LITIGATION: THE COURT OF APPEAL RULES, 2009 AND THE ADMINISTRATION OF JUSTICE IN TANZANIA Paper to be presented at Dodoma Hotel

on the 3rd day of April 2012 for CLE Series under the Tanganyika Law Society Author: BEATUS MALIMA The entire legal profession lawyers, judges, law teachers has become so mesmerized with the simulation of the court room contest that we tend to forget that we ought to be healers of conflicts. For many claims trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. 1984 State of the Judiciary Address by US Chief Justice Warren Burger 1. Introduction; It is my considered opinion that the Court of Appeal of Tanzania Rules, G.N. No. 368/2009 being the means designed to facilitate justice and further its ends needs to be interpreted to meet that end. The end is a determination of appeals both fairly and efficiently. At the end of this conversation we will have seen that with the exception of Rule 2, and 106 the rules have not changed. The same old rules are in place save for their renumbering, and amendments here and there of those same old rules. The question is whether the introduction of Rules 2, and 106 will lead to a shift of approach to the interpretation and administration of the rules. There is room for optimism that rule 2 is not a mere embellishment, notwithstanding the fact that the interpretation by the Court of Article 107A(2)(e) of the Constitution in relation to the administration of the Rules, which is substantively as Rule 2, is not that promising. 2. The Philosophy; The Court of Appeal as the court of last resort has many considerations when determining any matter before it. It has
1

a noble duty to ensure that any appeal before it is determined fairly. It has a duty to ensure that the appeal is determined in accordance with the laws properly enacted. It has the duty to protect the integrity and the dignity of the justice system in the entire country. Am afraid these duties sometimes are at loggerheads. A balancing act is therefore needed. When discharging its constitutional duties the court has two important goals. One to ensure that the decisions emanating from the court and the courts below it are fair and that the justice system is efficient. These two also in many cases they do conflict. A balancing act is also needed. Sometimes the justice system fails. The Primary Court got it wrong, the District Magistrate Court erred and the High Court did the unthinkable. It is for the Court of Appeal to clear the messy. There is therefore the vindication duty on the part of the court to protect the justice system in the country. It seems to me that the framers of the Rules clearly have that thinking in their minds otherwise I do not find a reason why Rule 2 has been introduced, in addition to Article 107A(2)(e) of the Constitution. Rule 2 seems to me to be the guiding principle or the overriding objective, which rhymes well with Article 107A(2)(e) of the Constitution of the United Republic of Tanzania, 1977. I will argue that it breathes life into the Rules as whole. It reads as follows: In administering these Rules, the Court shall have due regards to the need to achieve substantive justice in the particular case. I have chosen to emphasize the phrase substantive justice for one obvious reason. The framers of the rules have decided to subordinate procedural justice to substantive justice. In every case before the Court, therefore substantive justice, according to the laws, must trump the procedural justice. One cannot fail to see such an obvious framework if

he considers Article 107A(2)(e) of the Constitution. That article reads as follows: Katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzingatia sheria, Mahakama zitafuata kanuni zifuatazo, yaani: kutenda haki bila kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka. (2008 Swahili version of the Constitution) The need to achieve substantive justice seems to me to be the clarion call of the framers of the Rules. The overriding principle of the Rules therefore is to determine cases fairly and justly, subordinating the procedural requirements where its compliance would undermine substantive justice. It is my considered opinion therefore that these provisions are not mere embellishments. They are at the heart of the justice system itself. The question is how the court realizes that goal. It is through interpretation. Interpretation therefore matters. 3. Interpretation Matters Yes, it matters. That is precisely the reason why we have courts presided over by judges or magistrates. Their duties are to decide. But what is to decided? It is to consider the facts and interpret the law in light of the facts. Unfortunately it does not end up just there. It goes further than that. The law has the purpose. The law has objectives. The law has a goal. The interpreter therefore has the duty to interprete the law in light of both the facts and the objectives, the goals or the purpose of the law. It is in such context that we have Rule 2, Rule 4(2); and Article 107A(2)(e) of the Constitution. Legal interpretation has a context. It is not conjured up from the vacuum. It is my considered opinion that a working justice system can be born out of a court, which interprets the rules of the court with an eye to both fairness and efficiency. The interpretational context therefore should be a struggle to
3

strike a balance between fairness and efficiency. The results should be fair determination of disputes and an efficient system. I am aware that Article 107A(2)(e) of the Constitution has previously been interpreted by the Court to the effect that it does not require the Court to subordinate procedural justice to substantive justice. (See Civil Reference No. 22/2005

China Henan International Co-operation Group versus Salvand K.A. Rwegasira; unreported). The rationale given

by the court has been that the rules of procedure are fundamental in the administration of justice. In China Henan case, the Court took the position that citing a wrong provision of the law is not a technicality falling within the purview of Article 107A(2)(e) of the Constitution, rather it goes to the root of the matter. The Court, however, fell short of guiding us what is the root of the matter, nor guide us as to what technicalities are a subject matter of Article 107A(2)(e) of the Constitution. The Court fell short of informing us even by way of obiter dictum which are the technicalities falling within the ambit of Article 107A(2)(e) of the Constitution. The Court denied us guidance.

Civil Application No. 141 of 2011 D.T. Dobie (Tanzania) Limited versus Phantom Modern Transport (1985) Limited, (unreported) bears testimony. There the Court having considered In Re Coles and Ravensheer [1907] 1K.B.1, concluded that it has always been the rule that the rules of procedure should facilitate rather than impede decisions on substantive issues.
That position, however, seems rather novel. The Court further stated that, the primary duty of the

courts is to decide substantive issues contested by the parties It cited Lord Bowens statement in Cropper vs. Smith [1884] 26 Ch. D. 700, 710 with approval. The
statement reads:

It is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights... . I know no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for deciding matters in controversy
The Court also cited Essaji vs. Solanki [1968] E.A. 218, 224 which ruled that the administration of justice should

normally require that the substance of all disputes should be investigated and decided on their merits, and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights
The D.T Dobie Court gave these judicial pronouncements something dear. It recognized these judicial pronouncements to bear and carry constitutional badge in this country. The Court observed as follows:

In this country, too, these judicial pronouncements have been given constitutional expression through the Thirteenth Constitutional Amendment vide Act No. 3 of 2000. The Court then cited Article 107A(2)(e) of the Constitution, and proceeds to state as follows:

The principle under sub-article (2) are expressed in imperative terms and are therefore binding on the courts.
To my knowledge the Court has, never departed from this decision rendered in 2002. Yet of recent, this position of interpreting the Rules was abandoned, in favour of strict compliance with procedural rules.

The Court of Appeal of Uganda got it right in my humble view. In Saggu v. Roadmaster Cycles (U) Limited, [2002] 1 EA 258 CA (U), the Court held that where an

application omits to cite any law at all or cites the wrong law but the jurisdiction to grant the order exists, the irregularity or omission can be ignored and the correct law inserted. That court cited with approval a
1968 decision of the Court of Appeal for East Africa,

Nanjibhai Prabhudas & Co., Ltd vs. Standard Bank Ltd

[1968] E.A. 670, at 683, which took this view. The court should not treat any incorrect act as a nullity with the consequence that everything founded thereon is itself a nullity unless the incorrect act is of a most fundamental nature. Matters of procedure are not normally of a fundamental nature. The court rested its reasoning with yet another case. This time the Uganda Supreme Court in Re Christine NamatovuTebajjukira [1992-93] HCB 85, where the Supreme Court held: The administration of justice should normally require that the substance of disputes should be investigated and decided on their merits and that errors and lapses should not necessarily debar a litigant from the pursuit of his rights. I rest my case on this issue. In relation to the interpretation of rules there has been in the past the question of consequences attaching to failure to comply with the Rules. The Court had taken a tough stance. In many cases any non-compliance has attracted striking out of the appeal as the penalty. Yes, we all agree that the rules of procedure are important in ensuring fair results for both parties. We agree that penalties must be meted against breach of the procedural rules. However, there is a large room for disagreement on the penalty to be meted for non-compliance with the rules. Is it fair and efficient that for every non-compliance with the rules; should attract striking out of the appeal? I believe that such a penalty is in place where even an amendment cannot cure the defect therein. If amendments can cure such defects
6

then going for striking out the appeal is both unfair and ineffective. There are breaches where amendments and cost will suffice and others where striking out will be fair. While on this aspect still it is worth to note that all provisions of the Rules, which require doing of an act, are enacted imperatively. The word shall has been used. As we know section 53(2) of the Law of Interpretation Act, [Cap 1 R.E. 2002], stipulates that shall connotes imperative. If something has to be done, then it must be done. Make no mistake about that. The question however, is whether such thing required to be done must only be done within the time provided for by the Rules? I argue that it can be done out of the time provided for by way of amendment. Any interpretation, which insists, doing such act within the time provided for only is problematic. First it takes away the right of amendment, by making Rule 111 meaningless. Second, it carries the potential to make the Court to be ineffective. Rather than use its meager resources to only hear appeals, such resources would be reverted to hearing applications for extension of time again and again. 4. Amendments; Under Rule 111 of the Rules, the Court may at any time

allow amendment of any notice of appeal or notice of cross-appeal or memorandum of appeal, as the case may be, or any other part of the record of appeal on such terms as it thinks fit. This rule should be read
together with Rules 50 and 20 of the Rules. Rule 111 is in pari materia with rule 104 of the 1979 Rules, while Rule 501(1) is in pari material with Rule 47(1) of the 1979 Rules; and Rule 20 is in pari materia with Rule 18 of the old rules. I am aware of the decisions of the Court, which hold that the right to seek an amendment ceases if your opponent files a Notice of Preliminary Objection against the error before you
7

seek the amendment. Our justice system has effectively been reduced to a race, in which the first person to spot the error wins irrespective of the merits of his case. In Civil Reference No. 142/2005 China Henan

International Co-operation Group versus Salvand K.A. Rwegasira; (unreported) which was an application for
leave to amend the reference, the Court reaffirmed its position now dubbed preempting preliminary objection which means you cannot seek an amendment after the opposite party has raised an objection. The Court came to full agreement with Civil Application No. 01/2005 Method

Kimomogoro versus Board of Trustees of TANANPA, (unreported); Civil Appeal No. 58/1997 Kantibhai M. Patel versus Dahyabhai F. Mistry.
In the Kimomogoro case, the Court held as follows; This

Court will not tolerate the practice of an advocate trying to pre-empt a preliminary objection either by raising another objection or trying to rectify the error complained of. In the Kantibhai case, the Court held that, Once an objection is taken to the competence of an appeal, it would be contrary to law to entertain a prayer the effect of which is to defeat the objection.

Having considered these cases, the China Henan Court proceeded to strike out the application for amendment even though the preliminary objection itself was preferred under a wrong provision of the law! The interpretational position taken by the Court renders the phrase any time in Rule 104 then, now Rule 111 meaningless. Any time does not mean before an objection preferred. It means one can seek amendment even on the hearing date. Reading Rule 50(1) of the Rules confirms that view. The Rule stipulates as follows:

Whenever formal application is made to the court to amend any document the amendment for which leave is sought shall be set out in writing and, if practicable, lodged with the Registrar and served on the Respondent before hearing of the application or, if that is not practicable, handed to the Court and the Respondent at the time of hearing. I will go further to advocate that if the application is made informally you can do that even in the course of hearing. That is well within the meaning of any time. While on this issue it is pertinent also to look at the doctrine of defective record of appeal. There is a string of the Courts decisions, which have held that a defective Record of Appeal means there is no Record of Appeal at all, and therefore nothing to amend. In Civil Appeal No. 62/2001 Sunny Engineering and Auto Works Limited versus Ally Yusufu Mpore, the appellants record of appeal did not contain a copy of the pleadings in the trial court. The Appellant applied for amendment. The prayer for amendment was rejected on the ground that there was nothing before the Court to be amended. The court resorted to Rule 18(2) of the Rules, which is now Rule 20(2) of the new Rules to rule that the amendments contemplated under the Rules are amendments of the documents already in the record of appeal. It must be a document which is already part of the record itself and not otherwise. The court gave an imprimatur of a restrictive interpretation of the Rules. The same reasoning was taken in Civil Appeal No. 10/2007 between Haruna Mpangaos and 902 Others versus Tanzania Portland Cement Co. Limited. There the Appellant filed a supplementary record of appeal on realization that the original record contained a decree not signed by the trial judge. The court held the appeal was incompetent. It observed the right course of action would
9

have been to seek extension of time and file a fresh record of appeal. The ratio decidendi of these cases is that a defective record of appeal cannot be cured by amendment because the defectiveness of the record erases the appeal from the record and makes the appeal to cease from existing. It is my humble opinion that a defective record of appeal means there is an error in the record of appeal. It does not mean that it ceases to exist. A sick human being does not cease to be a human being. He can be cured by the right medicine. A defective record of appeal is still a record, notwithstanding the fact that certain items are wanting. It does not cease to be a record simply because of certain defects. This is exactly what amendment is intended to cure!!! Yet, there is something curious in interpretation of the Rules in these cases. The court did not seek to find out the definition of amendments. The 1979 Rules does not define amendments. The 2009 Rules equally do not define the term amendments. Luckily amendment is defined in section 4 of the Interpretation of Laws Act [Cap 1 R.E. 2002], to mean the following:

Amend means replace, substitute, in whole or in part, add to or vary, and the doing of any two or more of such things simultaneously or by the same written law.
If this is the meaning of amendment, then I will argue that a defective record can still be amended. It can be replaced, or substituted without necessarily a time delay of applying for extension of time to file a fresh record of appeal. To be fair to the court I may hazard a guess to argue that perhaps the court was deluded by the requirement in the rule 18 now rule 20 to the effect that amended document must show both the deleted words and the changes effected. In fact Sunny Engineering and Auto Works Limited, Court emphasized the

10

word original. Yet that view does not take on board the definition of amendment in its entirety. Reading Rule 96(6) of the Rules for the first time I experienced a sigh of relief. But now am afraid. My relief was not upon reflection. Am afraid that the offer made under Rule 96(6) might prove to be fatal if the restrictive interpretation continues reigning in the Court. That rule provides that if any document supposed to be in the Record was omitted, within 14 days from the date of lodging the Record you may include them in the Record without leave of the Court. After that by implication it means you must seek leave of the Court. Will one not be told: you had 14 days. You failed to exploit them. What sufficient grounds have you got? 5. The Appeal in Civil Cases; Under the 2009 Rules, the appeal takes three stages. First is the requirement for the lodging of the Notice of Appeal under Rule 83, which I call the commencement stage. The second stage is the institution of the appeal under Rule 90, which is marked by three things, namely the lodgment of the memorandum of appeal; the record of appeal and payment of the security for the costs of appeal. The third stage is the hearing stage under Rule 106, which involves two stages. The first is the lodging of the Written Submission in support of the appeal, under Rule 106(1) and the filing of the list of authorities under Rule 34(2); while the second stage is the abridged hearing under Rule 106(12). This is the oral hearing. (a) Commencement of Appeal; Within 30 days from the date of delivery of the decision challenged, an aggrieved party must lodge a Notice of Appeal in the High Court Registry. See Rule 83(2) of the Rules. The Notice of Appeal has specific requirements mentioned in Rule 83(3). They are as follows: a statement whether it is intended to appeal against the whole of the decision or only a part of the
11

decision; if it is only a part of the decision, then that particular part must be specified; a statement of the address of service of the appellant; a statement of the names and addresses of all persons intended to be served with copies of the notice. Though Rule 83(2) stipulates that Notice of Appeal has to be lodged within 30 days from the date of delivery of the decision that may delude in some cases only to find that you are out of time. That is so if you carefully read Rule 83(4), Rule 46(1) and Rule 45(a) of the Rules. Rule 83(4) provides that if the appeal lies with leave or certificate on point of law, it is not necessary to obtain them before lodging the Notice of Appeal. My understanding of this rule is that you lodge the Notice of Appeal first and then seek and obtain the leave or the certificate. That rule rhymes well with Rule 46(1), which also provides that if leave or certificate is necessary you first lodge the Notice of Appeal, and then seek the certificate or leave. However, Rule 45(a) breaks down that logical progression. This rule enacts that where appeal lies with leave of the High Court, that leave may be sought informally on the day when the decision is made; or if made formally, then the same should be sought within 14 days from the date of delivery of the challenged decision. A literal interpretation of Rule 45(a) contradicts Rules 46(1) and Rule 83(2). You have less than 14 days within which to lodge the Notice of Appeal in case the appeal lies with leave of the High Court. It means if the appeal lies with leave or a certificate on point of law, your notice of appeal must be filed within 14 days from the date of the decision desired to be appealed
12

against, if you follow the logic of Rule 46(1) and 83(2), which requires that you lodge first the Notice of Appeal and seek the certificate or leave later. If you take Rule 45(a) on its own, you can lodge the notice later on after you had already applied for leave or certificate as long as it is within 30 days. Within 14 days from the date of lodging the Notice of Appeal, the Appellant must serve that Notice to the Respondent. See Rule 84(1) of the Rules. The court has taken an exceptional hard stance on the requirement to serve notice of appeal within time. It has been characterized an essential step within the meaning of Rule 89(2) of the Rules. See Civil Application No. 91/2010 Educational Books

Publishers Limited vs. Hasham Kassam & Sons Limited and 3 Others. The Court reaffirmed its

earlier position, under Rule 82 of the old rules in Stephen Wasira vs. Joseph Warioba [1997] T.L.R 205 that service of Notice of Appeal is an essential

step.

Yes, I concede that notice to the other party is one of the fundamental principles not only of civil procedure but the entire justice system. Proceedings without notice to the other party are a nullity because they are prejudicial to the opposite party. However, that does not mean that failure to issue notice before commencement of the proceedings themselves will be prejudicial to the opposite party or the court, to the extent that there is no remedy for that. I believe there are two remedies both of them fair, but one is both fair and efficient. It is fair for the court to strike out the appeal. The problem is that the aggrieved party will go back and seek extension of time to serve notice out of time. If he succeeds he will be back to the court. Time and
13

money spent makes this course of action inefficient. If extension of time is denied, he is left with bitter feelings that the justice is not working. I do not believe there is a single judge to the bench ready to go that way just for the sake of adherence to the rules. The second option is to allow the flouting party to serve the other party out of time with costs. It is fair and efficient. Why? Rules of procedure are not adhered just for the sake of venerating them. No. We adhered to them for the purposes of determining disputes. We do not follow them for the sake of barring determination of real disputes. The court can do better by borrowing a leaf from the following statement: the code of procedure must be regarded as such. It is a procedure, something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Justice Vivian Bose in Sangram Singh vs. Election Tribunal, Kotak, AIR [1955] SC 425. In fact in the past the Court had embraced this position. The D.T. Dobie Court (supra) partly observed: the rules of procedure should facilitate

rather than impede decisions on substantive issues.

After service of the Notice of Appeal, all those whom notice has been served they are required within 14 days from the date of receipt of service of notice to lodge and serve the Intended Appellant a full and sufficient address for service. See Rule 86(1)(a) of the Rules. This concludes first stage, which is the commencement of the appeal. The second stage is the institution of the appeal. Let us turn to that. (b) Institution of Appeal;

14

Rule 90(1) provides that an appeal should be instituted within 60 days from the date of the lodging the Notice of Appeal. The institution of the appeal involves three things. They are: lodging of the memorandum of appeal, the record of appeal and payment of the security for the cost of appeal. See Rule 90(1)(a), (b) and (c). The requirements and contents of the Memorandum of Appeal are provided for under Rule 93(1) and (2), while the contents of record of appeal are provided for under Rule 96(1). Under Rule 96(3) a party can make an application before a Justice or Registrar whether to exclude any document from the record of appeal. If a document was not included by error the Appellant may include that document in the record of appeal without leave of the court. He can only do so within 14 days from the date of instituting the appeal, meaning from the date of lodging the Memorandum and Record of Appeal. See Rule 96(6). The Appellant must serve the memorandum of appeal and the record of appeal to the Respondent within 7 days from the date of lodging them. See Rule 97(1). The requirement for security for costs of the appeal is provided for under Rule 120 and Rule 14(6). Rule 120 (1) provides that a sum of Tshs two thousand should be payable in the court on the institution of the appeal. Rule 14(6) provides that the Registrar should not accept the memorandum of appeal if the security for costs of appeal has not been paid to the court. By virtue of Rule 96(1) you need certified copies of the proceedings, rulings, orders, judgment and decree, which are mandatory documents to form part of the record of appeal. You obtain these documents by writing a letter to the Registrar asking him to provide
15

you with these documents for purposes of preparing your appeal. The proviso to Rule 90(1) requires that that letter is written and submitted to the Registrar within 30 days from the date of delivery of the decision the subject of appeal. This letter is important because its existence is a sufficient ground for the court to waive the requirement under Rule 90(1) to institute the appeal within 60 days from the date of lodging the notice of appeal. As we know rarely in our courts one can get certified copies of proceedings, judgment and decree within a span of days or a week. Certainly you will need an extension of time. It is this letter to the Registrar, which warrants you a Certificate of Delay, if and only if it is served to the opposite party. For the Appellant to rely on the proviso to Rule 90(1), he must therefore show that the letter seeking copy of the proceedings, judgment and decree was submitted to the Registrar within 30 days from the date of judgment of the challenged decision and that such a letter was also served to the opposite party. See Rule 90(2). (i) Cross Appeals A Respondent who wishes to file a cross appeal, has 30 days from the date of receipt of the Memorandum and Record of Appeal, within which to lodge a Notice of Cross Appeal. See Rule 94(1),(2). After lodging the Notice of Cross Appeal the Respondent must serve it to the Appellant within 7 days from the date of lodging it. See Rule 101(1). If, however, the Respondent wishes the court to affirm the challenged decision on grounds other than those relied on or in addition to those relied upon, he has to issue a Notice to that effect, under Rule 100(1), in a period of 30 days according to Rule 100(2); from the date when he received the
16

Memorandum and Record of Appeal; and to ensure that the Notice to Affirm the Decision is served to the Appellant within 7 days from the date of its lodgment according to Rule 101(1). (ii) Withdrawal of Appeals The Appellant can withdraw his appeal at any time before hearing by filing a Written Notice. See Rule 102(1). After lodging the Notice to Withdraw he is required to serve it to the Respondent within 7 days from the date of its filling. If all parties consent to the withdraw the appeal will be marked struck out according to Rule 102(3), but if they do not consent then the appeal will be dismissed, according to Rule 102(4). Under Rule 103(1) if the appeal is withdrawn a party who issued a Notice of Cross Appeal has 14 days within which to withdraw the notice of cross appeal if he desires to do so. If he does not, then the cross appeal will be heard as the appeal. If the appeal, on the other hand, is withdrawn under Rule 102 a Respondent who has not issued a Notice of Cross Appeal can issue a Notice of Appeal within 14 days from the date when the Notice of Withdraw was served to him. However, that applies only if the withdraw was made within 14 days from the date of institution of the appeal. See Rule 103(2). (c) Hearing of Appeal The hearing of appeal commences with filing written submissions. The new rules have introduced abridged hearing. You have 30 minutes to put your case to the Court. See Rule 106(12). This is intended to supplement the Written Submission, which a party is required to file before the oral hearing date is fixed.

17

Under Rule 106(1) the Appellant must file his Written Submission in support of the Appeal within 60 days from the date of lodging the memorandum of appeal; and serve that submission to the Respondent within 14 days from the date of filing the submission in accordance with Rule 106(7). Upon receipt of the Appellants submission, the Respondent is required to file his submission in reply within 30 days from the date of receipt of the Appellants submission. See Rule 106(8). If it happens that a Notice of cross appeal has been lodged, the Appellant will file a supplementary submission of his arguments within 14 from the date of service. See Rule 106(6). He will have to serve the supplementary submission to the Respondent within 14 days from the date of service. There are four requirements to be observed in preparing the written submission. See Rule 106(2). The material facts of the case must be concisely stated; the issues arising from the facts as stated; statement of questions which the party wants the court to address; and legislations to back up the submission. The submission must have the following qualities: clarity, accuracy, brevity and precision. See Rule 106(4). Failure to meet those qualities is a ground for the Court to refuse entertaining the submission. The Court may direct the flouting party to amend his submission under Rule 106(5). After each party has filed the submissions the hearing date will be set. See Rule 106(11). Under Rule 106(19) the Court can dispense with the need to file submission if there is a need to accelerate hearing of the appeal.

18

The parties have 30 minutes each to present the oral submission before the Court on the hearing day. See Rule 106(12). If one needs more than 30 minutes he has to apply for extension of time 15 days before the hearing day. See Rule 106(13). The application must state why the submission cannot be made within the time limit. (i) Failure to file Written Submissions If the appellant fails to file written submission in a period of 60 days from the date of lodging his appeal, the Court may dismiss the appeal. See Rule 106(9). An extension of time is allowed. However, the provision does not state clearly within which time shall the application for extension of time be made. Since the provision is silent, I will argue that one should be allowed to seek extension of time even after an objection has been taken or the court does it sua moto. If the appellant does not appear on the hearing date the Respondent may apply to the Court to strike out the appeal, notwithstanding that the submission in support of appeal was filed within time. See Rule 106(17). If it happens that the Respondent was served the submission in a period of 14 days from the date of filing, but failed to file a reply submission, according to Rule 106(10) the Court may proceed with the determination of the appeal ex-parte. If he filed the submission but on the hearing date failed to appear the Court may proceed ex-parte against him. See Rule 106(18). The question is what happens when on the hearing date, he appears before the court. Will his 30 minutes be forfeited? I will argue that he should be entitled to be heard within that time notwithstanding that he
19

failed to file his submission in reply, because that is the day when the appeal is called on for hearing. If both parties do not appear then under Rule 106(16), the appeal will be treated as having been argued and will be considered by the Court as such. (ii) List of Authorities The written submission must be accompanied by a list of authorities to be relied on. See Rule 34(2). According to this rule such list of authority accompanying the written submission must be lodged at least 48 hours before hearing of the appeal, according to Rule 34(2)(b). This rule contradicts Rule 106(11), which provides that a hearing date shall be set after the filing of submission has been completed. It is my guess that this rule may apply in those cases where the Court has resorted to Rule 106(19) to expedite the hearing of the appeal. 6. Civil Applications Generally Applications to the court are by way of Notice of Motion supported by an Affidavit. See Rule 48(1) and Rule 49(1). Informal applications or consensual ones are supposed to be made orally. See Rule 48(3). The Notice of Motion should state the ground for the relief sought. Such application must be served to the party or parties within 14 days from the date of filing it. See Rule 48(4). However, under Rule 55(1) it is provided that notice of motion and copies of all affidavits shall be served on all necessary parties not less than two clear days before the hearing. The question is which is which? Rule 48(4) or Rule 55(1)? Both fall under the same part of the statute and on the same subject. The other stipulates party or parties while the other stipulates necessary party Is the difference in nomenclature decisive?

20

Under the civil proceedings rubric there is an essential distinction between a necessary party and a proper party. A necessary party is one whose presence is indispensable to the constitution of the suit, against whom the relief is sought and without whom no effective order can be passed. A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for a complete and final decision on the question involved in the proceedings. I argue that because Rule 48(4) simply mentions a party while, Rule 55(1) specifically mentions necessary party the latter technically prevails over the former since both are under the same part of the statute. However, on practical grounds, fairness and efficiency, Rule 48(4) must prevail, on the ground that two days rule, breaches the notice rule. The opposite party is entitled to a sufficient notice for him to prepare a reply affidavit and to prepare for hearing in time. It is the same Rules which provide that the Respondent who has been served with the Notice of Motion is required to file an Affidavit in Reply as soon as practicable. See Rule 56(1). Not only that but also there is a requirement under Rule 106(1) to file written Submission in support of the application, and a list of authority under Rule 34(2)(c) of the same Rules. One cannot be expected to file his affidavit in reply, written submission and a list of authority if Rule 55(1) prevails. I would guess that the rule would be applicable in cases of certificate of urgency in which the Registrar has directed that the other party be heard. An application for leave to appeal must be accompanied by a copy of the decision which is desired to appeal from and if an application has been made to the High Court, then the copy of the decision of the High Court must accompany this application. See Rule 49(3).

21

After filing the Notice of Motion, the Applicant is required to file Written Submission within 60 days from the date of filing the Notice of Motion; as per Rule 106(1); serve that submission to the Respondent within a period of 14 days from the date of filing the submission; as per Rule 106(7); and the Respondent is required to file his Written Submission in a period of 30 days from the date of being served with the Written Submission, as per Rule 106(8). Thereafter the Respondent will be required to serve his submission to the Applicant. I am afraid I havent seen any provision as to what is the time within which service must be effected to the Respondent. It is a requirement that the Notice of Motion must cite a specific provision of the law under which it is brought. See Rule 48(1). I have noticed that this requirement was not in the old rules, i.e. Rule 45(1). I hope one day the Court will borrow a leaf from the Uganda Court of Appeal. (a) Revision; An application for revision before the court is by way of Notice of Motion supported by an affidavit. See Rule 65(1), (3). The Notice of Motion must state the grounds of the application. See Rule 65(1). The application must be made within 60 days from the date of the delivery of the decision sought to be revised. See Rule 65(4). The Applicant must serve the Respondents that application with 14 days from the date of filing it, and he must file proof of service to the Respondent to the court. See Rule 65(5).

(b) Review; An application for review before the court is by way of Notice of Motion supported by an affidavit. See Rule 66(2) read together with Rule 65(1), (3). The Notice of Motion for Review shall be filed within 60 days from the date of delivery of the decision sought to be reviewed. See Rule 66(3). The Applicant is under
22

obligation to serve the application to the Respondent within 14 days from the date of filing the application. He will also have to file proof of service to the Respondent. See Rule 66(4). For the court to review its own decision the Applicant must show the grounds provided for under Rule 66(1)(a)-(e). They are as follows: manifest error on the face of the record resulting in the miscarriage of justice; deprivation of the opportunity to be heard; the decision challenged is a nullity; want of jurisdiction, judgment being procured illegally, by fraud or perjury. (c) Stay of Execution; Under Rule 11(2)(b) and (c) the court may order stay of execution upon showing good cause. So a party who seeks stay of execution must have first lodged notice of appeal under Rule 83 and that his affidavit must show good cause. Yet under clause (d) of sub-rule 2 of Rule 11, a test is put in place for success of the application for stay of execution. The court cannot order stay of execution unless it is satisfied of three things, which are: substantial loss may result to the Applicant; the application was without unreasonable delay; and that security has been given for the performance of the decree or order challenged. It is my humble opinion that the three conditions under clause (d) of sub-rule 2 of Rule 11 are unwarranted. Good cause would have been a right test. Why? I am not sure that the three conditions put in place cover all cases of good cause. Yet there are cases where a person might not be able to provide security for the performance of the decree or order challenged. Will he loose just because of that? The application for stay of execution can be heard ex-parte. See Rule 11(2)(e).

23

(d) Extension of Time; On showing good cause the Court may grant an extension of time to the Applicant. See Rule 10. This Rule is a replica of Rule 8 of the 1979 Rules. The Application can be done before or after the expiration of the time. I argue that this rule flies on the face of the precedent that one cannot seek to amend a documents or anything after the opposite party has taken an objection against him. If the rule allows making an application at any time I doubt the rationale to prohibit such an application when a preliminary is raised first. (e) Certificate of Urgency Applications. They are provided for under Rule 51 and 53. A Certificate of Urgency can be filed in any registry. See Rule 51(1). A party filing a certificate of urgency must show a prima facie case of the special circumstances or serious hardship faced by the Applicant. Rule 51(2) and Rule 53(3)

7. Preliminary Objections; Rule 107(1) gives the right to raise an objection against the appeal to the Respondent. Rule 89(2) entitles the Respondent to apply to the court to strike out an appeal for failure to take essential steps. I am not advocating for a street court, where the only rules that reign out there is emotions. I fully understand and fully defend the importance of having rules to facilitate the determination of legal disputes. However, I am advocating for rules, which facilitate the determination of disputes. In that context I am raising the question of whether it is proper for the final Court of the country to have rules of objections, which aids and abets barring hearing and determination of actual legal disputes.
24

My view on this question is to fully empower the Registrar to be a gatekeeper. Why not about having a chamber in the Court headed by the Registrar who will have the duty to cross check the propriety of the documents filed. In that role his duty is to ensure that if there are errors then the parties can amend them. After that the case should go to Court for purposes of being heard not determination of objections. There is need to have all objections determined before the Registrar or a single judge to ensure that no appeal which surfaces in the Court of Appeal will be strike out. I will revert to this subject here in below on the powers of the Registrar. 8. Criminal Appeals (a) Institution of a Criminal Appeal The Appellant is required to give notice of appeal in writing within 30 days from the date of the decision. The Notice institutes the appeal. See Rule 68(1). The notice is lodged in the High court where the decision challenged was made. If the advocate for the Appellant signs the notice of appeal, under Rule 68(6) he is bound to add the phrase Retained only to prepare this Notice or Retained to appear at the hearing of the appeal or Assigned to appear at the hearing of the appeal. (b) Record and Memorandum of Appeal Upon lodging the notice of appeal the Registrar of the High Court prepares the Record of Appeal as soon as practicable. The phrase as soon as practicable gives an impression that preparation of the record of appeal will take off without any delay. I am wondering why there isnt a specific time limit as it for the civil appeals! The contents of the Record of Appeal are spelt under Rule 71(2), 71(3) and 71(4).

25

After preparation of the Record of Appeal, the Registrar of the High Court will serve the ready prepared Record of Appeal to the Appellant. The Rules are silent as to the time lines. Within 21 days from the date of receipt of the ready prepared Record of Appeal the Appellant is required to lodge the Memorandum of Appeal at the place where the appeal is to be heard. See Rule 72(1). The Registrar of the High court while serving the Record of Appeal will intimate to the Appellant the place where the Appeal will be heard. The Registrar of the Court will serve the Memorandum of Appeal to the Respondent. See 72(3). There is a serious consequence for failure to lodge the Memorandum of Appeal within time. Under Rule 72(5) the appeal will be dismissed. However, upon show of sufficient cause the appeal can be restored for Hearing. After lodging the Memorandum of Appeal, the Appellant with the leave of the court can lodge a supplementary memorandum, as per Rule 73(1). For an advocate assigned to prosecute an appeal he is at liberty to file a supplementary to a memorandum of appeal or a substitute of the memorandum already filed at any time before hearing and without leave of the court, as per Rule 73(2). If the Appellant is in prison serving sentence, he institutes an appeal by simply filling Form B/1 and C/1; and handing them over to the Officer in-charge of the Prison. Those forms shall indicate his intention to appeal; and the particulars required be included in the Memorandum of Appeal or Statement of his argument in support of the Appeal. See Rule 75(1). The Officer in-charge on receipt of these forms is required to forward them to the Registrar of the High

26

Court, for purposes of preparing the record of appeal, memorandum of appeal and the Statement (c) Hearing and Submission of the Appeal Within 21 days from the date of lodging the Memorandum of Appeal the Appellant is required to lodge a Written Statement of his argument. This requirement, however, applies to Appellant or the Respondent if the Appellant is the State, who does not intend to appear on the hearing. See Rule 74(1) and 74(2). Under Rule 74(3) where a person has lodged a Written Statement of his argument, on the hearing day, still he is at liberty to address the Court. No time limit as to what time he can address the Court. On the date fixed for hearing of the appeal, if the appellant or his advocate does not appear the appeal may be heard in his absence or be dismissed under Rule 80(4); if he has not lodged his Statement of Argument under Rule 74(1). The appeal dismissed under this rule still can be restored upon showing sufficient cause. Under Rule 81(1) an appellant or his advocate can be granted leave to argue any ground not contained in the memorandum of appeal or supplementary memorandum. (d) Withdraw of Appeal The Appeal can be withdrawn by notice to the Registrar. See Rule 77(1). Its consequence is that the appeal will be deemed to have been dismissed. However, under Rule 77(3) the appeal can be restored by leave of the Court upon showing that the withdrawal was induced by fraud or mistake and that the interests of justice requires that the appeal be heard. Why should not the ground be showing of sufficient cause or good cause?
27

9. Administration of the Rules The office of the Registrar is crucial in the administration of the Rules. It is established under Rule 7. The Rules have conferred specific duties and powers to the Registrar. He has sufficient powers to resolve much of todays problems in relations to the administration of the Rules. His powers and duties are spelt out in Rule 13(7). They are as follows among others: 13(7)(a): to require any memorandum of appeal or application or other proceeding presented to the court to be amended in accordance with the practice and procedure of the court or rules of the court thereto and ensure that the directions are complied with; (c) to direct any formal amendment of record; (g): to allow from time to time as prescribed in these Rules, on a written request, time to furnish information or of doing any other act necessary to bring the appeal, application or other proceeding in conformity with the rules and practice of the Court. This provision was rule 11 of the old rules. The three sub clauses however, are new. These provisions vests powers in the Registrar to allow amendment of documents failing to comply with the Rules. It is the best innovation of all the rules. This rule can serve a lot of circumstances. First, it has the potential to make the rules quite effective. Rather than going to Court to seek an amendment by application, this rule reduces time, which would have been spent by the Court, the applicant and the respondents. Two by shortening the process, it ameliorates the delay. Third, it reduces the costs of litigation to all the parties the Court included. By the Court I mean that every time the Court sits, it is time paid by the taxpayers money. My concerns are two. First, whether this provision will be so construed and second whether real such powers will be accepted to be reposed in the Registrar. Here I am haunted by the doctrine of a defective decree. If
28

history is of anything, then such powers should be reposed in him. That aside, there is an obvious problem in the Rules. Rule 14(5) of the Rules stipulates that if the Registrar directs an amendment then such amendment shall be done within the time prescribed by the rules for lodgment of the documents not otherwise. That being the case, the question is what if I become aware of the need to amend the document on the last day of lodging the document? I can sense a bad drafting which if narrowly interpreted will curtail the powers of amendments in the hands of Registrar to limit it to the period within which a litigant is within a period of lodgment but not afterwards. If that construction will prevail, we will be back to where we were. I hope the provision will be liberally interpreted to include the period after the lodgment. That coupled by the definition of the Court under Rule 3, which is the interpretational clause, which seemingly excludes the Registrar from the Court my optimism, might be rightly questioned. My answer, however, is that the powers conferred under Rule 13(7) are judicial not merely administrative. He has powers to hear and determine applications under Rule 96(3) of the Rules, for example. 10. The Practice, Procedure and Powers of the Court The procedure and practice of the Court is regulated by the Rules. However, the court can depart from the Rules at any time, in any case in which the interests of justice so requires. See Rule 4(1) of the Rules. Equally the court can issue directions as to the procedure to be adopted or make any order it considers necessary in three important circumstances. First in dealing with matters where there is no provision in the rules, Rule 4(2)(a); second for

29

better meeting the ends of justice, Rule 4(2)(b); and third, to prevent an abuse of the court process, Rule 4(2)(c). The court has the powers to confirm, reverse or vary the decision of the High Court or remit the proceedings to the High Court, under Rule 38; the power to call reports from the trial court, under Rule 37 and the power to appraise evidence or take additional evidence under Rule 36(1). Reading together Rule 28 and 60 one is left with an impression that the powers of a single justice are limited to applications for extension of time only. Under Rule 28 determination of appeal, revision, reference and review is reserved for the full Court; while Rule 60(2) shows that applications for leave to appeal; stay of execution; striking out notice of appeal are also reserved for the full Court. The judgment of the Court has to be delivered at once or within 90 days from the date of final hearing of the appeal, failure of which will necessitate reasons to be recorded by the Court, under Rule 39(1). 11. Conclusion Three things emerge out. One is that the Rules demand that advocates be meticulous in preparing the appeal. Two is that the Rules are not efficient and do not guarantee fair determination of disputes. Three is that as of now we do not know yet which approach the Court will take to administer the Rules in light of Rule 2. We have seen that a rule is inefficient if it escalates the delay of the determination of the appeal; or if it increases the costs of litigating the appeal; or if it leads to committing too much resources of the court for its compliance; and/or if it aids and abets legal malpractice or ethical misconduct on the part of the advocate. The classic examples of such rules are all

30

preliminary objection rules, which do not determine the appeal once and for all. We advocates have a role to play. We have a duty to help the Court to fully administer the Rules in light of Rule 2. If we take that stand, the Bench will certainly be with us.

31