INTODUCTION
For civil litigation practitioners in Tanzania, the
Civil Procedure Code[1],
(hereinafter “The CPC”) is equal to a Bible to a faithful Christian. It is
the code that all court proceedings in the High Court and Subordinate Courts
must follow. This is in addition to the Magistrates Courts Act[2],
in case of the latter, Subordinate Courts in the styles of District Courts and
Resident Magistrate Courts. For clarity of application ofthe CPC, the
definition section thereto, Section 3 defines “Court” as follows:
“…’court’, except in the expression ‘foreign court’,
means the High Court of the United Republic, a court of resident magistrate or
a district court presided over by a civil magistrate and references to a
district court presided over by a civil magistrate”
The CPC provides mandatory and minimum procedural
conditions that suits and all proceedings must follow and abide to. In addition
to it being “the code” CPC is the go-to-procedural law, where other procedural
laws are lacking. For example, despite land disputes being mainly guided by
Land Disputes Courts Act[3]
and labour disputes in the High Court Labor Divisions are guided by Labour
Institutions Act[4],
read together with the Labour Court Rules[5],
they both rely on the applicability of the CPC whenever they fall short.
All in all, given the nature of practice in
Tanzania, marred by lengthy procedural delays, mix-ups and including preliminary
objections based on technical issues (points of law),The amendment has come to
cure it all.
The Civil Procedure Code (Amendments of first
schedule) Rules[6],
has amended a lot of provisions concerning the modes of filing cases or
pleadings, import of new rules regarding functionality of Alternative Disputes Resolution
in trying matters before being subjected to actual court trial and so much
more. The above amendment has imported a lot of provisions which help in
speeding cases to the end by providing specific time frame on conducting a
particular court activity.
IMPORTS
OF GN 381 ON SPEED TRACK OF CASES
Rule 22 (1) of amendment[7]introduces
the time frame within which the Court is to hold the first pre- trial
conference. Before the coming of this amendment, first pre-trial conference was provided
under order VIIIA Rule 3[8].This
new rule require to be held pre-trial conference 21 days after completion of pleadings,
before amendment, there was no specific time for first pre-trial conference
thus led to loop hole in management of time, it was within the discretion of the
Court to decide when to hold first pre-trial conference which resulted to delay
of cases. The amendment put it mandatory requirement to abide to Rule 22(1) of
amendment[9].
Sub Rule 2 of Rule 22 provides for ascertaining of
the speed track of cases after consultation with parties. Sub-rule three provides
for the time frame for each speed track of cases. With 10, 12, 14 and 24 months
for Speed tracks1,2,3, and 4 respectively.
Sub Rule 3 of Rule 22 provides on time frame for
each speed track, the same as it was before amendment, but a new thing to know
here is the confusion existed as to when the time for speed track start to run.
The amendment is now clear that, the time shall start running from the date
Mediation or Reconciliation was marked as failed. Before amendment there
was confusion on when time for speed track start to run, some thought that, it
was after institution of a case and others thought that, it was from the date
when case was scheduled. Due to Amendment, there is no more confusion, it has
simplified completion of cases.
Rule 17 (1)[10]directs
court, within fourteen days from the date of completion of the pleadings,
on its own motion direct any party or parties to the proceedings to appear
before it, for orders or directions in relation to any interim applications or
other preliminary matters which the parties have raised or intend to raise as
it deems fit, for the just, expeditious and economical disposal of the suit. Sub
rule 2 of the same rule direct court to give orders within fourteen days after
hearing, sub Rule 1 and 2 of Rule 22 both provides time limit or frame In hearing
and determining applications. These provisions speedy the cases because there
will be no chance to escape the requirements of laws provided in above
provisions concerning time of hearing and determining a matter before court.
Rule 18 provides for powers of the Court to direct
parties to attend a pre-trial conference relating to matters arising in the
suit. Of importance to note here is Rule 18 (3) which gives the Court mandate
to enter judgment or enter any other Order that may give effect to
settlement provided parties have agreed to such settlement. In my opinion this
is commendable as it enhances and facilitates speedy disposal of cases which do
not need to go to trial. Before amendment, the court had a little power to enter
order in pre-trial conference, court was centered to direct parties to reach
dual satisfaction, now court is empowered to give orders as in full trial.
Amendment introduces part “c” which contains mediation,
conciliation, negotiation and arbitration. Furthermore, amendment provides
specific rules which govern ADR, a dispute referred to any of the alternative
dispute resolution procedures was to be dealt with in accordance with directions
issued by the Chief Justice. This amendment however introduces negotiation
conciliation and arbitration, and goes a step further to provide for rules
governing the same. Before coming into force of these Rules, Arbitration was
provided for under part II of the Act only. Order VIII C merely mentioned the
processes without any specific rules. The coming of this amendment will speed
the cases to its end because a matter now can be referred to any ADR for being
tried, before amendment only mediation was recognized clearly while arbitration
was provided but was applying not to every dispute.
Introduction of Electronic Fillings, Signatures and
Services, amendment of Order IV Rule 1 and 3 introduces
electronic case filing and electronic assignment of cases to magistrates. Rule
1 of order IV imports that,
“(1) Every suit shall be instituted by presenting
a plaint electronically or manually to the court or such officer appointed in
that behalf.”
And Rule 2 of above order provides that, “Where a
suit has been duly instituted it shall be assigned to a specific Judge or
Magistrate electronically or manually by the Judge or Magistrate in Charge of
the court.”
Electronic case filing and assignment to magistrates
or judges help to reduce time consumption and speedy the case, judiciary lately
adopted online court services system where everything was manually conducted in
courts which lengthened time of trial. Now there is e-filing which enable
people or advocates to file court documents wherever they are.
Timeline for Service of Summons.
Before the amendments, the plaintiff had twenty one days to effect service of
the summons ( Seethe old Rule 10 of Order V). After the amendments, the days
have been reduced to fourteen (14). Furthermore, the previous position was
silent as regards failure of the Plaintiff to service summons within the time
period (21 days then). G.N. No. 381[11]
has also addressed this issue firmly and strictly.
Rule 1 Sub-rule 2 of Order V, as amended, provides
that the plaint/suit may be stricken out if service of the summons has not been
effected within the 14 days timeframe. The new additions are commendable in
terms of saving of time and ensuring timely disposal of cases. Nonetheless,
their applicability needs to be in check, to ensure that justice is not forsaken
at the expense of technical hitches.
Extension of time to file a written statement of
defence is now provided under the new Rule 3. The difference
is that now the defendant can apply for such extension before expiration of the
original 21 days or within7 days of expiration thereof. The extension to be
given may only be for another 10 days from the ruling granting extension (see
the new Rule 4), of which the Court is also limited to make a ruling
thereof within 21 days of the application.
Extension of time by granting 10 days only to
defendant to file written statement of defence intends to reduce time which may
be wasted intentional by parties by applying extension of time. This Rule do
not remove a right to extension of time, but it restrict days to such extension
to shorten time of finalizing case. This speedy the case.
CONCLUSION
It is within the interest of public that there
should be an end to litigation and that can be achieved by reducing time of
cases from its commencement to the end. Speed track of cases is a legal
procedure which intends to speedy cases to its end by procedural laws or
practices.
Based on these new amendments, i believes that there
will be added efficiency and therefore, productivity on the side of the Court as
well as other players in legal cadre, It is my view that the amendments have
left little if not no room for parties to employ delaying tactics, especially in
the preliminary suit stages.
All in all, legal practitioners now need to conduct their activities in reasonable time because there is no loop hole for time mis-management.
REFERENCE
STATUTES
Law of Limitation Act Cap 89 R.E 2002
The Civil Procedure Code CAP 33 R.E 2002
The Civil Procedure Code
(Amendment of first schedule) Rules, 2019
CASES
George Shambwe v
Tanzania Italian Petroleum Co. Ltd. 1995 TLR 20
PanielLotta v
Gabriel Tanaki and Others TLR [2003]31
Sango Bay Estates Ltd And 7 Others v. Dresdner Bank
Aktiengesellschaft And Another, C.A.E.A Civil Appeal No; 50 Of 1970
BOOKS
Bakshi, P. M.
(1996) Mulla on the Code of Civil Procedure, Tripathi Private Limited, Bombay.
Chipeta, B. D.
(1989) A Magistrate Manual, T. M. P. Book Department, Tabora.
MANUAL
Chipeta B. D, Civil procedure in Tanzania; A student manual, Dar es Salaam, Dar es salaam University Press Ltd, 2002
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