should participate fully in proceedings as the practice in the Court of Appeal.

2.2.16.4 Recommendation of the Commission on Rigours of Adversarial System

The Commission is of the view that Magistrates and Judges of the High Court should engage parties and participate fully in proceedings as the practice in the Court of Appeal.

2.2.17 Remedies of Review, Reference, Revision or Appeal for Aggrieved Parties should this be with Appeals

2.2.17.1 Observations:

1. In law, where a party is dissatisfied with the decision of a trial court he or she may consider a Review; Reference, Revision or Appeal.

2. While the High Court can entertain a reference from a subordinate court, it does not review decisions of such subordinate courts. The High Court can only either revise or hear appeals from subordinate courts.

3. Review is open to the very court that delivered the initial decision and it can be conducted on very limited grounds only.

4. Reference lies from a decision of a subordinate court where there is request for directions on a point of law or procedure and where a party is dissatisfied with the decision of a Taxing Master.

2.2.17.2 Stakeholders’ Recommendations on Remedies for Aggrieved Parties

The principles regulating review, reference, revision and appeal should be retained.

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2.2.17.3 Commission’s Observations

The Commission observes that the principles regulating review, reference, revision and appeal should be retained.

2.2.18 Rule Making Power of the Chief Justice

Civil Procedure Code is made up of substantive statutory provisions of sections 1 to 101 which can only be amended, repealed or changed through an Act of parliament. Section 81 provides for the powers of Chief Justice with the consent of the Minister for Legal Affairs to amend the First Schedule (Civil Procedure Rules) and Second Schedule (Civil Procedure Arbitration Rules). Section 101 allows the Chief Justice to approve for use forms for applications, proceedings, processes, notices, orders, decrees, precepts, memoranda, bonds, commissions, letters of request or other documents required to be prepared, executed, filed, issued or otherwise used in connection with proceedings under the Civil Procedure Code.

2.2.18.1 Observation:

Under the present mechanism of Section 81 of the CPC, the Chief Justice is only required to consult the Minister responsible for Legal Affairs before enacting rules under the CPC. There is not sufficient stakeholder involvement in the rule making process under the CPC.

2.2.18.2 Stakeholders’ Recommendation on Rule Making Procedures

Stakeholders supported the idea of Rules Committee to advise the Chief Justice in Rules making powers. Committee should include members from the bench, bars, and Non Governmental Organisations (NGO’s) and other important stakeholders.


(i) The Chief Justice should continue with rule making powers under section 81 of the CPC.

(ii) There should be established a Judicial Rules Committee to advice the Chief Justice.

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(iii) The Judicial Rules Committee should prepare Special Forms to be approved by the Chief Justice for purposes of prescribing for applications, proceedings, processes, notices, orders, decrees, precepts, memoranda, bonds, commissions, letters of request or other documents required to be prepared, executed, filed, issued or otherwise used in connection with proceedings under the Civil Procedure Code.

2.2.19 Summary Judgments

Summary Procedure under Order XXXV applies to suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest.

Where a suit is instituted under Order XXXV of the CPC, the defendant, before filing his defence, has first to seek leave to appear and defend the suit. In his application to be allowed to defend the defendant must show by affidavit that there is a bona fide triable issue.

2.2.19.1 Observation on Summary Judgments:

1. A judgment entered where the defense has no substance or judgment entered on dishonored cheque for which a party has failed to obtain leave to defend would be a summary judgment or judgment on summary suits under Order XXXV CPC.

2. There should be no liberal award of summary judgments except on a clear admission of the claim or in the most compelling circumstances. Summary judgments may offend the principle of the right to defend. Sometimes the court may only know the line of defense when a party has been fully heard in his defense case.

2.2.19.2 Observation and Recommendation on Summary Judgments in Position Paper

It was observed that there are limitations in the application of the procedures relating to summary judgment. Summary procedure is only available for cases which there are no serious questions

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to be tried. Currently summary suits apply to only seven types of suits listed Order XXXV Rule 1. Courts have been too prepared to accept flimsy defences and allow the case to go for full trial.

CJTWG recommended that the Civil Procedure Code should be amended to expand the application of summary procedure to other types of suits.

2.2.19.3 Stakeholders’ Recommendation

The current legal trend should be maintained but should be expanded to other specified suits.

2.2.19.4 Recommendations on Summary Judgments:

Rules on summary judgments should be retained and Judges and Magistrates should administer summary judgments more expeditiously.

2.2.20 Case Speed Tracks It refers to a procedure of categorizing civil cases in accordance with their relative complexity and within what period cases in a particularly category should be finalized.

Position Paper Observation on Speed Tracks of Cases

CJTWG observed that it is clear that adherence to timescales for litigation according to appropriate speed track of a case renders the period of litigation shorter and certain in the sense that parties can ascertain as to when the case will be finally determined.

The Need to Speed up Cases Which Have Significant Economic, Social or Political Interests

Although every suit has its own importance and urgency, there are some cases which because of the economic, social or political significance should be given priority in terms of speed and conclusion. This fact was recognized by the Principal Judge when he issued the Principal Judge’s Circular Number 1 of 2007 ref. HCC/C.40/8/134 on 26 February

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2007. He underscored the need to speed up conclusion of civil cases with wider economic connotations or involving local or central governments. He also pointed out the importance of guarding against delays occasioned by Advocates who after securing temporary injunctive orders deliberately delay the progress of cases. He identified which have wider economic connotation as including land cases, civil cases impacting on commercial activities:

“Kuna kesi nyingi za kiuchumi moja kwa moja au kwa njia zingine. Kesi za migogoro ya viwanja, biashara ama uwekezaji kwa watu wa nje na wa ndani ni baadhi ya kesi hizo. Ni wajibu wa Mahakama kuona kuwa uchumi wa nchi unakua na kuendelea. Hivyo ni vizuri tukazipa kesi hizo kipaumbele. Kwa kutofanya hivyo, wawekezaji wanapofunga mikataba na Serikali au makampuni hapa nchini, wanapenda kusisitiza kifungu kinachosema kuwa kukitokea kuotoelewana, basi kesi itasikiliziwa nchi Fulani ya Ulaya au usuluhisho (arbitration). Sababu kubwa ni ucheleweshaji wa kusikiliza na kutoa maamuzi. ..... Ikiwezekana, kesi zote za kibiashara zisikilizwe moja kwa moja, au zikiahirishwa, iwe kwa muda mfupi. Kwa kufanya hivyo, tutalinda heshima ya Mahakama ya Tanzania.”


Rule 3 under Order VIIIA of the CPC prescribe the speed which the trial judge or magistrate may after consultation with parties prescribe:

(3) The appropriate speed track of a case shall be determined as follows-

(a) Speed Track One shall be reserved for a case considered by the judge or magistrate to be fast cases, capable of being or are required

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in the interests of justice to be concluded fast within a period not exceeding ten months from commencement of the case;

(b) Speed Track Two shall be reserved for cases considered by the judge or magistrate to be normal cases capable of being or are required in the interests of justice to be concluded within a period not exceeding twelve months from commencement of the case;

(c) Speed Track Three shall be reserved for cases considered by the judge or magistrate to be complex cases capable of being or are required in the interests of justice to be concluded within a period not exceeding fourteen months;

(d) Speed Track Four shall be reserved for cases considered by the judge or magistrate to be special cases which fall in none of the three abovementioned categories but which nonetheless need to be concluded within a period not exceeding twenty-four months.


We recommend the amendment of Rule 3, Order VIIIA to empower the Principal Judge, Judges/Magistrates-in-Charge in consultation with presiding judge or magistrate concerned, to prescribe a shorter speed track for any case or application they consider to have economic, social or political significance for purposes shorter speed track.

2.2.21 Discovery and Inspection Order XI

Purpose of delivering interrogatories in civil proceedings is to discover from the opposite party what matters are admitted or denied by the opposite party. The rules providing the delivering of interrogatories are designed to disposing of the suit fairly, expeditiously and to save the costs.

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2.2.21.1 Observation on Discovery and Inspection:

Current rules on Discovery and Inspection under ORDER XI of the CPC should be retained.

2.2.21.2 Stakeholders’ Recommendations on Discovery and Inspection

The current position of the law should be maintained.

2.2.21.3 Commission’s Recommendation on Discovery and InspectionCurrent rules on Discovery and Inspection under ORDER XI of

the CPC should be retained.

2.2.22 Judgments and Orders

2.2.22.1 Observations on Judgments and Orders

1. There is non-adherence by courts to standards required of when composing a judgment in particular the necessity to set out reasons for the conclusion. Order XX Rule 4 CPC expressly prescribes the contents of a judgment and reasons must be given for the decision.

2. Order XX Rule 4 CPC directs judges and magistrates to give reasons for the decisions.

3. The CPC prescribes a time limit of 90 days within which judgment/ruling must be delivered. There are similar express statutory provisions in the Criminal Procedure Act and the Court of Appeal Rules which prescribe a time limit within which judges of the High Court and Court of Appeal and magistrates must deliver judgments.

4. With regard to the time within which magistrates and judges must deliver judgment and rulings, Section 28 CPC as amended by the Judicial Service Act 2005 provides for 90 days within which a court shall deliver a decision. Similarly, Rule 39(1) of the Court of Appeal Rules 2009 prescribes 90 days within which the court should give a decision.

5. However there are no sanctions for failure by a judge or

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magistrate to deliver judgment within 90 days. In other jurisdictions the judge may be reprimanded; have part of his salary deducted/withheld or his contract may be terminated.

2.2.22.2 Stakeholders’ Observations and Recommendations on Judgments and Orders

Stakeholders’ views were divergent on this issue. Some stakeholders were of the view that generally Judges in Tanzania deliver judgments on time and therefore there is no need to legislate on sanction for a few Judges who do not deliver judgment on time.

Some stakeholders observed that time limit of 90 days is suitable for delivering judgments and upon failure to deliver judgments in time the magistrate and judge responsible should be addressed to show cause for delay. It was also recommended that disciplinary action should be taken for those who fail to show cause for delay and bonus be rewarded to Judges and Magistrates who deliver judgments on time.

Other stakeholders opposed the proposal of imposing sanctions to judges who fail to deliver judgment within the prescribed 90 days as it is inconsistent with the procedure of removing judges for inability to perform his duties in under the Constitution. The judge who fails to explain can be better dealt under the Constitution and the Code of Conduct which is part of the Judicial Administration Act and not under the CPC. Under Section 24 (1) of the Judicial Administration Act the Chief Justice has powers to supervise the disposal and management of cases. He can receive and investigate any complaint relating to that disposal of cases. The matter can be thus at initial stages be dealt with by the Chief Justice. Certainly the judge will be given opportunity to explain of his failure to deliver judgment in time. It was recommended that Chief Justice should make Administrative Rules which make Judges and Magistrates accountable administratively.

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2.2.22.4 Recommendations on Judgments and Orders:

1. Judiciary should have data base on cases as this will ensure efficiency in case management.

2. The practice in other jurisdictions of disciplining judges and magistrates who fail to deliver judgment on time should be considered for adoption by the Judicial Service Commission.

3. Statutory limit of delivering judgment should be deleted in the Act and be dealt by the Judicial Service Commission and the Chief Justice administratively after taking into account the nature of the case and various challenges which the Judiciary is facing.

2.2.23 Appeals

2.2.23.1 Observations on Appeals:

1. Appeals from Primary Courts are sometimes heard by Resident Magistrates instead of District Magistrates. In law appeals from the Primary courts go to District Courts. A streamlined structure should provide for an appeal from the Primary Court to first go to District Court thereafter to Regional Court (Court of Resident) Magistrate and then to High Court.

2. The basic statutes on appeals include: the Magistrates Courts Act, 1984; the Civil Procedure Code 1966; the Appellate Jurisdiction Act, 1979 and the Court of Appeal Rules, 2009. These statutes prescribe different time limits for appealing; different requirements and different modes/methods of appealing which creates complexity and confusion. Forms and Procedures of lodging application/appeals which currently vary from court to court and tribunal to tribunal depending on nature of proceeding should be uniform and standard in all Courts and Tribunals.

Applications in High Court and Subordinate Courts are made by Chamber Summons supported by an affidavit. In the Court of Appeal they are by Notice of Motion supported by affidavit. The distinction is hard to justify. Why can’t it be Chamber

Summons in all courts? Similarly, when responding to the affidavit in the High Court and Subordinate Courts, a party files a counter affidavit. In the Court of Appeal, the party files an Affidavit-in-Reply. In substance the counter-affidavit and the affidavit in reply are synonymous. There is no rationale for the distinction.

3. It is also confusing as to what form of documents one lodges when pursuing a revision, review and appeal. For example, a revision in the High Court and subordinate courts is by chamber summons supported by an affidavit. A review is by memorandum of review more or less similar to a memorandum of appeal. In some cases the judges require the memorandum of review be accompanied by a Chamber Summons with a supporting affidavit to move the court. In appeals originating from the mode used is a Petition. Likewise in a matrimonial proceeding in Primary Courts party appeals by Petition of Appeal up to the High Court level. When the matter goes to the Court of Appeal, a party adopts a memorandum of appeal. There is no rational basis why appeals should not be by way of memorandum of appeal for all cases in all courts?

4. With regard to appeals originating from Magistrates Courts to the High Court under the CPC and from the Magistrates’ Courts and the High Court to the Court of Appeal, there is lack of clarity with regard to what exactly do parties appeals against? In practice, does a party appeal against an order and decree of the court or does he appeal against the ruling and judgment? Is it not the practice that when addressing the courts when arguing the appeal, the parties always complain and make reference to the proceedings, judgment or ruling rather than the decree or drawn order.

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2.2.23.2 Observations and Recommendations on Appeals in the Position Paper

It was observed that the right to appeal against an adverse decision to a higher court is an established feature of the Tanzania justice system. Appeals, however, can significantly extend the case duration to a longer period until a final resolution of the case is achieved.

Time limit for the aggrieved party to appeal is 30 days from the date of judgement. This limitation of time to appeal is impracticable because Order XXXIX Rule 1 requires the memorandum of appeal to be accompanied by a copy of the decree appealed from and of the judgment on which it was founded. That being the position there is a substantial delay in filing an appeal, since time limit starts to run against the party wishing to appeal from the date when both judgement and decree are ready. In many courts, it takes more than 30 days for the two documents to be ready.

Appeals are not classified into speed tracks in accordance with their relative complexity and within what period appeals in particular category should be finalized. That being the position, there is no time limit for determining the appeals.

To address the above problems that contribute to the delay in disposing civil cases at the appeal stage, the CJTWG made the following proposals:(a) Courts must be equipped with the required human resource and other

necessary court facilities so that the required documents for appeal purposes are made readily available once the judgment is pronounced or shortly thereafter, preferably within three days.

(b) There should be time limit for determining appeals. This can be done either by referring to the speed tracks in which the case was placed by the trial court or by having new speed tracks at appeal stage.

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2.2.23.3 Stakeholders’ Observations and Recommendations on Appeals

Stakeholders observed that the assertion of the Commission that a Resident Magistrate has powers to review the proceedings of the District Court is not supported by the provision of Section 44 (2) of Cap 11[R.E. 2002]. The Resident Magistrate in Charge (and not any Resident Magistrate) is only empowered to call for the record of the District Court to inspect with a report to the High Court in order that it may consider whether or not to exercise powers of revision. Thus the proposal of granting powers to Resident Magistrate Court to hear appeal from the District Court under the present set up may be difficult. That may be considered subject to reorganization of the structure of the court as the position in Zanzibar.

Apart from that stakeholders supported the idea that documents which are used to appeal should be either “Memorandum of Appeal” or “Petition of Appeal because the use of different documents causes confusion to litigants and has been a source of preliminary objections.

However, ‘stakeholders’ had divergent views on the issue of harmonizing time of appeal from one court to another within a judicial system. Some stakeholders agreed with the idea of amending the law to harmonize and make limitation on time for appeals uniform. Some stakeholders were of the opinion that different time limit was set for the purpose and there is no need of making them uniform. Stakeholders are of the opinion that the arrangement can remain as it is although the time requirement may be extended like what was done in the court of Appeal Rules, 2009.

Also stakeholders were of the considered opinion that appeal should be against the judgment and decree. This is so because on appeal the court deals with the judgment and decree and usually resorts to the proceedings to see if they relate to the judgment. Indeed the

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court can reverse the proceedings if they are not consistence with the law. It is in this regard that the District Court, High Court and Court of Appeal have powers of revision of the proceedings in the course of hearing appeals under the respective Laws.

Lastly, there should be a provision which would allow the matter to be transferred to the High Court if the same was determined by a magistrate conferred with extended jurisdiction and who is unable to proceed and there is none of his rank.

2.2.23.4 Recommendations(i) Rules on appeal should provide that an appeal shall lie against

the proceedings, judgment and decree without putting any restriction on the right to appeal.

(ii) To avoid confusion to litigants and unnecessary preliminary objections, Chief Justice through Rules Committee should prescribe standard and uniform format which will be used throughout.

(iii) Appeals, Revisions, Reviews and References should be classified into speed tracks or timeframe for purposes of determining their duration before conclusion.

2.2.24 Limitation Periods for purposes of Lodging Appeals


1. At present the periods of limitation for appealing from decision of a Primary Court to District Court (30 days) under section 20 (3) Magistrates Courts Act, 1984 from District Court to High Court (30 days) under section 25 (1) (b) and the High Court to the Court of Appeal (60 days) under Rule 90 (1) Court of Appeal Rules, 2009.

2. Other laws such as the Land Act, 1999 and Village Land Act, 1999; Labour Institutions Act, 2004 fix their own time line limits for appealing.

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3. As such it is confusing for any party let alone practitioner to identify the specific period of limitation for appealing in a particular proceeding.

4. The striking out of appeals on technical grounds has also been remedied by the amendments to Order XX of the Civil Procedure Code promulgated by the Chief Justice which provide that no appeal will be struck out merely because a decree was signed by a registrar or that the date of the decree is at variance with the date of the judgment.

2.2.24.2 Stakeholders’ Observations and Recommendations on Limitation Periods within which to lodge Appeals

Appeal from Primary Court to District Court should be 30 days and from District Court to High Court be 60 days and from High Court to Court of Appeal should be 60 days. Also the time for limitation of appeal should be embodied in the Law of Limitation Act. Other stakeholders were of the opinion that limiting time to appeal should be uniform to all court while suggesting it to be 60 days.

2.2.24.3 Recommendation:The period of limitation should be uniform. There should not be different time limits for appealing. Uniform or standard time line of appealing of 60 days in all cases would make it easy for an intending appellant to remember.

2.2.25 Judicial Review

Judicial review is a form of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In general terms judicial review may be appropriate where the challenge is based on an allegation that the public body has taken an unlawful decision or action.

In Tanzanian Judicial Review is governed by the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 [R.E. 2002]. Sections 17 to 19 of the Act provides for remedies of Mandamus, Prohibition and Certiorari. The Act gives jurisdiction to High Court to issue any of the prerogative

writs of mandamus, prohibition or certiorari. In this case the High Court may make an order requiring the act to be done or prohibiting or removing the proceedings or matter, as the case may be. Any person aggrieved by an order made under the Act may appeal there from to the Court of Appeal.

2.2.25.1 Importance of the Remedy of Judicial Review

Judicial review is a specialized remedy in public law by which the High Court exercises a supervisory jurisdiction over inferior courts, tribunals or other public bodies. In a paper presented to the Southern African Chief Justices Conference, at Kasane, Botswana 7th to 8th August, 2009 Chief Justice (Rtd) Augustino S. L. Ramadhani expressed his firm belief that judicial review of administrative action is indeed the primary vehicle for the protection of human rights and the rule of law.

The immediate former Chief Justice of Tanzania quoted Lord Hilsham L. C. in Chief Constable of North Wales Police v. Evans [1982] 1 W. L. R. 1155 at 1160, that the purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that authority constituted by law to decide the matters in question.

Hon. Ramadhani referred to several decisions of the High Court of Tanzania to underscore the importance of judicial review:

(i) In Festo Balegele and 794 others (Applicants) vs. Dar es Salaam City Council, Misc. Civil Cause No. 90 of 1991, High Court of Tanzania at Dar es Salaam (unreported). The power of High Court on judicial review was resorted to by residents of a suburb of Dar es Salaam to stop the City Council from dumping waste and refuse which attracted swarms of flies. When the rubbish was set on fire, a lot of smoke and foul smell was produced inconveniencing the

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whole neighbourhood. The applicants applied for orders of certiorari to quash the decision of the City Council of dumping waste; prohibition, to stop the City Council from continuing that nuisance.

(ii) In Edward Mlaki Liston Matemba v The Region Police Commander, Misc. Civil Application No. 38 of 1979 (unreported), there was an allegation that two vehicles belonging to Edward Mlaki Liston Matemba were involved in transporting smuggled goods. The Regional Police Commander of Kilimanjaro Region, pursuant to the instructions of the Secretary to the Regional Security Committee, arrested and detained the vehicles. Mr. Matemba (the applicant) was later summoned to appear before the Region Security Committee where he denied the allegations. He was told that he would be informed of the outcome but that was not done. The vehicles remained in police custody though no criminal charges were preferred against him. Employing the powers of judicial review, the High Court held that in the absence of any pending criminal matter the respondents had no power to detain the applicant’s vehicles. The High Court issued an order of mandamus to release the vehicles.

2.2.25.2 Stage of Leave in an application for Judicial Review

Judge Lugakingira J (as he then was) in the case of Republic Ex-Parte Peter Shirima V Kamati ya Ulinzi na Usalama, Wilaya ya Singida, the Area Commissioner and the Attorney General 1983 TLR 375 (HC) observed that practice of seeking leave to apply for prerogative orders has become part of our procedural law by reason of long user. Justice Lugakingira further observed that for purposes of judicial review, section 2 (2) of the Judicature and Application of Laws Act requires the High Court to apply the substance of English Common Law the Doctrines of Equity and the Statutes of General Application in force on the 22nd July

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1920. He further expressed his anxiety why Tanzania has to apply English Rules of procedure in applications for judicial review considering that these rules of procedure have been abandoned by England, the country of their origin.

Applicants applying for judicial review should first obtain leave of the Court under Order 1 Rule 8 of the CPC. Court of Appeal in the case of K.J. Motors and 3 Others v. Richard Kishamba and Others, Civil Appeal No. 74 of 1999 (CA-DSM) (Unreported) has explained the rationale:

“..The rationale for this view is fairly apparent. Where for instance, a person comes forward and seeks to sue on behalf of other persons, those other persons might be dead, non-existent or otherwise fictitious. Else he might purport to sue on behalf of persons who have not in fact authorized him to do so. If this is not checked it can lead to undesirable consequences. The court can exclude such possibilities only by granting leave to the representative to sue on behalf of the person whom he must satisfy the court that they do exist and that they have duly mandated him to sue on their behalf.”

2.2.25.3 Commission’s Observations on Judicial Review;

The Commission observes that although the remedy of judicial review is designed to be an expeditious remedy available to an individual, delays have plagued this remedy just like other cases and applications that have passed through the High Court. Mwita, J. (as he then was) has noted in the case of Williamson Diamonds Limited vs. The Zonal Mines Officer Shinyanga and 11 Others- HC (Tabora) Miscellaneous Civil Cause Number 16 of 2004 (unreported):

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“... at the leave stage the aim is preliminary sifting to discourage hopeless applications. Although in-depth examination was inappropriate at the leave stage the Court will often give more than a quick perusal of the available materials. Apart from being satisfied that there is an arguable case for review the court is required at the leave stage to consider whether the applicant has sufficient interest; whether there has been undue delay......”

The Commission further observes that:

1. Judicial review of administrative action by prerogative orders of Certiorari, Mandamus and Prohibition is not governed by the CPC or Government Proceedings Act. The orders are regulated by the Law Reform Fatal Accidents and Miscellaneous Provisions Act, Cap. 310 [R.E. 2002].

2. Administrative remedies are pursued by way of Chamber Summons, supported by affidavit and a statement. The procedures and substantive rules for their grant are well established now.

3. High Court should continue to follow the guiding principles which the High Court and the Court of Appeal of Tanzania have issued upon which the orders of judicial review may issue. For instance, Certiorari can be issued where an inferior tribunal has taken into account matters which it ought not to have taken into account; has not taken into account matters which it ought to have taken into account; lacked or exceeded its jurisdiction; arrived at a conclusion that is so unreasonable that no reasonable authority could ever come to it; rules of natural justice have been violated; illegality of procedure or decision, etc.

2.2.25.4 Recommendations of the Commission;

(i) The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 [R.E. 2002] should be amended

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by repealing sections 17, 18 and 19 which hitherto make provisions for judicial review.

(ii) A new ORDER XLIIA should be added to the Civil Procedure Code to specifically provide for the applications for judicial review in the form of Orders of mandamus, prohibition or certiorari.

(iii) High Court should automatically grant leave in any proceedings from whose pleadings prima facie disclose triable issues.

(iv) High Court should automatically grant leave in any proceedings from whose pleadings prima facie involves the interpretation of the Constitution with regard to the basic freedoms, rights and duties specified in Part III of Chapter I of the Constitution, and in this case no main application for judicial review should be commenced or continued unless the Attorney-General or his representative designated by him for that purpose is summoned to appear as a party to those proceedings.

(v) Where there are numerous applicants applying for judicial review, they should first obtain a leave of the Court under Order 1 Rule 8 of the CPC to proceed in a representative capacity.

(vi) Where the High Court grants leave to apply for judicial review, that order of the High Court should operate as stay of proceedings until the determination of the application or until the Court otherwise orders.

(vii) Since an application for leave is made ex-parte, High Court should exercise its discretion within seven days of filing of the ex -parte application seeking leave.

(viii) The Chief Justice should retain the power to make Rules of Court prescribing the procedure and the fees payable or documents to be filed or issued in proceedings falling under this Order.

(ix) At the stage of leave, High Court should reject an ex- parte application where there are reasons to believe that the application for leave-

(a) was not made with utmost good faith and has omitted to make full and frank disclosure of all material facts; or

(b) was made after expiry of six months prescribed by the applicable law of limitation

2.3 THE APPELLATE JURISDICTION ACT, CAP 141 [R.E. 2002]

2.3.1 Introduction

Appellate Jurisdiction Act, 1979 regulates the functions and powers of the Court of Appeal. Powers of the Court of the Court of Appeal are to hear and determine appeals from the High Courts of Tanzania mainland and Zanzibar and from subordinate courts with extended jurisdiction [Sections 3(1) and 4(1)]. The Court of Appeal has the power to hear revisions either in the course of hearing an appeal [s.4 (2)] or upon application by a party [s. 4(3)].

2.3.2 Observations

2.3.2.1 Court of Appeal as a Creature of Constitution and Statute

There has been frequent debate whether the Court of Appeal being a creature of the constitution and its functions specifically provided in Article 117 (3) of the Constitution of the United Republic of Tanzania has power, apart from the Constitutional provisions, to hear appeals referred to it by other laws.

Some of the changes proposed in the Appellate Jurisdiction Act, 1979 cannot be carried out without first amending

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some clauses in the Constitution of the United Republic of Tanzania 1977. The proposed changes seek to expand the constitutional mandate of the Court of Appeal to hear appeals from tribunals and to entertain applications for revision and review.

2.3.2.2 Appeals to Court of Appeal from Statutory Tribunals

In recent time, many statutes establishing regulatory authorities and executive agencies have established tribunals and provided for appeals to the Court of Appeal from decisions of those tribunals. Examples here include the Tax Revenue Appeals Act, 2009; the Loans and Advances Realization Trust Act 1991; the Surface and Marine Transport Regulatory Authority Act, 2001; the Energy and Water Utilities Regulatory Authority Act 2001; and the Tanzania Civil Aviation Authority Act, 2003.

Although the Court of Appeal hears appeals from Tribunals and applications for review and revision, it has no power to do so under the Constitution. A leaf may be borrowed from the provisions of Article 164 (3) of the Constitution of the Republic of Kenya, 2010 which has express provisions for the Court of Appeal of Kenya to hear appeals from tribunals and hear applications as well.

2.3.2.3 Power of the Court of Appeal to Review its own decision

The Court of Appeal has also held in a chain of decisions that it has power to review its own decisions despite there being no express provision in the Constitution or in the Appellate Jurisdiction Act. However, Rule 66 of the Court of Appeal Rules 2009 provides the procedures for Review. The Court has always justified its power to

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review its decisions on the basis of inherent powers [see Court of Appeal decisions in: Transport Equipment V. Devram P. Vallambia, Civil Application, No.18 of 1993, Court of Appeal of Tanzania at Dar es Salaam; (ii) Felix Bwogi t/a Eximpo Promotion Services Ltd v. Registrar of Buildings, Civil Appeal No. 26 of 1989 Court of Appeal of Tanzania at Dar es Salaam.

2.3.2.4 Right to Appeal to the Court of Appeal

The Appellate Jurisdiction Act, 1979 categorizes matters which can be appealed as of right and matters which are appealable with leave of the Court or High Court and matters which are appealable with a certificate on a point of law. A party intending to appeal must find the proper slot. Failure to obtain leave to appeal or a certificate where one is required renders the appeal incompetent. Many ordinary people do not understand this distinction.

Moreover, decisions of the Court of Appeal, state expressly that the right of appeal is a creature of statute. One cannot appeal unless the law permits such an appeal. A party cannot invoke the Constitution as the basis of a right of appeal.

2.3.2.5 Observations on the Leave to Appeal to Court of Appeal

A further issue in relation to the Court of Appeal is that provisions requiring a party to obtain leave to appeal to the Court of Appeal, or obtain a certificate that point of law is involved should be repealed in every statute. For example what is the justification for requirement of leave for proceedings emanating from the High Court Land Division and High Court Labour Division in its original jurisdiction? The argument from several lawyers is that those provisions hinder the right of appeal conferred by Articles 13(6) and 117(3) of the Constitution. Scholars

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argue that the provisions in s.5 (1) (s) and s. 5 (2) to the Appellate Jurisdiction Act impose unnecessary hurdles to the right of appeal which the Constitution has granted unconditionally. Furthermore, there is no justification as to why an appeal from the decision of the High Court in the exercise of its original jurisdiction in land disputes requires leave to appeal to the Court of Appeal, while there is no such requirement for other decisions of the High Court in its original jurisdiction. This debate has raged around the question whether, the provisions of Section 5 (1) ( c) and 5(2) of the Appellate Jurisdiction Act relating to procedures of appealing are consistent with Articles 13 (6) and 117 (3) of the Constitution of the United Republic of Tanzania 1977 as amended.

Generally, the entire appeal process to the Court of Appeal has been expedited by the automation introduced by Rule 106 to the Court of Appeal Rules 2009 where appeals are argued by written submissions and there are timelines within which each party must file its written submissions.

2.3.2.6 Stakeholders’ Observation and Recommendation

It is conceded that the wording of Art 117 of the Constitution of the United Republic of Tanzania should be amended to encompass powers to the Court of Appeal to hear and determine revision and review. However it was observed that section 4(2) and 4(3) of Appellate Jurisdiction Act provides for the power of revision of the Court of Appeal. If the Constitution provides for those powers it means that section 4 (2) and 4 (3) will have to provide for modalities of lodging revision and review. This will be in consistence with Article 17 (4) of the Constitution which empowers the parliament to enact laws to provide for the modalities of

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lodging appeals to the Court of Appeal and the grounds of appeal.

Some stakeholders recommended that there is no need of obtaining leave of the High Court to appeal to the Court of Appeal because it appears that in practice it takes time to obtain such leave. There should be a direct access of appealing to the Court of Appeal without obtaining leave to appeal to the Court of Appeal to enable timely justice for all. However, other stakeholders were of the view that the provisions on the requirement of leave and certificate on the point of law should be maintained as that is in the spirit of Article 117(4) of the Constitution.

On the issue that Article 117 (4) of the Constitution combined together with section 12 of the Appellate Jurisdiction Act empowers only Chief Justice to make rules on matters relating to appeals to court, stakeholders recommended that whenever court finds a lacuna in the law or rules on a substantive issue it should refer the matter to the appropriate authority for the necessary legal intervention. Court should be vested with the power to rectify by filling the lacuna on procedure.

2.3.2.7 Recommendations on Appellate Jurisdiction Act:

1. The powers of the Court of Appeal on Revision and review should be expressly provided for in the Constitution.

2. The Constitution should have an express provision which empower the Court of Appeal to hear appeals from tribunals which their establishing law require appeals to be channelled to the Court of Appeal.

3. There should be no restrictions on the right to appeal. Instead there should be a provision in the Appellate

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Jurisdiction Act which allows full access to the Court of Appeal providing that “in civil proceedings, an appeal shall lie as of right to the Court of Appeal against every decree, order, judgment, decision or finding of the High Court; subordinate court with extended jurisdiction or tribunal” ; and (b) No appeal shall lie against any preliminary or interlocutory decision or order of the High Court unless such decision or order has the effect of finally determining the matter.”

2.4 MAGISTRATES’ COURTS ACT, CAP 11 [R.E. 2002]

2.4.1 Observations:

1. Magistrates Courts are the backbone of the judicial system in Tanzania.

2. Primary Courts: There was a consensus among the stakeholders that the Primary Court in its present set up has outlived its usefulness as a customary law and Islamic law court. Society is now not organized along tribal customary lines but rather it has been very mixed. Practically, the customary law as hitherto knows is very rarely applied if at all.

2.4.2 Primary Courts Sitting with Assessors:


There was also a consensus that the requirement of the court sitting with assessors who in fact are judges of both fact and law has also outlived its usefulness. Assessors were necessary when customary law was strictly applied. According to the stakeholders, the fact that codification of customary law has been effected makes the position of the assessors as expounders of customary law redundant. Also, the fact that society is now

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heterogeneous makes the application of customary law unlikely.

2.4.2.2 LRCT Recommendation:

The presence of assessors in Primary Courts should be limited to disputes involving customary and Islamic Law and the assessors should not have any power in decision making.

2.4.3 Removal of Lay Magistrates from Primary Courts:

Lay magistrates are magistrates who are serving at primary courts and they hold certificates of diploma in Law from recognized institutions.


Most stakeholders recognized and commended the fact that the judiciary has now taken measures aimed at removing the semi-trained Primary Court Magistrates and instead employing graduates as Primary Magistrates. Hence, according to the respondents, the prohibition of Advocates from appearing before the Primary Courts is also unnecessary.

2.4.3.2 Recommendations

(i) The Magistrates Courts Act 1984 should be amended to ensure that in the interim lay primary court magistrates continue to determine civil cases under their current jurisdictions until their cadre is completely phased out.

(ii) Primary Court Magistrates who are law graduates should be conferred enhanced jurisdiction over and above the jurisdiction enjoyed by Lay Magistrates.

2.4.4 Advocates at the Primary Courts

The Magistrate Court Act forbids any advocate or a public prosecutor to appear or act for any party in any proceeding before the Primary Court.2


Stakeholders opposed the proposal to allow paralegals to practice in Primary Courts for the reason that there is no mechanism to control their practice as in the case of private advocates who are controlled by Tanganyika Law Society. Law is a profession like other professions. They gave an example that lack of medical doctors does not entitle nurses to conduct operations to patients.


Advocates and State Attorneys should be allowed to appear in Primary Courts where the court is presided over by qualified law graduates.

2.4.5 District Courts

District Courts are in terms of section 4(1) of the Magistrates Courts Act, 1984 established in every District. The District Court is constituted when it is presided over by a magistrate who is either a District Magistrate or a Resident Magistrate. District Courts have appellate and revisional jurisdiction over primary court decisions. They have concurrent jurisdiction with Resident Magistrate Court on original jurisdiction.

2.4.5.1 Stakeholders’ recommendation

Stakeholders recommended that District Court should be maintained even though the cadre of District Magistrates without law degrees is being phased out.

2.4.5.2 Observation by the Commission

The present setup of the District Court should be maintained. The move by the judiciary to phase out the old cadre of the District

2 Section 33 of Magistrate Court Act Cap. 11 [R.E. 2002].

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Magistrate and replacing them with professionally qualified magistrates is commendable.

2.4.6 The Resident Magistrates Court:

The Chief Justice is empowered under section 5 of the Magistrate Court Act to establish Courts of a resident magistrate.

2.4.6.1 Stakeholders’ recommendation

The court hierarchy should be modified to expressly show that Resident Magistrate Court is at a higher level to District Court, this will increase chances of appeal and remove ambiguity in jurisdiction and administrative powers.

2.4.6.2 Observations on Resident Magistrates Court:

The present setup of the Resident magistrates Court needs to be reviewed. There is a clash of jurisdiction between this court and the District Court. Except in so far as extended jurisdiction is concerned, the jurisdiction of these courts is nearly similar. The only difference is that the territorial jurisdiction of the Resident magistrates Court is wider than that of the District Court.

2.4.6.3 Recommendation on Resident Magistrates Court:

Two possible approaches towards rationalization of this system are recommended:

(i) Either by a complete removal of the Resident Magistrates Court and instead having District Magistrates of different grades according to their seniority. This will entail in substance the repeal of section 5 of the MCA, a move will not cause a significant change in the judicial system and practice as it is now. It will eliminate even the confusion that exist where the two courts use the same registry and are manned by professionally qualified magistrates; OR

(ii) The Resident Magistrates’ Court should be renamed as the Regional Magistrates’ Court with jurisdiction over the whole

Region within which it is established. This should have exclusive original jurisdiction over landlord and tenant matters, appellate and revisional jurisdiction over the District Court enhanced original pecuniary jurisdiction over all civil matters and may be granted extended civil jurisdiction. This will be the major source of new appointment for Judges of the High Court. The advantage of this setup will be to reduce the number of cases filed in the High Court, to bring higher courts nearer to litigants and to have a good training ground for future Judges.

(iii) It is proposed that the Primary Court magistrate who are law graduates should hear matters where the amount does not exceed Tsh. 50,000,000/=; District Court Magistrates should hear matters whose value exceed Tsh. 500,000,000/= but fall under 1 billion shillings and Regional Magistrate Tsh. 1 Billion.

2.5 THE WARD TRIBUNALS ACT, CAP. 206 [R.E. 2002]

The act was passed in 1985 and came into force on 1st July, 1988. Ward tribunals are established in every ward. The ward is an administrative entity below a District. Ward Tribunal is managed by the Ministry of Regional Administration and Local Government.

2.5.1 Observations:

1. This law was enacted in order secure peace and harmony within the local society by the employment of the reconciliation procedures in matters of dispute settlement.

2. It was introduced as part of the decentralization process which was aimed at enabling people in their local areas to be more involved in their affairs. The Ward tribunals were expected to take away a substantial part of the work load of the Primary Court and thus to ensure that justice was obtained swiftly and in a more comprehensible manner to the community.

3. These are established for every ward of Tanzania under section 3 of the Ward Tribunals Act Cap. 206 [R.E. 2002]. Under Section 5 of this Act, the qualification for membership of the Tribunal

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is minimal, and people trained in law are specifically barred. Practice has shown that since these members are elected by the Ward Committee, in most cases the positions have been taken to be political.

4. It has been generally observed that the Ward Tribunals have been manned by lay people who do not know the boundary between judicial office and administrative office. These have been a major source of corruption in the administration of justice, and instead of promoting compromise they have adopted the adversarial procedures of administration of justice.

5. People aggrieved by decisions of the Ward Tribunals have been complaining that they face difficulties accessing copies of proceedings when they want to challenge the decisions in courts of law. Sometimes the records given to parties to the dispute are falsified and sometimes aggrieved parties have to bribe to get records of proceedings.

6. That the Primary Courts which was intended to have a supervisory role over the Ward Tribunals do not exercise this role.

2.5.2 Stakeholders’ observations and Recommendations

Stakeholders recommended that the qualifications of members of the Ward Tribunal should not include legal knowledge as this will erode the primary rationale behind the establishment of Wards Tribunals. Wards Tribunals should remain as quasi-judicial bodies. They further recommended that members of these tribunals should be well paid to avoid corruptive practices.

Stakeholders also recommended that members of the Ward Tribunals should be trained as often as possible. Stakeholders observed that the law is clear that Primary Courts are vested with the power to supervise Ward Tribunals however, in practice Primary Courts do not exercise their power and hence there is a need for reminding Primary Courts to

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exercise their supervisory powers over Ward Tribunals.

2.5.3 Recommendations on Ward Tribunals:

1. The Ward Tribunals should be retained; however major reforms should take place so as to achieve the purpose of their establishment. The reforms should include qualifications of members who sit in the tribunals, jurisdiction and powers.

2. The Ministry responsible for Ward Tribunals should allocate enough funds to facilitate smooth operation of the tribunals.

3. The Members should be well remunerated so as to minimize corrupt practices.

4. The Primary Court Magistrates should be reminded to exercise their supervisory role over Ward Tribunals.

5. Members of the Tribunals should be trained so they can discharge their duties efficiently.

2.6 THE LAW OF EVIDENCE ACT, CAP 6 [R.E. 2002]

2.6.1 Observation:

1. There is a consensus that the court should statutorily be given a more active role to play in the process of hearing by making changes which will enable the court to take a direct role in examining the parties and their witnesses and to demand that particular evidence relevant to the dispute be brought. In short, should there be a move towards the formalization of a procedure akin to the inquisitorial procedure and thus marking a departure from the traditional adversarial system.

2.6.2 Observation on ICT and Law of Evidence:

1. “Unknown to most of us, we are living inside and alongside a revolution of stupendous power and energy. It is not a communist, socialist, capitalist or even a religious revolution. It is the ICT revolution, the revolution of information communication technologies that is changing the nature and patterns of our social, commercial and political interactions. Like most revolutions, its

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true scope cannot yet be grasped nor can all the issues it raises be clearly understood even by those at its cutting edges….”- By Dominic Odipo, The East African Standard, Friday, June 20, 2003.

2. ICT has thrown challenges on judicial systems. New laws must be enacted to attune the society to the ICT revolution. For example, electronic evidence has defied fundamental concepts of admissibility of documentary evidence. Electronic evidence has raised new questions regarding reliability, authenticity, rule on hearsay, and even what the best evidence is.

3. Use of computers and other forms of electronic storage and communication systems are fast replacing the traditional paper-based methods of keeping records and communications.

4. Examples of sources of electronic evidence now in common use include:- Computer print-outs, information storage devices such as disks, tapes and microfilms, telegraphic transfers, faxes, electronic money transfer, pre-paid Electricity Bills [LUKU], water and electricity bills being paid through mobile phones.

5. Banks no longer use ledger cards and vouchers, everything is now computerized. Transactions are now conducted through: e-mails, mobile phones, Automated Teller Machines (ATM), electronic Funds Transfer Facilities.

6. Records of facts are no longer restricted to writings or marks on papers. Records of facts now appear in Servers (a Server is a computer that provides services used by other computers). For example a web server serves up web pages; Microfilms (a film on which printed materials are photographed at greatly reduced size for ease of storage); Diskettes, USB devices, CDs, VCDs, DVDs, and CD-ROMS.

7. The Evidence Act, 1967 was amended by the Written Laws (Miscellaneous Amendments) Act, Act No. 15 of 2007. Section 40A was added to make admissible in evidence in any criminal proceedings: an information retrieved from computer systems, networks or servers; or the records obtained through surveillance of means of preservation of information including facsimile machines,

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electronic transmission and communication facilities; and also the audio or video recording of acts or behaviors or conversation of persons charged with a criminal offence. Section 40A in addition makes admissible, information retrieved from computer systems, networks or servers. Law of Evidence now defines “Computer Systems”, “networks” or “servers”. This gives investigator wide latitude to collect as evidence information in electronic formats.

8. It has been observed that in India, the last few years the term computer has occupied a very significant position in almost all the spheres of the lives of people of India. In this electronic era, computers play a very important role not only in the life of individuals but even various companies and other body corporate. But on one hand where these computers have come up with end number of contributions toward their achievements and developments, on the other hand they have also provided a new face to the criminal and anti social activities. Keeping this very fact in view, the body of law in order to keep its momentum in accordance with the time has brought about few changes in its statute3.

9. India has a framework piece of legislation (India Information Technology Act, 2000) that cut across the Indian legal system to give recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, which involve the use of alternatives to paper-based methods of communication and storage of information.

2.6.3 Stakeholders’ Observations and Recommendations ICT necessitated shift from the old ways of recording, storage, retrieval, certification and transmission of records. The modes of filing documents, the forms, role and duty of the Court Registry must undergo comprehensive reforms including the skills required of officers serving in such registries.

Stakeholders were also of the view that the issue of electronic evidence is not limited to admissibility, authenticity and weight to be accorded to data based evidence, but rather, how do we transform our rules of procedure and evidence to adopt technological advancement.

3 Mr Raunak Singh, IVth BSL LLB, ILS Law College, Pune [INDIA], Admissibility of Computer Records in Evidence

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The concerns raised on admissibility of electronically generated documents are rather overblown. In reality even in the era of paper based documents, admissibility of any document or evidence does not constitute acceptance of its contents or genuineness but rather its weight to be accorded to such evidence on the balance of probabilities.

However, there are greater challenges posed to other laws, for instance revenue collection restrictions on admissibility of certain transactional documents provided in the Stamp Duty Act, Cap. 189[R.E. 2002]. For instance section 47 (1)” No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive the evidence or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped”.

The Stamp Duty Act prohibits admission of certain documents unless there is evidence of payment of the stamp duty imposed. It is questionable whether, while an e-mail transaction could be valid as to a sale of land as it was held in the case of Tanzania Bena Co. Ltd v. Bentath Holdings Ltd, Commercial case No.71/2002 (unreported), but the issues arises as to whether the court would have come to the same conclusion had the issue of stamp duty been brought to its attention. The issue for consideration therefore, should be how to realign our laws to respond positively to technological advancements.

Some stakeholders have reservations on the proposal to replace oral evidence in all cases with depositions of sworn statement by witnesses. Our justice system is premised on fair hearing, based the process of examination of witnesses in an open court. This includes the right of cross-examination of the witness by the other party so as to enable the court to gauge the weight to be attached on each piece of evidence adduced before it. Understandably, in proceedings were parties are not represented the tool of cross examination is lost. Probably we should consider the adoption of the procedure relating to spouses in criminal cases as provided under section 130 (3) of the Evidence Act, to impose a duty to the trial Judge and magistrate to explain to an unrepresented litigant his right to cross examine and the purpose of cross examination, and such explanation to be recorded by the court.

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2.6.4 Recommendations:

(i) The definition of a document under Section 3 of the Evidence Act 1967 should be extended to cover modern forms of communication. The admissibility of electronically generated documents such as e-mails or sim messages also needs to be incorporated in the Evidence Act.

(ii) The decisions of the Commercial Division, High Court of allowing electronically generated documents to be admitted subject to compliance with the evidential procedures though still untested in the Court of Appeal, should be adopted. These decisions which should be adopted appear in the cases of (i) Lazarus Mrisho Mafie & Another v. Odilo Gasper Kilenga(by Makaramba, J.) and (ii) Federicco Gellini v. Jacco Du Plessis Safaris of South Africa & 6 Others, Commercial Case No. 67 of 2004, High Court of Tanzania, Commercial Division ( Massati, J.(as he then was).

(iii) Law of Evidence Act of Tanzania should learn best practices from other Common law countries such as U.K, Canada and India. The Commission further recommends enactment of Data Protection Act.

2.6.5 Position or Posture of Witnesses While Testifying

Observation:

2.6.5.1 The Chief Justice Circular Number 6 of 1997;

Directed the courts to allow witnesses to sit while giving their respective testimony. The Commission is of the opinion that this directive of the Chief Justice should now be translated into a specific provision.


The Commission therefore recommends that witnesses testifying in courts should have the option of testifying while in a sitting position on a chair, or bench or similar available facility, provided that witnesses who wish to testify while standing should be allowed to do so.

2.7 JUDICIARY ADMINISTRATION ACT, No. 4 of 2011

2.7.1 Observations:The enactment of the Judiciary Administration Act, 2011 No. 4 of 2011 brought in its wake, decisive changes that includes the taking away from Registrars and other judicial officers, purely administrative responsibilities like finance, procurement and other non-judicial functions. The Judiciary Administration Act, 2011 came into operation on 1st March 2012 vide Government Notice Number 65 of 2012.

The Chief Court Administrator (CCA) has taken over from the Registrar of the Court of Appeal (RCA) the overall administrative responsibilities as new Chief Executive Officer of the Judiciary Service responsible to the Chief Justice for day administration of the Judiciary. Registrars, Directors and Magistrates-in-Charge are all judicial officers heavily involved in purely administrative matters. By vesting all administrative responsibilities on CCA and Court Administrators, judicial officers will be available to expedite the disposal of cases- which is the core constitutional function of the Judiciary.


(i) Following the taking of the administrative responsibilities away from Registrars, these judicial officers should be redeployed to expedite the disposal of cases.

(ii) Judicial powers of the Registrars which are provided for under Civil Procedure Code, appellate Jurisdiction Act and other statutes should now be used efficiently.

(iii) Chief Justice should be requested to issue Circular to identify functions which Registrars should perform.

2.7.2 Need to Prepare and Display Cause Lists to Inform the Members of the Public Observation:

Cause lists are the scheduling of cases which are supposed to be heard by the courts on following day or the following week. Cause lists invariably inform the parties and their advocates about the court room where their

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respective cases are scheduled, time when their cases shall begin and the presiding Judge or Magistrate. The administrative Circular of the Chief Justice underscored the importance of cause listing of cases to inform the parties and the public at large. The Commission believes that it is now time to reduce the directives of the Chief Justice contained in administrative circular ([CJ Circular No. 2 of 1990]) to be legislated.

2.7.2.1 Recommendation

(i) Registrars, in High Court and Magistrates in Charge in the magistrates’ courts, should ensure that Cause Lists are prepared and displayed to the court notice boards and in the website of the Judiciary where available.

(ii) The Cause Lists shall indicate the name of presiding judge or magistrate as the case may be.

(iii) The Cause lists of the High Court Main Registry, High Court Zonal and Divisional Registries and all magistrates’ courts should be made available on the website of the Judiciary.

2.7.3 Need for Specific Provisions that Oblige Regular Stock-Taking should Also Deal with Delays Occasioned by Cases which Disappear from Track

The Chief Justice’s Circular No. 1 of 1992 read together with the Chief Justice’s Circular Number 3 of 1997 in their totality noted that sometimes cases disappear from track and become completely forgotten, thereby contributing to delays and backlogs. These cases cease to come up before any Judge, Registrar or Magistrate. This shows that Judiciary needs a proper system of case management which ensures not only speedy flow of cases through the courts, but also does not allow cases to disappear from the attention of court.Further, in order to ensure that the Judiciary attains its goal to ensure that cases are disposed of within two years and the level of backlog of cases is reduced, courts should carry out regular stake taking by physically counting the case files and arrange the results of the count in accordance with the years of pendency in the court concerned.

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2.7.3.1 Recommendation

Commission recommends the enactment of appropriate provisions to underscore the duty of courts to carry out stock-taking of cases:

(i) Registrars, in High Court and Magistrates in Charge in the magistrates’ courts, should carry out stock taking and within 24 hours the forward the results to the Chief Registrar and Judiciary Computer System.

(ii) Stock-taking should be conducted at the following dates:

(a) Last day of March of every year;

(b) Last day of June of every year;

(c) Last day of September of every year; and

(d) Last day of December of every year.

(iii) In case the last days mentioned above fall on a public holiday or a weekend, then stock-taking should be conducted on first working day.

(iv) The stock-taking should be so conducted as to determine the actual number of cases or applications that are pending and the number of cases or applications that have been finalized and await judgments or rulings, as the case may be.

2.7.4 Keeping Records of Assignment of Cases to Judges and MagistratesPrincipal Judge, Judges/Magistrates-in-Charge must put in place mechanisms that ensure that the cases which they periodically assign to judges or magistrates progress towards conclusion and finalization and are not stuck up along the way for any reason. The importance of steady progression of cases was observed by the Chief Justice in his Circular No. 3 of 1993. He emphasized the need for the Principal Judge, Judges/Magistrates-in-charge; to closely follow-up on cases or applications that are filed to ensure that record of assignments of fresh cases and applications to judges and magistrates is properly kept and maintained.


Commission recommends the enactment of specific provisions which should ensure that:

(i) Every working Friday, or Thursday, when the working Friday is a public holiday, Registrar and Magistrates in charge should cause to be prepared a Disposition List of fresh cases and applications filed during the week and the presiding Judges or Magistrates to whom such cases are specifically assigned.

(ii) Disposition List should be sent to a specific judicial or non-judicial officer appointed by the Chief Registrar for purposes of records and statistics of the Judiciary.

2.7.5 Reserved Judgments and Rulings and the Need to Deliver Judgments within 90 Days

Observations:Delays are occasionally caused when judicial officers fail to deliver their judgments or rulings within reasonable time. Delays in delivery of judgments and rulings caught the attention of the Chief Justice who has on accession issued administrative circulars. The Chief Justice’s Circular No. 3 of 1993 also was deeply concerned about failure to set down specific dates when Judgments, Rulings or orders are to be delivered sometimes have contributed to the delays in conclusion of cases creating backlogs of cases. Later in 2001 (Letter Ref. No. JYC/C.40/8/156 of 19 October 2001-Delays in Delivering Judgments/Rulings- Addressed to the Court of Appeal Justices). Hon the Chief Justice expressed similar concern over delayed judgments when he said:

“It has come to my knowledge that a number of judgments and rulings have been pending for unconscionable periods. Some of those were reserved, strange as it may sound, almost two years ago. I do not believe there can be any justification for these delays. In fact, the delays constitute a great embarrassment to the

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Judiciary. I hereby call upon your Lordships to ensure that the reserved judgments and rulings in cases listed below are delivered as soon as possible and certainly by January 2002.”

Four years later, several laws were amended by the Judicial Service Act, 2005 to prescribe ninety (90) days within which Judges and Magistrates are to deliver their decisions. For example, following this amendment, section 28 of the CPC now provides that after the case has been heard, the court shall deliver a decision in open court as soon as possible, but in any case it shall not exceed ninety days of which due notice shall be given to the parties or their advocates, if any.

We all realize the importance of keeping a close tab on judicial officers who may need assistance in clearing overdue judgments. This can only be done if provisions are made to carry out periodic stock taking of overdue judgments and rulings.


After receiving the results from stock-taking exercise of pending cases, Principal Judge, Judges and Magistrates in Charge should draw to the attention of Judges and Magistrates concerned to their reserved judgments and rulings and should also indicate the time within which those reserved judgments and rulings should be delivered.

2.8 GOVERNMENT PROCEEDINGS ACT, CAP. 5 [R.E. 2002]Generally, a sovereign Government cannot be sued unless it allows itself to be sued. Government Proceeding Act Cap. 5 specifically provides for the procedure on how the Government in Tanzania may be sued. It prescribes the rights and liabilities of the Government in civil matters.

The Government Proceedings Act, Cap.5 [R.E.2002) does not operate alone. It is supplemented by the Government Proceedings (Procedure) Rules, the Office of the Attorney General (Discharge of Duties) Act No.4

of 2005 and the Attorney General (Discharge of Duties) Regulations 2006; the Local Government District Authorities Act 1982; and the Local Government (Urban) Authorities Act, 1982 make provisions on Local Government authorities can sue or be sued. The main issues with regard to proceedings against the government are:

2.8.1 Jurisdiction of the High Court in suits against the Government

Only the High Court is seized with jurisdiction to try suits against the Government (Sections 6(4) and 7). Subordinate courts have no jurisdiction in suits against the Government.

Taking into consideration the geographical distribution of High Court centres in the country restriction of jurisdiction to High Court only means many people find it difficult to access the High Court when suing the government. A resident of Shinyanga or Kigoma must travel to Tabora. A resident of Lindi region must travel to Mtwara when intending to institute a suit against the government. Likewise, a resident of Tarime District in Mara region has to travel to Mwanza to file his suit against the Government.

2.8.1.1 Stakeholders’ observation and Recommendation

Stakeholders recommended that filing of cases against the government should not be restricted to High Court only, the law should extend jurisdiction to subordinate courts taking into consideration the geographical distribution of High Court centres in the country as well as easy accessibility of subordinate courts by the majority.


i. The Jurisdiction of the High Court to entertain suits against the Government should be maintained.

ii. Commission recommended that suits against the Government should continue to be filed against the Attorney General.

2.8.2 Requirement of 90 days notice

The Government Proceeding Act provides for a compulsory requirement that there should be a Notice of not less than 90 days served on the Chief Executive of

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the Government department, and a copy served on the Attorney General before instituting the claim. Section 6 (2) specifically requires the Notice to be titled “Notice of Intention to Sue the Government”; and must specify the basis of the claim. It is interesting to note however, although the notice is primarily served to the government department concerned, the suit itself is instituted against the Attorney General, who becomes a necessary party.

2.8.2.1 Stakeholders’ and Recommendation on 90 days notice

Stakeholders proposed that notice of intention to sue the government should not be dispensed with; however the requirement of the 90 days notice should be reduced to 21 or 30 days notice, with the exception of suits which require urgency such as suits on land or property matters.


i. We recommended that the requirement of 90 days should be maintained.

ii. We further recommended, in alternative, that the courts be empowered to dispense with the requirement of notice where circumstances demand so.

2.8.3 Enforcement of Court Decree and Orders against Government

It will be noted that on mainland Tanzania Government properties and those of local authorities cannot be attached in execution of a decree or order. A decree holder or holder of any other award against the government must obtain a certificate from the proper officer of the court and submit it to the Permanent Secretary of the relevant Ministry who will forwarded it to the Treasury Registrar (Section 16) for payment. There is no time limit for the Treasury Registrar to satisfy the decree or order. These shortcomings leave judgment debtors with no other relief when executing decrees against the government.

The situation is different in Zanzibar. Under the provisions of the Zanzibar Civil Procedure Decree government property is liable to be attached in execution of a decree.

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In the High Court Labour Division of Tanzania decrees are never executed before they are verified. It is submitted that this reduces the complaints about attachment of properties in execution of decrees even where the value of the properties is way higher than the decretal sum. Verification will also solve the issues relating to compounding of interest even where the law does not allow.

2.8.4.1 Stakeholders’ observation and Recommendations

Stakeholders recommended that the law should stipulate a specific time of 90 days within which the Treasury Registrar to certify the decree or order failure to that government property should be attached and sold.

Other stakeholders were of a contrary view that laws governing execution of orders against the government should be maintained though the Treasury Registrar should be given a time limit of 120 days for executing a court order. If they fail to do so within such specified time there should be penalties. This means that government properties should not be subjected for attachment.


It is recommended that there should be time limit within which the Government will be required to satisfy the decree or order granted against it, preferably, 120 days.

2.9 THE LAW OF LIMITATION ACT, CAP. 89 [R.E. 2002]The law prescribing periods of limitation set out maximum period within which those intending to sue or file their claims in courts should do so. Over time, memory of witness fade, witness die, evidence may be lost or destroyed. The law governing limitation period in civil cases is designed to urge litigants to sue as soon s possible or else lose their cause of action.

The Law of Limitation Act is applicable in civil actions unless there is any special statutory provision prescribing a different period of limitation. Section 43 for example provides that the Law of Limitation Act shall not

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apply to (a) criminal proceedings (b) applications and appeals to the Court of Appeal (c) proceedings by the Government to recover possession of any public land or to recover any tax etc.

2.9.1 ObservationsSection 44 empowers the Minister responsible for Legal Affairs to extend period of limitation. Stakeholders raised the following issues;

(a) Why should power to extend time for suits which are time barred be vested in the Minister responsible for legal Affairs (an executive arm) while extension of applications is left to judges/magistrates?

(b) Why in extending the period in case of suits the rule restricts it to half of the time prescribed while in applications the judges have no limitation on the amount time they grants (open-ended?).

2.9.2 Stakeholders’ Observation and Recommendation Some stakeholders recommended that powers to extend time should be vested to the court with jurisdiction to hear the matter and there should be a time limit for the extension. However some stakeholders observed that the neutrality of the trial court in extending the time within which to file an action which is otherwise time barred may highly be questionable. They observed that the current situation where the powers are in the Minister is far beyond the reach of the ordinary man on the street whose rights need to be protected. They recommended that a balance has to be struck between the two extremes and may be such powers be given to the High Court only even when such suit is to be filed in a subordinate court.

2.9.3 Recommendations

(i) The power of the Minister responsible for Legal Affairs to extend period of limitation in suits should be retained.

(ii) The periods of limitation prescribed in the Law of Limitation Act should remain.

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2.10 ARBITRATION ACT, CAP.15 [R.E. 2002]The Arbitration Act, Cap. 15 [R.E 2002] was enacted in 1932. This Act has been amended twice in 1932 and 1971. The Act applies only to disputes which, if the matters submitted to arbitration formed the subject of suits, the High Court of Tanzania would be competent to try them. The provisions in the Act have not incorporated the current developments in arbitration law. For a start the law in Tanzania is still based on the principle that the courts have supervisory power over arbitrations and thus the power to set aside or remit awards under certain grounds vaguely defined. New developments have given more recognition to arbitrators. Below are the developments that make the case for the Arbitration Act to be repealed and be replaced with a new Act that incorporates the many new developments in both domestic and international arbitrations. Also the new Act would make provisions for arbitration cases not currently covered by the current Act as well as remove the current confusion on the applicability of the provisions of section 64 of the Civil procedure Code and the 2nd Schedule to the Code by repealing the arbitration proceedings from the Civil Procedure Code. The new Act will be better implemented by new Rules of Arbitration to replace the current 1958 Rules.

The Arbitration Clause:

New trends in some jurisdictions are to allow the parties to waive their rights to challenge the award. This effectively ousts the jurisdiction of the courts out of such arbitration disputes. We should emulate England position, where this is permitted but the award can be challenged under certain circumstances. However we should go further and restrict any waiver of right to challenge an award or enforcement forum shopping if one of the parties is a public parastatal. This is to address the still rampant corruption in contract negotiations and execution of public contracts.

Recommendations

(i) Statutory prohibition of any arbitral agreement (arbitral clause) that waives the right of a party to challenge the award or contest the validity or enforceability of the arbitration agreement or arbitration proceedings or award.

2.10.1

(ii) A clause that enforcement will be according to Tanzanian law in Tanzanian courts if enforcement relates to assets of the other party or to a party situated in Tanzania (prohibit international enforcement forum shopping, such as the case where Dowans) should be restricted.

The Arbitration Act should incorporate important development aspects of arbitration such as

Greater transparency and clarity in the process of arbitration proceedings

Admissibility of electronic document and filing Acceptance of use of new medium of transmission of documents to the

tribunal and between the parties.Flexibility in the timelines for submission of pleadings by parties allowing

for extension of times if the arbitrators are satisfied with reasons advanced.Clearer provisions on the power of the local courts to compel witness

attendance (the courts in Tanzania have the power to compel witnesses in the same process as is available to court in respect of suits. However, the provisions in the Civil Procedure Act (Order XVI and sections 26-27) are not clear on who pays and how and the process for obtaining an order to compel a witness is too long for arbitration process)

Power of local courts to give orders to preserve the subject matter of the arbitration where arbitration is international or domestic.

Meaning of “final”

If a foreign award is sought to be enforceable in Tanzania and there are proceedings pending in the country where the award was made, then the award shall not be deemed final. The same is not applicable where the award is domestic. An award is domestic under Tanzanian law if the law applicable to the contract is Tanzanian law. For instance the Dowans award was domestic because Tanzanian law was applicable to the contract (section 28 of the Arbitration Act). The law is unclear whether the proceedings pending for the purpose of challenging the award meant that the award was to be deemed not final.

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Recommendation

(i) A provision to the effect that if there are proceedings pending in the court for the purposes of contesting the award, then the award shall be deemed not final and binding

4. Grounds for challenging arbitration awards or appeal against the awardThe Act has only two grounds namely if the arbitrator either misconducts himself or an arbitration or award has been improperly procured. What constitutes misconduct has been the subject of case law. In many other jurisdictions the law provides the list as well as case law.

Stakeholders’ Observations and Recommendations

Stakeholders recommended that the grounds for setting aside of arbitral awards by courts should be expanded to include i.e. where the agreement between the parties in arbitration is void.

Stakeholders also recommended the addition of some provisions to the Arbitration Act, Cap 15 [R.E. 2002] so as to enable our courts to retain the supervisory role over domestic and foreign tribunals. In addition, the Fourth Schedule of the Arbitration Act should be amended to replace the Geneva Convention on the Execution of Foreign Arbitral Awards 1927 with the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards of 1958.

New rules should be made to provide for proper procedures for setting aside and enforcement of both domestic and foreign awards. It was further recommended that laws and rules regulating arbitration should be harmonized. Members of the judiciary have to be trained on arbitration laws likewise arbitration law should be one of the subjects at university level.

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2.10.2

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2.10.3 RecommendationsFrom case law and express provisions of the law in other common law countries, the following should be grounds for setting aside an arbitration award:

(ii) Irregularity (iii) Contract against public policy(iv) Enforcement against public policy(v) Challenge on substantive jurisdiction(vi) Challenge on substantive justice and when it should be

raised(vii) Arbitrators ignored evidence before them(viii) Arbitrators contradicted their own findings(ix) Arbitrators not applying applicable law(x) Contract against the law of Tanzania(xi) Enforcement against a law of Tanzania( for instance against

the Anti- Corruption law)(xii) Right to appeal on a point of law arising out of an award if

the point was raised in the arbitration proceedings(xiii) Error on the face of the Award irrespective of whether or

not the matter was specifically referred to the tribunal(xiv) Refusal to grant application of a party for interest without

giving reasons or awarding one party interest and denying another interest without giving reasons

(xv) Impartiality (during the proceedings and including impartiality by arbitrators in the consideration of the evidence and facts before the tribunal)

(xvi) Misconduct(to be clarified in its widest sense using case law on the subject which has clarified what constitutes misconduct)

(xvii) Impropriety(xviii) If arbitrators considered issues beyond their mandate(xix) If they did not consider and issue at all or not fully(xx) Decision made on a document not before the arbitrator or

opinion of arbitrator

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(xxi) Arbitrator’s decision based on his own opinion(xxii) If arbitrator introduces new issue post the hearing and closing

of the proceedings which was not argued by the parties(xxiii) Arbitrator is biased in the consideration of the evidence and

facts before him(xxiv) Lack of capacity of parties to contract or Lack of valid agreement;(xxv) Lack of notice of appointment of an arbitrator, or of the arbitral

proceedings or inability of a party to present his case;(xxvi) Award deals with matters not covered by submission to arbitration;(xxvii) Composition of the tribunal or conduct of the of arbitral proceedings

contrary to effective agreement of the parties;(xxviii) A party has concealed any matter which he ought to have disclosed,

or has wilfully misled or deceived the arbitrator or umpire.(xxix) An application to set aside the award must be made within

90 days from the date of the receipt of the award. This might require an amendment of the Law of Limitation Act

(xxx) Where a party did not receive a fair hearing (xxxi) Where a party was improperly represented

5. Grounds for remitting an award to arbitratorsCurrently the courts have the power to remit an award to the reconsideration of the arbitrators (sec.15) but do not set out the grounds for doing so. This vague clause has not helped in the various arbitration challenges that have been before Tanzanian courts, Dowans case being one of them. The trend is to list ground for remitting an award but also give room to the court to remit if it deems just to do so.

There is should be express provisions on the grounds for remitting an award for the reconsideration of the arbitrator. The development is that case law has developed what grounds merit remittance of the award which is worth listing them in the law.

Recommendations:

The Commission recommends that an award is remittable if:(i) There are clerical errors whether on the face of the award or the documents

supporting the award

(ii) If arbitrators considered issues beyond their mandate (this ground may also be ground for setting aside an award, but the court may remit an award for reconsideration of the arbitrators if it deems it appropriate to do so)

(iii) Where the court decides it is just that the award is remitted for the reconsideration of the arbitrator

6. The Arbitration Act should also provide a more elaborate arbitral process such as:

Request for arbitration.

Answer.

Statement of case.

Reply.

Rejoinder.

Document exchange.

Discovery process.

Confidentiality and when party may disclose.

Witness statements.

Reply witness statements.

Expert evidence.

Expert witness.

Compelling a witness to appear before the tribunal and who pays for the costs initially.

Opening submissions.

Authorities and the duty to provide copies of authorities relied upon to the other party and to arbitrators.

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Hearing and daily recording and daily availability of transcripts to parties at the end of each day of the hearing.

Closing submissions.

7. The Arbitration Act should provide for other important issues such as:

Provide for enforcement procedure that the arbitrator or his advocate has filed the award with the High court of Tanzania. The receipt of the award by the registrar of the High Court constitutes the filing of the award.

The Registrar to maintain a register of arbitration awards and a file on the award which should be used if a party wishes to enforce or challenge the award.

If the party against whom the award is to be enforced files a petition to challenge the award in terms of the law, then the award shall be deemed not final.

No application for stay or leave to appeal is required for a party to appeal to the Court of Appeal on points of law arising from decision of the High Court on a petition to challenge the award or an application to enforce the award.

Severability of the arbitral agreement.The function and powers of the Chairman of the arbitral tribunal in relation

to making decisions, orders and awards.Revocation of arbitrator’s authority.Resignation of an arbitrator.Death of an arbitrator.General and several liability of parties to arbitrators’ fees and expenses.

Preliminary points about jurisdiction.

Competency of the tribunal to rule on its own jurisdiction.

Power of the local courts to compel witnesses to appear in international and

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local tribunals and provisions for sufficient money paid by party seeking for a witness to be compelled to appear.

What happens if money not paid for compelled witness.

Power of local courts to issue orders to preserve the subject of arbitration in respect of domestic arbitration as well as in respect of international arbitration involving a party from Tanzania.

Duties of the parties.

General powers exercisable by the tribunal.

Power to make provisional awards.

Power of the tribunal where a party defaults.

Form of the award which should be according to international best practice.

Power for arbitrators to withhold award if they are not paid or fully paid.

Power of the tribunal to correct errors and to issue new award.

Saving for the rights of a person who takes no part in arbitration proceedings.

Costs of the arbitration.

Power of the court in relation to service of documents.

Charge to secure advocates’ fees and costs.

8. The Tanzanian Arbitration Act lacks most of the key issues set out above which have largely derived from the English Arbitration Act and the practice of arbitration reflected in cases in England and other common law based countries. Part of the reform of arbitration law in Tanzania should include the repeal of the provisions of the Civil Procedure Code on court mandated arbitrations.

Rationale/ Objective

9. There is increasing number of business transactions in Tanzania the contracts of which contain arbitration as the choice for dispute resolution. Modernizing the arbitration law in Tanzania including applicable arbitration rules is now a business imperative. Provision for smaller arbitration matters whose value is below the jurisdictional threshold of the High Courts should be considered taking into account the local conditions and requirements in Tanzania

10. Some of the big transactions involve public corporations and Government as they implement reform programs and infrastructural projects. Recently, the trend by Government and its agencies and public corporations is to insist on Tanzanian law being the law governing these contracts. The urgency for a new arbitration Act that reflects recent developments in the law of arbitration and meets the needs of Tanzania is obvious

RULES2.11 COURTS VACATION RULES, G.N. NO. 307 of 1964

Rule 2 of the Rules provides that the Vacations to be observed in the High Court shall be from the 15th day of December to the thirty-first day of January, inclusive; and from the second Saturday before Easter to the first Tuesday after Easter, inclusive.

Rule three of these Rules provide that during vacations the High Court shall sit only for criminal cases and transaction of other business of an urgent nature; and Rule 4 provides that courts of resident magistrates and district courts shall hear civil cases in which advocates are engaged only if the cases are of an urgent nature. Rule 5 clearly states that subject to the provisions of section 186(2) of the Criminal Procedure Act, Cap 11, no court shall sit on Sunday or on public holiday.

2.11.1 Necessity of Court VacationsSome of the stakeholders expressed the view that since Judges and Magistrates have annual leave and enjoy public holidays like everyone else, there is no need to give them court vacations. Instead that time should

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be used for court work in order to reduce court delays.

Others felt that the Judges do deserve court vacations and that those vacations should be accompanied by other incentives like sending them abroad on official visits once in a while during those vacations. It is not the court vacations, they said, which cause delays of cases but workload on individual judges and other reasons.

However, the majorities were of the view that Judges deserve those vacations because they have heavy responsibilities and work under heavy pressure, but that those vacations should be reduced in duration.

Having considered stakeholders’ views and recommendations, and having considered practices in other Commonwealth jurisdictions, it is the Commission’s finding that the preponderant opinion is that these Vacations Rules should be maintained for Justices of Appeal and Judges of the High Court: they should not be extended to subordinate courts.

At the moment, subordinate courts hardly observe Court vacations even though subordinate courts have far more cases than the higher Courts. The Commission notes that subordinate courts do not work under as much pressure as the Judges and Justices of Appeal whose numbers are small. Judges and Justices of Appeal handle more complex and expensive cases.

Many Judges who were consulted were in favour of the reduction of the total number of days for Court Vacations.

2.11.2 Court vacation to be extended to courts subordinate to the High Court [Rule 2]

Some stakeholders proposed that this vacation should be maintained to Justices of Appeal and Judges of the High Court and not extended to subordinate courts. Other stakeholders proposed that magistrates should also be given a short mid-year vacation.

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2. 11.3 Duration and description of the Vacation [Rule 2]Some stakeholders were of the view that duration of the vacation days be reduced while others recommended that the vacation days should be retained as it gives Judges and Justices of Appeal ample time to write judgments. It was further proposed that there should be two vacations one in mid December to mid January and the other one in midyear around June for about ten days to take care of stress among Judges and Justices of Appeal. Others proposed a 45 days court vacation from 1st December to 30th January.Other stakeholders proposed that since every employee is entitled to have annual leave there is no need of having court vacation.

2.11.4 NomenclatureStakeholders proposed that the vacation should be called December Vacation and Midyear Vacation respectively in order to get rid of the religious connotation. The nomenclature for vacation causes religious bias. It is the Commission’s finding that the nomenclature for Court Vacations be altered to remove any connotation of religious bias. The term Court Vacation should be termed as Court Recess.

2.11.5 Law DayIt was proposed by stakeholders that because the end of year vacation will be ending at mid January, the Law Day should be at the end of January so as preparations to take place after the court vacation. Others recommend that law day should be in the middle of January. Others recommend it to be the first day after court vacation.

2.11.6 Recommendations(i) That the Court Vacations should be retained for Justices of Appeal and

Judges of the High Court, but they should not be extended to Subordinate Courts.

(ii) That Court Vacations should in no way interfere with individual Judges’ annual leave, which is part and parcel of the conditions of their appointments;

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(iii) That the duration of those Vacations be reduced;(iv) That during the Court Vacations, Justices of Appeal and the Judges of

the High Court shall attend to very urgent business as determined by each Judge during morning hours on working days on rotation basis, if necessary.

2.12 COURT FEES RULES, G.N. No. 308 of 1964The Schedule to the rules contains fees which must be paid in the high Court and magistrates’ courts in respect of all proceedings and matters other than those for which specific fees are prescribed by rules of court made under any Act; and the prescribed fees are, in general, payable by the person applying for the same.These Rules were enacted in 1964. Since then they were reviewed in 2002 under G.N. No. 430 of 2002. During this period, there have been substantial social and economic changes and we have witnessed a fast growing free market economy which has to some extent increased the country’s GDP and the value of the shilling has fallen drastically over these years.

Majority of the stakeholders raised no finger against these fees as being too exorbitant. Indeed, some wanted them increased, saying that lowering them might encourage busybodies to file flimsy cases and so inundate the courts even more.

2.12.1 Stakeholders’ Observation and RecommendationThere were divergent views by the stakeholders on the issue that whether the Government should pay court fees. Some were of the view that Government should not pay fees as this will lead to unnecessary complications and some Government cases may be struck out. Other stakeholders were of the view that the law should be reviewed so as to give room for the Government to pay the fees as it does in other services. Also the payment court fees by the Government will be in line with the principle of equality before the law.

On the issue of increasing or reducing court fees stakeholders recommended that the court should use its discretion power properly on deciding whether the fees should be increased or not. Some recommended that this fee should

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remain the same for the time being, and that they should be reviewed within the next five years. Others recommended that the current fees should be increased by 5% to 10% to reflect inflation rate.

2.12.2 RecommendationThe Commission, while aware of the need to make justice accessible to people with limited financial resources, feels that all the same justice cannot be free for everybody. It is accordingly recommended that these fees remain the same for the time being, and that they be reviewed regularly.

2.13 THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION FEES) RULES, G.N.NO. 275 of 1995 as Amended by GN. NO. 428 OF 2005)2.13.1 Position Paper Observation and Recommendation

CJTWG observed that Court fees can have an adverse effect on access to justice if they render the costs of litigation out of proportion to the remedy sought. They observed that, court fees at the High Court (Commercial Division) are excessively high. This deters litigants of limited financial means to access the Commercial Division. The CJWTG was of the view that the fees at the Commercial Division should be structures in such a way that they would not discourage litigants with large claims from accessing the Commercial Court. It was proposed that there should be a maximum of fees or a progressive threshold where fees will be reduced i.e. the more the claim the lesser the percentage.

2.13.2 Stakeholders’ Observation and RecommendationsSome of the stakeholders submitted that Fees should remain undisturbed .However they recommended for a charge of 150,000/= for adjournment but the court should have discretion to order the payment or not upon hearing reasons for adjournment.

2.13.3 Commission ObservationOn the course of this study, new rules, known as the High Court of Tanzania (Commercial Division Fees) Rules, 2012, were promulgated and came into operation on 1st July, 2012. It has been

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learnt that the concern raised in the previous rules has not been addressed in the new rules, specifically on the excessiveness of the fees payable. Hereunder are some of the fees under the new rules:

S/N Fees Amount

1. Filing Plaint, Counter-claim or setoff2% of the value of subject matter with a maximum of 10,000,000/-

2.Filing a suit where the subject matters cannot be valued

3,000,000/=

3.Application for restoration of mediation or suit

300,000/=

4. Adjournment of mediation or restoration 200,000/=

5. Interlocutory application 200,00/=

6. Chamber application 200,000/=

7. Filing pleading out of time 300,000/=

8.Application for review of judgement, reference or revision

100,000/=

9. Application to appeal out of time 100,000/=

10.Taking evidence of a witness on commission before hearing of the suit

100,000/=

11.Application for orders of mandamus, certiorari or injunction

300,000/=

12. Application for adjournment 150,000/=

13.Application for leave to file pleading out of time

300,000/=

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The Commission carefully considered the views and opinions of stake holders and their recommendations and feels that even the new fees are too high for ordinary Tanzanians leaving beyond one dollar per day. The Commission finds this is very contrary to the loud voice of the majority who clearly want these fees reviewed downwards.It is the Commission’s finding that these fees are already too high, due to fact that there still will be some litigants who are not financially strong who may be dragged in the court by rich claimants and therefore poor litigants will find themselves unable to pay the required fees.

2.13.3 RecommendationThat the current fees in the High Court (Commercial Court Fees) Rules, 2012 should be lowered to enhance access to court for poor litigants.

2.14 LANGUAGE OF THE COURTS RULES, G.N. NO. 307 OF 1964.Rule 2 of the Rules provides that the language of the High Court shall be either English or Kiswahili as the Judge holding such court shall direct, but the records of judgement or decision of the Court shall be in English. These Rules were lastly amended in 1996. Section 13(1) of the Magistrates Courts Act4 states that the language of primary courts shall be Kiswahili. Section 13(2) of the same Act provides that the language of courts of a resident magistrate and of district courts shall be either English or Kiswahili or such other language as the magistrate holding such court may direct; save that in the exercise of appellate, revisional or confirmatory jurisdiction by a district court (in which case the record and judgment may be in English or Kiswahili), the record and judgment of the court shall be in English.

It is the Commission’s finding that the Language of the Court Rules refers to the High Court only and not to subordinate Courts.

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As a matter of policy, all courts permit parties to address the Court in Swahili or English or both interchangeably. The law simply requires records to be kept in English for obvious reasons. It is noted that the decisions of the High Court and Court of Appeal are being used as precedents in the courts in other commonwealth jurisdictions. English is the most widely used language globally and no one wants to be left behind. To insist that Swahili should be the only language in all aspects of judicial proceedings is hard to justify. Above all, it will aggravate the lack of command and proficiency of English language by our lawyers.

2.14.3 Recommendations(i) That the language of the Court in the Court of Appeal should continue to

be English;(ii) That the languages of the Courts in the High Court, Court of Resident

Magistrate and District Court should continue to be English or Kiswahili as the Judge or Magistrate holding such court shall direct, but the records of proceedings, orders, rulings or judgment must be in English; provided that when hearing appeals from Primary Courts, the language of the Court must be Kiswahili but the record of proceedings, orders, rulings or judgments must be in English.

2.15 HIGH COURT REGISTRIES RULES, G.N. NO. 164 of 1971From the comments, opinions and recommendations received, it is the Commission’s finding that the majority of people want High Court Centre in every Region in the country so as to bring justice nearer to the people and so make justice more affordable as costs would be reduced. It is also the Commission’s finding that the current naming of High Court Registries as per Rule 3 is somewhat confusing in that the ordinary court user has in mind Criminal, Civil and Economic Crimes Registers. It is further the Commission’s finding that Rule 10 should be amended in order to bring certainty and avoid confusion.

2.15.1 Stakeholders’ Observation and RecommendationStakeholders proposed that the definition of term “commercial

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case” should be reviewed. However, stakeholders did not propose any alternative definition.

Stakeholders recommended that Rule 3 should be amended in order to provide for three registries of the High Court namely; Criminal matters, civil matters and Economic Crimes. Others recommended that there should be two registries; Civil and Criminal registries. Economic Crimes Registries should be a section within the Criminal Registry. Others were of the view that there is a need of creating another separate registry in future dealing with matrimonial and family division or probate matters.

Subject to the availability of resources both human and financial, it is recommended that each region should have a High Court District Registry.

2.15.2 Recommendations(i) There should established a High Court Centre in every

Region with adequate number of judges in each region to hear and determine even cases requiring a panel of Judges;

(ii) that Rule 3 be amended in order to provide that there shall be maintained three Registries of the High Court, one for criminal matters, a second for civil matters and a third for economic crimes;

(iii) That Rule 10 of the Rules be amended so as to provide that all formal and preliminary steps and all interlocutory applications in proceedings filed in a High Court Registry shall be taken or made by the Registrar, Deputy Registrar or District Registrar, as the case may be so as to remove possible confusion and so as to relieve Judges of the extra burden such applications are on Judges. Only when the Registrar feels that the matter needs the attention of a Judge should such a matter be referred to a Judge.

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2.16 THE CIVIL PROCEDURE (APPEALS IN PROCEEDINGS ORIGINATING IN PRIMARY COURTS) RULES, G.N. No. 312 of 1964.

2.16.1 Adjournment Rule 12(1) provides that an appellate court may at any time and from time to time, of its own motion or on application of any party, adjourn the proceedings to a date fixed or to be fixed by it. In such an event, sub-rule (2) of the Rule provides that, if the adjournment was without a fixed date, the court must fix a date for the resumed hearing and notify the parties accordingly, unless a party has indicated that he does not intend to appear at the hearing.These Rules appears to encourage laxity on the party of the court or the parties in that they apparently do not have to give any reasons for applying for adjournment nor is the court required to give any reasons for adjourning the matter on its own motion.

Rules should be amended to provide that the court shall not grant an application for adjournment unless such court is satisfied that the reasons for applying for an adjournment are sound. In the event the Court is inclined to adjourn a matter on its own motion, it shall be obliged to give reason for the same. This would discourage unnecessary adjournment; and that in any case such adjournment shall not exceed thirty working days.

2.16.1.1 Stakeholders’ Observation and Recommendations

There were divergent recommendations from the stakeholders as some of them recommended that the rules should be amended to restrict unnecessary adjournments. Others recommended that adjournment should not exceed 14 days, subject to gravity of the reason adduced.

2.16.1.2 Filing of Petition of Appeal

Rule 5 requires appeals to district courts to be entered in a register

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for the purpose. It also provides that a petition of appeal to the High Court must be filed in the district court, whose decision is being challenged, and the district court should endorse on the petition the date of filing and then dispatch it to the High Court. The High Court will then enter it in its register of appeals.

Most litigants are suspicious of court officials of a court in which they have just lost their case. There had been cases where petition of appeal had been lost or misplaced or the court record interfered with on reading the ground of appeal.

It is the Commission’s finding that many people feel that although on the face of it, it is convenient for parties to file their appeal to the High Court in the District Court which dealt with the matter in which they lost, they prefer to lodge their appeals directly in the High Court because they feel that it would be safer that way because sometimes petitions are lost by district courts who then deny having received them; sometimes, on seeing the petitions of appeal, District Court records are doctored to remove anomalies pointed out in the petitions of appeal.


Some stakeholders recommended that petitions of appeal should be filed at the High Court while other stakeholders recommended for the retention of current rules.

2.16.2 Recommendations

(i) that the Rules should give freedom to the parties to file their petitions of appeal either in the District Court whose appeal is sought to be challenged, or directly in the High Court which can then simply call for records from the District Court;

(ii) Rule 11(2) be amended so as to provide that the respondent shall be entitled to a copy of the petition without the need to apply for it;

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(iii) Rule 12 (1) be amended to provide that the court shall not grant an application for adjournment unless such court is satisfied that the reasons for applying for an adjournment are sound and, that in the event the court is inclined to adjourn a matter on its own motion, it shall be obliged to give reason for the same: this would discourage unnecessary adjournments; and that in any case such adjournment shall not exceed thirty working days;

(iv) For purposes of elegance and logic, Rule 16 should come after Rule 18; and

(v) That the life span of an appeal in District Courts should be six months with a possible extension for three months; and an appeal in the High Court in such cases should have a life span of one year from the date of filing but that the period may be extended by the High Court for good cause.

2.17 APPEARANCE BY OFFICERS OF THE GOVERNMENT RULES, G.N. No. 306 of 1964 These Rules apply to all causes and matters, other than criminal proceedings, in the High Court, the courts of Resident Magistrates, District Courts and, subject to the provisions of section 33 (1) of the Magistrates’ Courts Act, Cap 11, in Primary Courts, in which the Republic, the President or the Government or the Commissioner of Income Tax or the Postmaster- General is a party.

Any officer of the Government may appear, plead and act for the Republic, the President or the Government if such officer is authorized in writing in that behalf by the Attorney-General; any officer in the Department of Income Tax may appear, plead and act for the Commissioner of Income Tax if so authorized by the said Commissioner of Income Tax; and any officer of the Tanzania Posts Corporation may appear, plead and act on behalf of The Postmaster General if so authorized in that behalf by the said Postmaster General. (See Rules 3, 4 and 5 of the Rules)

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2.17.1 Stakeholders’ Observation and RecommendationsStakeholders’ observed that currently the numbers of State Attorneys and lawyers have increased hence are found almost in every district. Thus they can appear on behalf of the Government. They recommended that these Rules have now become obsolete and so they should be repealed as they serve no useful purpose.

2.18.2 RecommendationsIt is the Commission’s finding that many people are not aware of the existence of these Rules which served a useful purpose in the past, but they serve no useful purpose these days. In short, these Rules have now become obsolete. The Commission accordingly recommends that these Rules be repealed.

2.19 COURT BROKERS AND PROCESS SERVERS (APPOINTMENT, REMUNERATION AND DISCIPLINE) Rules, G.N .NO. 315 of 1997 as Amended by G.N. NO. 176 of 2008Court broker means a person who carries out, or who purports to carry out the functions of attachment and sale of property under an order of a court. Service of process is the procedure employed to give legal notice to a person (such as a defendant) of a court or administrative body’s exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal. Usually, notice is furnished by delivering a set of court documents (called “process’’) to the person to be served.

In Tanzania Court Brokers and Process Servers are governed by the Court Brokers and Process Servers (Appointment, Remuneration and Discipline) Rules, (G.N. NO. 315 of 1997). The rules provides for appointment, qualifications, performance evaluation, disciplinary measures, fees, charges and allowances of court brokers and process servers.

The study found several questions related to role of court brokers in execution of decrees. At heart of the problem is the motive to earn high

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commissions and fees which leads to unethical conduct and practices by court brokers. It was complained that Court brokers tend to attach property whose value is far in excess of the decretal sum. That in some cases they auction properties whose value is high for very low prices.

Stakeholders recommended that the law should provide for a prohibition of the sale of attached property below the market price. It should also require that before granting an application for attachment and proclamation of sale the Court should satisfy itself with the value of the property. Attachment in execution should be made to a property whose value is equivalent to the decretal amount. Also attachment should be made to a property of higher value if there is no property of equivalent value. Stakeholders further recommended that Court broker’s fees for execution of decree should be reviewed and code of conducts and ethics for court brokers should be prepared.

2.19.1 Stakeholders Observations and Recommendations

2.19.1.1 Appointment and discipline of Court Brokers (Rule 8 and 9)

Stakeholders observed that the procedures for appointment of court brokers leave much to be desired. They recommended that the public should be involved in process of appointing court brokers. They further recommended that there should be a disciplinary body which will regulate discipline of court brokers.

2.19.1.2 Whether appointment of court brokers should comply with the provision of the Public Procurement Act, No. 21 of 2004 as amended by Act No. 7 of 20

Stakeholders proposed that the appointment of court brokers should comply with the provision of Public Procurement Act, No. 21 of 2004 as amended by Act No. 7 of 2011.

That the Judiciary Tender Board would be required to invite tenders from those who are interested to be appointed as court brokers to

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tender and the court brokers Rules shall be the basis of their pre-qualification. Some stakeholders proposed that since court brokers are officers of the court therefore PPRA should not be applied.

2.19.1.3 Qualification for Court BrokersStakeholders recommended that academic, financial and other qualifications of applicants for appointment as court brokers must be made clear in the Rules.

2.19.1.4 Fees, Charges and Allowance for Court Brokers. (Second schedule G.N No. 176 of 2008)

Stakeholders recommended that the fees, charges and allowance payable to court brokers must be proportional to the task assigned. Some stakeholders recommended that fee structures provided under the Court Brokers Rules of 1999 be maintained.

2.19.1.5 Court Brokers discharging the functions of Process Servers

Stakeholders recommended that the court brokers should be relieved from the duties of process servers. On the other hand, some stakeholders recommended that court brokers should be process servers. In addition, they also proposed that process servers should be conferred to all people who qualify to be called “officers of the court”.

2.19.1.6 Complaint and Disciplinary Proceedings. (Rule12)

Stakeholders recommended that procedure for lodging complaints should be clearly provided under the Rules.

2.19.1.7 Bank Account

Stakeholders recommended that the law must require court brokers to keep separate Bank Account for their clients. It is further recommended that court brokers’ accounts must be audited yearly.

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2.19.1.8 Code of Conduct for court brokers

Stakeholders recommended that there is a need of having a Code of Conduct for court brokers.

2.19.1.9 Commission Observations

From the inputs by stakeholders and sources from other Commonwealth jurisdictions, the Commission’s observations on court brokers and process servers are as follows:

(1) The Rules need extensive amendments in order to protect litigants’ interests and the reputation of courts.

(2) The provisions as to appointment and discipline of court brokers must be made clear and there is need to put in place a quasi-independent authority to deal with matters pertaining to court brokers.

(3) Academic, financial and other qualifications of applicants for appointment as court brokers must be made clear in the Rules.

(4) There is need for the creation of a quasi-independent body to deal with all affairs of Court Brokers which will be answerable to the Chief Registrar and not to the Chief Justice.

(5) The fees, charges and allowances payable to Court Brokers must have reasonable relationship with the task in question.

(6) Court Brokers should be relieved of the duties of Process Servers.

(7) The Tanzania Court Brokers Association should be represented in the body charged with the duty of appointment and discipline for Court Brokers.

(8) Procedure for lodging complaints and dealing with them ought to be clearly laid down.

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From the inputs by stakeholders and other sources the Commission’s recommendations on the findings are as follows:(i) that the Rules need extensive amendments in order to

protect litigants’ interests and the reputation of courts;(ii) that the provisions as to appointment and discipline of

court brokers must be made clear; (iii) that academic, financial and other qualifications of

applicants for appointment as court brokers must be made clear in the Rules;

(iv) that there is need for the creation of a quasi-independent body to deal with all affairs of Court Brokers which will be answerable to the Chief Registrar;

(v) that the fees, charges and allowances payable to Court Brokers must have reasonable relationship with the task in question;

(vi) that Court Brokers should be retained as Process Servers but the registrar should exercise more control over them;

(vii) that the Tanzania Court Brokers Association should be represented in the body charged with the duty of appointment and discipline for Court Brokers;

(viii) that a procedure for lodging complaints and dealing with court brokers should be clearly laid down in the rules. .

(ix) that the law should specifically require Court Brokers to take out insurance;

(x) that accounts of Court Brokers must audited yearly;(xi) that the law should require Court Brokers to keep separate

Bank Accounts for their clients, that is, different from their personal accounts ;

(xii) That there is a need to draw up a Code of Conduct for Court Brokers, as in other countries in the Commonwealth

(xiii) that Process Servers must be salaried employees of the Judiciary who may be paid allowances in deserving cases.

CHAPTER THREE

CONCLUSION AND RECOMMENDATIONS

3.1 CONCLUSION

The review of the Civil Justice System in Tanzania was done through consultative process in which various stakeholders were consulted. Consultation was done through solicitation of views from individual stakeholders and at times through organized workshops. This Report has discussed various shortcomings of the existing civil justice system in Tanzania with a view to making recommendations which are taken into account when drafting the proposed new or amended laws and rules. The Report gives account of the existing problems and how those problems may be addressed.

Some of the problems discussed is that the civil justice system is too expensive and thus a burden to many litigants. Other setbacks include delay in determination of civil cases, inequalities between powerful and wealthy litigants and under-resources litigants, uncertainties as to cost and timing of litigation, technical and incomprehensible civil justice procedures and the adherence to the rules guiding the adversarial system of justice dispensation. Also, the civil justice is enshrined by multi-legal regime, inadequate and uneven distribution of resources, laxity of Judges and Magistrates to enforce letter of the law, unfair management of court business, lack of awareness of legal rights, unethical and unprofessional conducts among lawyers and court brokers and lack of enthusiasm to resort to ADR.

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As such, all these problems, in a nutshell, show that the Tanzania Civil Justice system does not portray the system envisioned by Article 107A of the Constitution of the United Republic of Tanzania. The said Article guarantees delivery of justice without undue delay, provision of adequate compensation in case of injuries caused by another, facilitating and encouraging amicable settlement of disputes and delivery of justice without undue technicalities.

3.2 RECOMMENDATIONS

Taking into account the findings under this study, the Commission recommends as follows.

3.2.1 Civil Procedure Code, Cap. 33 [R.E. 2002]

(i) Judges and Magistrates should be sensitized on their duty to use the existing provisions of CPC to supervise and control proceedings.

(ii) Training budget should be allocated for Judges and Magistrates so that they can be trained among other things on various reforms.

(iii) Registrars should be trained in order for them to dispose preliminary issues of cases.

(iv) The number of Judges and Magistrates should be increased as well as infrastructure.

(v) Since there is no rule under the CPC which places a case for “Mention”, the courts should not allow parties to apply for substantive reliefs such as dismissal of a suit or default judgment on a mention date.

(vi) The CPC should be amended to prescribe specific stages through which civil proceeding shall pass through and should also fix time-limits for each stage of civil proceeding.

(vii) There should be a new section 4A in the CPC to be added immediately after section 4 that adopts in full the provisions of Article 107A of the Constitution of the United Republic of Tanzania. This will guide the courts and advocates on the need to be guided by the principles enshrined in the Constitution about substantive justice without undue regard to procedural technicalities.

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(viii) Technicalities should not be used to deny justice; merit of the case should prevail.

(ix) When the advocate is the source of the failure to observe technicalities required then he should be fined.

(x) Section 13 of the CPC and Section 40 of the Magistrates Courts Act should be amended to specifically provide that “for purposes of pecuniary jurisdiction the High Court shall not entertain a proceeding where the quantum claimed falls within jurisdiction of a subordinate court.”

(xi) Registrars should at stage of admission, scrutinize pleadings before these pleadings are taken before a trial judge for hearing. This early scrutiny will enable Registrars to identify any error and exercise the power to return the defective pleadings to the parties concerned for rectification.

(xii) The provisions of Order 1 Rule 8 and those of Order XVIII Rule 3 should be amended to provide that “where the Court grants permission to sue or defend in a representative capacity, the persons represented shall not be required to adduce oral testimony but shall be required to file sworn statements verifying their claims and may be cross examined on those statements.”

(xiii) Registrars in the High Court and other Registry Officers responsible for admitting claims, pleadings or other court documents lodged by a party should strictly scrutinize them to ensure the documents comply with the law before issuing summons to the opposite party to respond to the document.

(xiv) The Registrars in the High Court and other Registry Officers should effectively use their powers as admission officers by inspecting the pleadings and to order such pleading to be struck out, amended (Order VI Rule 16); or to order the return to a plaint that has been filed in the wrong court and order it be taken to the proper court (Order VII Rule 10) or reject it where it fails to disclose cause of action or relief claimed is undervalued or is barred by limitation (Order VII Rule II). This diligence in exercise of their judicial

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powers will cut down delays associated with objections.(xv) The Rules Committee of the Chief Justice should prepare for

approval by the Chief Justice, special Prescribed Forms in the Civil Procedure Code to be used in pleadings for simplicity and clarity purpose.

(xvi) Proper training should be given to Registrars so that they can discharge their duties efficiently.

(xvii) Where a pleading is drawn by an advocate and the advocate proceeds to act as counsel representing the party, then the pleading must be signed by both the advocate and the party thereof.

(xviii) Where a pleading is drawn by an advocate retained only to draw the pleading and not to represent the party any further, the pleading should be signed by the advocate and his party with a clear endorsement that the advocates’ mandate was to draw the pleading only.

(xix) Where the pleading is drawn by the party himself, it should be signed by such a party.

(xx) Where a party or his advocate omits to sign a pleading, the Court should permit such party and his advocate to sign before commencing the trial.

(xxi) Where a party instructs an advocate to appear represent him/her in any matter as recognized agent, the advocate must possess written instructions or a power of attorney. In such a case the advocate should not represent the party in his capacity as counsel anymore but only as an agent of the party.

(xxii) No pleading should be struck out or be rejected merely because it lacks signature of the party or his advocate. This is because the identity of the party to the pleading can be gathered from other parts of the pleading. The party or advocate whose signature is missing should be asked to sign and the proceedings be allowed to continue.

(xxiii) Order VI Rule 17 of the CPC should be amended to categorically provide that no one shall be allowed to amend pleading after the trial has commenced unless it can be proved that any subsequent

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event has occurred after the trial had commenced, and the court thinks that in spite of due diligence shown by the party the matter could not have been raised before the commencement of the trial.

(xxiv) We recommend that examination-in-chief of witnesses shall be on affidavit that is filed with the pleadings. We further recommend that the trial court shall only take evidence only in cross-examination or re-examination. Trial courts should appropriately allow the admissibility of documents filed along with affidavits.

(xxv) No ex parte interim injunctions should be granted unless the requirements in Rule 4 Order XXXVII are fully met.

(xxvi) Courts should adhere to the conditions that the duration of an injunction shall be for an initial period of 6 months only and may be renewed for another 6 months but on aggregate an injunction should not last more than 12 months. Provided the court determine cases within agreed speed track.

(xxvii) The modes of effecting service of summons should be expanded to include service through other evolving expedited means of communication such as courier services, by scanned email, fax and any other means.

(xxviii) The Chief Justice should continue with rule making powers under section 81 of the CPC. There should be established a Judicial Rules Committee to advise the Chief Justice.

(xxix) The Commission is of the view that Magistrates and Judges of the High Court should engage parties and participate fully in proceedings as the practice in the Court of Appeal.

(xxx) Rules on summary judgments should be retained and Judges and Magistrates should administer summary judgments more expeditiously.

(xxxi) We recommend the amendment of Rule 3, Order VIIIA to empower the Principal Judge, Judges/Magistrates-in-Charge in consultation with presiding judge or magistrate concerned, to prescribe a shorter speed track for any case or application they consider to have economic, social or political significance for purposes shorter speed track.

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(xxxii) Judiciary should have data base on cases as this will ensure efficiency in case management.

(xxxiii) The practice in other jurisdictions of disciplining judges and magistrates who fail to deliver judgment on time should be considered for adoption by the Judicial Service Commission.

(xxxiv) Statutory limit of delivering judgment should be deleted in the Act and be dealt by Chief Justice administratively take into account the nature of the case and various challenges which the Judiciary is facing.

(xxxv) Rules on appeal should provide that an appeal shall lie against the proceedings, judgment and decree without putting any restriction on the right to appeal.

(xxxvi) To avoid confusion to litigants and unnecessary preliminary objections, Chief Justice through Rules Committee should prescribe standard and uniform format which will be used throughout.

(xxxvii)Appeals, Revisions, Reviews and References should be classified into speed tracks or timeframe for purposes of determining their duration before conclusion.

(xxxviii)The period of limitation should be uniform. There should not be different time limits for appealing. Uniform or standard time line of appealing of 60 days in all cases would make it easy for an intending appellant to remember.

(xxxix) Amendment of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 (R.E. 2002) by repealing sections 17, 18 and 19 which had hitherto made provisions for judicial review.

(xl) A new ORDER XLIIA should be added to the Civil Procedure Code to specifically provide for the applications for judicial review in the form of Orders of order of mandamus, prohibition or certiorari.

(xli) High Court should automatically grant leave in any proceedings from whose pleadings prima facie disclose triable issues.

(xlii) High Court should automatically grant leave in any proceedings which prima facie shows involving the interpretation of the Constitution with regard to the basic freedoms, rights and duties

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specified in Part III of Chapter I of the Constitution, and in this case no application for judicial review shall be commenced or continued unless the Attorney-General or his representative designated by him for that purpose is summoned to appear as a party to those proceedings.

(xliii) Where there are numerous applicants applying for judicial review, they should first obtain a leave of the Court under Order 1 Rule 8 of the CPC.

(xliv) Where High Court grants leave to apply for judicial review, that order of the High Court should operating as stay of proceedings until the determination of the application or until the Court otherwise orders.

(xlv) Since an application for leave is made ex-parte, High Court should exercise its discretion within seven days of filing of the ex -parte application.

(xlvi) The Chief Justice should retain the power to make Rules of Court prescribing the procedure and the fees payable or documents to be filed or issued in proceedings falling under this Order.

(xlvii) There should be established a Judicial Rules Committee to advice the Chief Justice.

(xlviii) The Judicial Rules Committee should prepare Special Forms to be approved by the Chief Justice for purposes of prescribing for applications, proceedings, processes, notices, orders, decrees, precepts, memoranda, bonds, commissions, letters of request or other documents required to be prepared, executed, filed, issued or otherwise used in connection with proceedings under the Civil Procedure Code.

(xlix) At the stage of leave, High Court should reject an ex- parte application where there are reasons to believe that the application for leave was not made with utmost good faith and has omitted to make full and frank disclosure of all material facts or was made after expiry of six months prescribed by the applicable law of limitation.

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(l) The amendment of Order XVII of CPC to limit the number of adjournments in a civil case to three. Where in exceptional circumstances a party is allowed an adjournment, the court shall direct the party concerned to pay costs to the other party occasioned by the adjournment.

(li) Where any case is adjourned, the presiding Judge or Magistrate should ensure that the reason occasioning adjournment is recorded in the case file.

(lii) Where the plaintiff, applicant or their advocates fail to appear before the court for two consecutive times, the court should dismiss the suit or application.

(liii) Cases that have been partly heard but dates for continuation of hearing has not been set, all such cases should be brought before the trial judge or magistrate with a view to fixing a specific date for continuation or conclusion of the trial.

(liv) No Judgments, rulings or orders should be reserved by the court without assigning a specific date when the court shall deliver its judgment or ruling.

(lv) Recommends the amendment of section 22 of CPC to allow every plaint that is filed shall be accompanied with affidavit.

(lvi) We further recommend the amendment of Order VIII to require that in every written statement of defence, counter claim and set-off, facts shall be proved by affidavit.

(lvii) Recommends the amendment of section 23 of the CPC to prescribe that the Plaintiff shall collect the summons and serve it on the defendants within 7 days of institution of the suit.

(lviii) Recommends the enactment of provisions of the Circular Number 2 of the Principal Judge:

(i) Plaintiff or an applicant filing a suit or an application shall pay only the filing fee and shall receive the appropriate receipt.

(ii) Plaintiff or an applicant shall be notified that the responsibility to serve the plaint or an application on

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defendants or respondents shall be upon the plaintiff or the applicant concerned.

(iii) Plaintiff or an applicant as the case may be, shall further be notified that he can carry out service of court processes and pleadings either by himself or by his agent in accordance with Order V Rule 31.

(iv) In case the Plaintiff or an applicant cannot carry out the service of process by himself, he should be notified that Court Brokers can carry out the task, and he shall be obliged to pay appropriate fee disclosed under the Court Fees Rules.

(v) Within four days after the filing, the Plaintiff or an applicant shall return to be informed which presiding Judge or Magistrate has been assigned the matter and to receive court summons to issue to the defendants or respondents.

(lix) Recommends for the amendment of sections 79 of CPC and 44 of the Magistrates Courts Act, 1984:

(i) Registrars and Magistrates-in-charge shall keep and maintain monthly records of all cases whose files are called by the High Court.

(ii) Registrars and Magistrates-in-charge shall ensure that the files that were called by the High Court for any Order are returned back to the subordinate within 21 days of any Order of the Judge.

(lx) All judicial officers should be afforded more training on ADR in order to bolster their re-commitment to Alternative Dispute Resolutions to ease backlog of cases.

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3.2.2 Evidence Act, Cap. 6 [R.E. 2002]

(i) The definition of a document under Section 3 of the Evidence Act 1967 should be extended to cover modern forms of communication. The admissibility of electronically generated documents such as e-mails or sim messages also needs to be incorporated in the Evidence Act.

(ii) The decisions of the Commercial Division, High Court of allowing electronically generated documents to be admitted subject to compliance with the evidential procedures though still untested in the Court of Appeal, should be adopted. These decisions which should be adopted appear in the cases of (i) Lazarus Mrisho Mafie & Another v. Odilo Gasper Kilenga (by Makaramba, J.) and (ii) Federicco Gellini v. Jacco Du Plessis Safaris of South Africa & 6 Others, Commercial Case No. 67 of 2004, High Court of Tanzania, Commercial Division ( Massati, J.(as he then was).

(iii) Law of Evidence Act of Tanzania should learn best practices from other Common law countries such as U.K, Canada and India. The Commission further recommends enactment of Data Protection Act.

(iv) The Commission therefore recommends that witnesses testifying in courts should have the option of testifying while in a sitting position on a chair, or bench or similar available facility, provided that witnesses who wish to testify while standing should be allowed to do so.

3.2.3 The Arbitration Act, Cap 15 [R.E. 2002]

(i) Statutory prohibition of any arbitral agreement (arbitral clause) that waives the right of a party to challenge the award or contest the validity or enforceability of the arbitration agreement or arbitration proceedings or award.

(ii) A clause that enforcement will be according to Tanzanian law in Tanzanian courts if enforcement relates to assets of the other party or to a party situated in Tanzania (prohibit international enforcement forum shopping, such as the case where Dowans) should be restricted.

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(iii) A provision to the effect that if there are proceedings pending in the court for the purposes of contesting the award, then the award shall be deemed not final and binding

(iii) following should be grounds for setting aside an arbitration award:

• Irregularity • Contract against public policy• Enforcement against public policy• Challenge on substantive jurisdiction• Challenge on substantive justice and when it

should be raised• Arbitrators ignored evidence before them• Arbitrators contradicted their own findings• Arbitrators not applying applicable law• Contract against the law of Tanzania• Enforcement against a law of Tanzania( for

instance against the Anti- Corruption law)• Right to appeal on a point of law arising out

of an award if the point was raised in the arbitration proceedings

• Error on the face of the Award irrespective of whether or not the matter was specifically referred to the tribunal

• Refusal to grant application of a party for interest without giving reasons or awarding one party interest and denying another interest without giving reasons

• Impartiality (during the proceedings and including impartiality by arbitrators in the consideration of the evidence and facts before the tribunal)

• Misconduct(to be clarified in its widest sense using case law on the subject which has clarified what constitutes misconduct)

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• Impropriety• If arbitrators considered issues beyond their

mandate• If they did not consider and issue at all or

not fully• Decision made on a document not before the

arbitrator or opinion of arbitrator• Arbitrator’s decision based on his own

opinion• If arbitrator introduces new issue post the

hearing and closing of the proceedings which was not argued by the parties

• Arbitrator is biased in the consideration of the evidence and facts before him

• Lack of capacity of parties to contract or Lack of valid agreement;

• Lack of notice of appointment of an arbitrator, or of the arbitral proceedings or inability of a party to present his case;

• Award deals with matters not covered by submission to arbitration;

• Composition of the tribunal or conduct of the of arbitral proceedings contrary to effective agreement of the parties;

• A party has concealed any matter which he ought to have disclosed, or has wilfully misled or deceived the arbitrator or umpire.

• An application to set aside the award must be made within 90days from the date of the receipt of the award. This might require an amendment of the Law of Limitation Act

• Where a party did not receive a fair hearing • Where a party was improperly represented

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v. The Commission recommends that an award is remittable if:• There are clerical errors whether on the face of the award or

the documents supporting the award• If arbitrators considered issues beyond their mandate (this

ground may also be ground for setting aside an award, but the court may remit an award for reconsideration of the arbitrators if it deems it appropriate to do so)

• Where the court decides it is just that the award is remitted for the reconsideration of the arbitrator

vi. The Arbitration Act should also provide a more elaborate arbitral process such as:

Request for arbitration.

Answer.

Statement of case.

Reply.

Rejoinder.

Document exchange.

Discovery process.

Confidentiality and when party may disclose.

Witness statements.

Reply witness statements.

Expert evidence.

Expert witness.

Compelling a witness to appear before the tribunal and who pays for the costs initially.

Opening submissions.

Authorities and the duty to provide copies of

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authorities relied upon to the other party and to arbitrators.

Hearing and daily recording and daily availability of transcripts to parties at the end of each day of the hearing.

Closing submissions.

3.2.4 Judiciary Administration Act, No. 4 of 2011

(i) Following the taking of the administrative responsibilities away from Registrars, these judicial officers should be redeployed to expedite the disposal of cases.

(ii) Judicial powers of the Registrars which are provided for under Civil Procedure Code, appellate Jurisdiction Act and other statutes should now be used efficiently.

(iii) Chief Justice should be requested to issue Circular to identify functions which Registrars should perform.

(iv) Registrars, in High Court and Magistrates in Charge in the magistrates’ courts, should ensure that Cause Lists are prepared and displayed to the court notice boards and in the website of the Judiciary where available.

(v) The Cause Lists shall indicate the name of presiding judge or magistrate as the case may be.

(vi) The Cause lists of the High Court Main Registry, High Court Zonal and Divisional Registries and all magistrates’ courts should be made available on the website of the Judiciary.

(vii) Registrars, in High Court and Magistrates in Charge in the magistrates’ courts, should carry out stock taking and within 24 hours the forward the results to the Chief Registrar and Judiciary Computer System.

(viii) Stock-taking should be conducted at the following dates:(a) Last day of March of every year;

(b) Last day of June of every year;

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(c) Last day of September of every year; and

(d) Last day of December of every year.

(ix) In case the last days mentioned above fall on a public holiday or a weekend, then stock-taking should be conducted on first working day.

(x) The stock-taking should be so conducted as to determine the actual number of cases or applications that are pending and the number of cases or applications that have been finalized and await judgments or rulings, as the case may be.

(xi) Every working Friday, or Thursday, when the working Friday is a public holiday, Registrar and Magistrates in charge should cause to be prepared a Disposition List of fresh cases and applications filed during the week and the presiding Judges or Magistrates to whom such cases are specifically assigned.

(xii) Disposition List should be sent to a specific judicial or non-judicial officer appointed by the Chief Registrar for purposes of records and statistics of the Judiciary.

(xiii) After receiving the results from stock-taking exercise of pending cases, Principal Judge, Judges and Magistrates in Charge should draw to the attention of Judges and Magistrates concerned to their reserved judgments and rulings and should also indicate the time within which those reserved judgments and rulings should be delivered.

3.2.5 The Government Proceedings Act, Cap. 17 [R.E. 2002]

(i) The exclusive Jurisdiction of the High Court to entertain suits against the Government should be maintained.

(ii) Suits against the Government should continue to be filed against the Attorney General.

(iii) The requirement of 90 days prior notice be maintained; but the courts

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be empowered to dispense with the requirement of notice where circumstances demand so

(iv) There should be time limit within which the Government will be required to satisfy the decree or order granted against it, preferably, 120 days.

3.2.6 The Magistrates’ Courts Act, Cap 11[R.E. 2002]

(i) The presence of assessors in Primary Courts should be limited to disputes involving customary and Islamic Law and the assessors should not have any power in decision making.

(ii) The Magistrates Courts Act 1984 should be amended to ensure that in the interim lay primary court magistrates continue to determine civil cases under their current jurisdictions until their cadre is completely phased out.

(iii) Primary Court Magistrates who are law graduates should be conferred enhanced jurisdiction over and above the jurisdiction enjoyed by Lay Magistrates.

(iv) Advocates and State Attorneys should be allowed to appear in Primary Courts as soon as qualified law graduates are employed in those courts.

(v) The present set up of the District Court should be maintained; however the move by the judiciary to phase out the old cadre of the District Magistrate and replacing them with professionally qualified magistrates is commendable.

(vi) The present setup of the Resident magistrates Court needs to be reviewed. There is a clash of jurisdiction between this court and the District Court. Except in so far as extended jurisdiction is concerned, the jurisdiction of these courts is nearly similar. The only difference is that the territorial jurisdiction of the Resident magistrates Court is wider than that of the District Court. Two possible approaches towards rationalization of this system are recommended:

(a) Either by a complete removal of the Resident Magistrates Court and instead having District Magistrates of different grades according to their seniority. This will entail in

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substance the repeal of section 5 of the MCA, a move will not cause a significant change in the judicial system and practice as it is now. It will eliminate even the confusion that exist where the two courts use the same registry and are manned by professionally qualified magistrates; OR

(b) The Resident Magistrates’ Court should be renamed as the Regional Magistrates’ Court with jurisdiction over the whole Region within which it is established. This should have exclusive original jurisdiction over landlord and tenant matters, appellate and revisional jurisdiction over the District Court enhanced original pecuniary jurisdiction over all civil matters and may be granted extended civil jurisdiction. This will be the major source of new appointment for Judges of the High Court. The advantage of this setup will be to reduce the number of cases filed in the High Court, to bring higher courts nearer to litigants and to have a good training ground for future Judges.

(c) It is proposed that the Primary Court magistrate should hear matters where the amount does not exceed Tsh. 50,000,000/=; District Court up to Tsh. 500,000,000/= and Regional Magistrate Tsh. 1 Billion.

3.2.7 The Ward Tribunals Act, Cap. 206 [R.E. 2002]

(i) The Ward Tribunals should be retained; however major reforms should take place so as to achieve the purpose of their establishment. The reforms should be on qualifications of members who sit in the tribunals, jurisdiction and powers.

(ii) The Ministry responsible for Ward Tribunals should allocate enough funds to facilitate smooth operation of the tribunals.

(iii) The Members should be well remunerated so as to minimize corrupt practices in the Ward Tribunals.

(iv) The Primary Court Magistrates should be reminded to exercise their supervisory role over Ward Tribunals.

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(v) Members of the Tribunals should be trained so they can discharge their duties efficiently

3.2.8 The Law of Limitation Act, Cap 89[R.E. 2002]

(i) The power of the Minister responsible for Legal Affairs to extend period of limitation in suits should be retained.

(ii) The periods of limitation prescribed in the Law of Limitation Act should remain.

3.2.9 The Appellate Jurisdiction Act, Cap 141 [R.E. 2002]

(i) The powers of review and Revision for the Court of Appeal should be expressly provided for in the Constitution

(ii) The provisions requiring a party to obtain leave to appeal to the Court of Appeal, or obtain a certificate that point of law is involved should be repealed in every statute. There should be a provision in the Appellate Jurisdiction Act which allows full access to the Court of Appeal providing that “in civil proceedings, an appeal shall lie as of right to the Court of Appeal against every decree, order, judgment, decision or finding of the High Court; subordinate court with extended jurisdiction or tribunal” ; and (b) No appeal shall lie against any preliminary or interlocutory decision or order of the High Court unless such decision or order has the effect of finally determining the matter.”.

(iii) The Constitution should have an express provision which empower the Court of Appeal to hear appeals from tribunals which their establishing laws require appeals to be channelled to the Court of Appeal.

3.2.10 Courts Vacation Rules, G.N. No. 307 of 1964

(i) That the Court Vacations should be retained for Justices of Appeal and Judges of the High Court, but they should not be extended to Subordinate Courts.

(ii) That Court Vacations should in no way interfere with individual Judges’ annual leave, which is part and parcel of the conditions of their appointments;

(iii) That the duration of those Vacations be reduced;

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(iv) That during the Court Vacations, Justices of Appeal and the Judges of the High Court shall attend to very urgent business as determined by each Judge during morning hours on working days on rotation basis, if necessary.

3.2.11 Language of the Courts Rules, G.N. No. 307 of 1964

(i) That the Language of the Court in the Court of Appeal must be English;(ii) That the Languages of the Courts in the High Court, Court of Resident

Magistrate and District Court must be English or Kiswahili as the Judge or Magistrate holding such court shall direct, but the records of proceedings, orders, rulings or judgment must be in English; provided that when hearing appeals from primary courts, the Language of the Court must be Kiswahili but the record of proceedings, orders, rulings or judgments must be in English.

3.2.12 Appearance by Officers of the Government Rules, G.N. No. 306 of 1964

Rules have now become obsolete with no useful purpose and many people are not aware of the existence of these Rules and therefore should be repealed.

3.2.13 Court Fees Rules, G.N. No. 308 of 1964.

The Commission, while aware of the need to make justice accessible to people with limited financial resources, feels that all the same justice cannot be free for everybody. It is accordingly recommended that these fees remain the same for the time being, and that they be reviewed regularly

3.2.14 The High Court of Tanzania (Commercial Division Fees) Rules, 2011

That the current fees in the High Court (Commercial Court Fees) Rules, 2012 should be lowered to enhance access to court for poor litigants.

3.2.15 Court Brokers and Process Servers (Appointment, Remuneration and Discipline) Rules, G.N .No. 315 of 1997 as amended by G.N. No. 176 of 2008

(i) that the Rules need extensive amendments in order to protect litigants’ interests and the reputation of courts;

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(ii) that the provisions as to appointment and discipline of court brokers must be made clear;

(iii) that academic, financial and other qualifications of applicants for appointment as court brokers must be made clear in the Rules;

(iv) that there is need for the creation of a quasi-independent body to deal with all affairs of Court Brokers which will be answerable to the Chief Registrar;

(v) that the fees, charges and allowances payable to Court Brokers must have reasonable relationship with the task in question;

(vi) that Court Brokers should be retained as Process Servers but the registrar should exercise more control over them;

(vii) that the Tanzania Court Brokers Association should be represented in the body charged with the duty of appointment and discipline for Court Brokers;

(viii) that a procedure for lodging complaints and dealing with court brokers should be clearly laid down in the rules. .

(ix) that the law should specifically require Court Brokers to take out insurance;

(x) that accounts of Court Brokers must audited yearly;(xi) that the law should require Court Brokers to keep separate Bank

Accounts for their clients, that is, different from their personal accounts ;

(xii) that there is a need to draw up a Code of Conduct for Court Brokers, as in other countries in the Commonwealth

(xiii) that Process Servers must be salaried employees of the Judiciary who may be paid allowances in deserving cases.

3.2.16 Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. No. 312 of 1964)

(i) That the Rules should give freedom to the parties to file their petitions of appeal either in the district court whose appeal is sought to be challenged, or directly in the High Court which can then simply call for records from the district court;

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(ii) That Rule 11(2) be amended so as to provide that the respondent shall be entitled to a copy of the petition without the need to apply for it;

(iii) that Rule 12 (1) be amended to provide that the court shall not grant an application for adjournment unless such court is satisfied that the reasons for applying for an adjournment are sound and, that in the event the court is inclined to adjourn a matter on its own motion, it shall be obliged to give reason for the same: this would discourage unnecessary adjournments; and that in any case such adjournment shall not exceed thirty working days.

(iv) That for purposes of elegance and logic, Rule 16 should come after Rule 18. and

(v) That the life span of an appeal in district courts should be six months with a possible extension for three months; and an appeal in the High Court in such cases should have a life span of one year from the date of filing but that the period may be extended by the High Court for good cause.

3.2.17 High Court Registries Rules, G.N. No. 164 of 1971

(i) There should established a High Court Centre in every Region with adequate number of judges in each region to hear and determine even cases requiring a panel of Judges;

(ii) that Rule 3 be amended in order to provide that there shall be maintained three Registries of the High Court, one for criminal matters, a second for civil matters and a third for economic crimes;

(iii) That Rule 10 of the Rules be amended so as to provide that all formal and preliminary steps and all interlocutory applications in proceedings filed in a High Court Registry shall be taken or made by the Registrar, Deputy Registrar or District Registrar, as the case may be so as to remove possible confusion and so as to relieve Judges of the extra burden such applications are on Judges. Only when the Registrar feels that the matter needs the attention of a Judge should such a matter be referred to a Judge.

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Documents

THE UNITED REPUBLIC OF TANZANIA THE LAW REFORM COMMISSION OF TANZANIAlrct.go.tz/wp-content/uploads/2013/05/FINAL REPORT.pdf · · 2013-05-13THE UNITED REPUBLIC OF TANZANIA THE LAW