CAPITULO 2: CARACTERÍSTICAS DEL SISTEMA
2.3 Modelado del Sistema
2.3.6 Descripciones de los Casos de Uso del Sistema
CHAPTER THREE
RESEACH FINDINGS
DISMISSAL OF CASES ON LEGAL TECHNICALITIES BY THE COURT OF APPEAL OF TANZANIA
3.0 Introduction
This chapter covers presentation of findings and data collected by the researcher from both field study through interviews and questionnaires as well as from library study. It intends to explore and discuss findings from various respondents and test the hypothesis presented for in previous chapter in order to verify them. Also this chapter centers itself to see whether The Court of Appeal of Tanzania dismisses appeals on legal technicalities, the causes of legal technicalities and effects of legal technicalities on substantive justice.
3.1 Findings
The Court of Appeal of Tanzania is the highest court in hierarchy of courts in Tanzania. It has Jurisdiction over appeals from the High Court of Tanzania and from the High Court of Zanzibar47. It is established by Article 117 of the Constitution of The United Republic of Tanzania 1977 as the final and the appellate court in Tanzania and its decisions are final and conclusive48.
47 Mashimbi Bonaventure, LLB IV student at SAUT in his response to a Questionnaire.
48 George E. Waryoba, Judicial officer (Statistics) at the Resident Magistrate Court of Mwanza at Mwanza in his response to a questionnaire on 7th February 2014.
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The main functions of The Court of Appeal of Tanzania are to determine appeals from the High Court of Tanzania and the High Court of Zanzibar. All appeals in the Court of Appeal of Tanzania lie on point of Law, to make binding decisions (precedents) which binds inferior courts, to make orders and rulings on certain legal issues49. It also Interpreting diverse Laws and execution administrative decisions, Hearing and deciding cases filed before the courts of law, Educating members of the public of their rights obligations under the laws of the Tanzania and Facilitating maintenances of peace and order through good governance and the rule of law50.
Legal technicalities refer to the technical aspect of law which does not go to the merits of the case. They involve procedural aspect of law as opposed to substantive aspect of law which require legal expert to determine them51. These are all means that the law experts use either to create loop halls or evade certain interpretations of statutes or evade certain legal procedures of which the law accommodates52.
Most of the respondents interviewed by the researcher or who responded to questionnaires fail to provide a clear definition of the term legal technicalities. There is no single and conclusive definition of the term .It is a casual or colloquial phrase referring to a technical aspect of law.
The phrase is not a term of art in law, it has no exact meaning nor does it have a legal definition.
It implies that the strict adherence to the letters of the law have prevented the spirit of law from being enforced53. Legal technicalities are strict rules of procedure, points of law or small set of rules as contrasted with intent or purpose of the substantive law. The technicalities ensure strict
49 Hanafi Ramadhani, an ordinary citizen in his response to a questionnaire on 7th March 2014.
50 http://www.judiciary.go.tz/ accessed on 11th March 11, 2014 at 00:40 am.
51 Kamulu Raphael, An Advocate of The High Court of Tanzania and Subordinate courts thereto and an assistant lecturer at St.Augustine University of Tanzania in his response to an interview with the researcher on 8th March 2014 started at 11:43 am.
52 Op cit n.61
53 See US v Shipp 214 US 386 1909.
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adherence to the letter of the law and may prevent the spirit, intent or purpose of substantive law from being enforced.
3.1.1 Causes of legal technicalities in Court of Appeal of Tanzania.
In their response on the causes of legal technicalities in courts of law respondents mentioned various things to be the causes to the problem. The first respondent responded that legal technicalities are the results of interpretation of statutes and legal procedures. He continue saying that legal profession involves interpretation of statutes and in interpretation of statutes people may come out with conflicting views. To him every word in a statute should be clearly defined to avoid these conflicting views56.
Another respondent responded that legal technicalities are a result of the way laws are drafted.
To him the way the laws are drafted allows technicalities and technicalities depend on the perspective of a judge, a thing can be technical to one judge but not the other57. Other respondents responded that technicalities are caused by errors in procedures, uncertainty or absurdity in law, loopholes in laws and failure of the court to comply with Article 107A of the
54 [2012] KLR
55 http://www.ockadvocates.com/2013/04/prosedural-technicalities-versus-substantive-justice/#_ftn7 accessed on 3rd March 2014 at 13:15 pm
56 Op cit. n 62.
57 Mwinuka Ignas, Learned State Attorney Based in Kilimanjaro during an interview with the researcher conducted through phone on 8th march 2014 started at 12:39 pm.
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Constitution58. They are also a result of complex procedures on extension of time, statutes of limitations, rules of appellate procedures, stay of proceedings, conflicts of rules of procedures as well as professional misconduct59.
Another respondent in his response to a questionnaire responded that legal technicalities are caused by ambiguity in facts of the case and interpretation of laws60. They are the results of lack of awareness of legal techniques and procedures to laymen61. Few justices of appeal compared to appeals lodged to the court also is among the complained factors. For example one of the respondents responded that:
“It is true that there are few Justices of Appeal not only in The Court of Appeal of Tanzania but even in lower courts. This is due to insufficiency budget of the government as there are many experts who can do the work but are unemployed. It is a normal psychology when judges are overloaded may embark on technicalities rather than going to the merit of the case62”.
3.1.2 Dismissal of cases on legal technicalities by The Court of Appeal of Tanzania.
Responding to the question as to whether the Court of Appeal of Tanzania dismiss appeals on legal technicalities these are the findings. The first respondent responded that it’s true to a great extent that Court of Appeal of Tanzania dismisses appeals on legal technicalities. He pointed out election petitions of Dr. Dalali Peter Kafumu and Joseph Kashindye and that of Godbless Lema dismissed by the Court of Appeal of Tanzania on technical grounds63.
58 An interview conducted by the researcher with students from various Universities, 2 students from Mzumbe University, 1 from Tumaini (Makumira) University and 3 from St.Augustine University of Tanzania held on 11th September 2013 at the premises of The Resident Magistrate Court of Kilimanjaro at Moshi.
59 Kisusi Joseph and Almachius Apolinary, LLB IV Students at SAUT in their response to questionnaires.
60 Op cit n. 60.
61 Op cit n.59.
62 Refer an inter view with Advocate Raphael Kamuli op cit n. 62.
63 Op cit n. 62.
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Also another respondent responded that the Court of Appeal of Tanzania is not consistent in its decisions. It is the highest court in hierarchy responsible for making decisions which binds all lower courts. In this regard when an appeal is disposed off technically it affects lower courts as they are directly bound by it. To support his argument the respondent cited the case of Francis Felix Mkosamali which before it was over ruled it affects most of decisions of lower courts.
3.1.3 Solution to the problem.
Responding to the question as to what are the possible solutions to the above problem respondents responded as follows. The first respondent responded that justice should prevail over procedures. Minor errors which do not go to the very roots of the case should be ignored. He proposes that advocates should be more careful in complying with procedures and they should agree not to raise irrelevant Preliminary objections which do not go to the roots of cases. He concludes by saying that Article 107A should be strictly adhered in the system of administration of justice in Tanzania by CAT64.
Another respondent proposed that Alternative Dispute resolution Mechanisms should be encouraged, laws should be interpreted properly and procedures should be observed by parties in order to solve the problem of dismissal of cases on legal technicalities by the Court of Appeal of Tanzania65.
Another respondent responded that Magistrates and Judges of the High Court should interpret the laws clearly and they should connect them properly to the facts I order to avoid the problem of
64 Op cti n. 62.
65 A response to an interview by the researcher with Mr. Innocent Ndanga, An assistant lecturer at St.Augustine University of Tanzania on 8th March 2014 started at 12:49 pm.
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dismissal of appeals by the CAT on legal technicalities66. Increasing number of justices of Appeal to accommodate registry judges is among the durable solutions suggested by respondents to this study.