LITIGATION & KEY CASES: The ‘oxygen rule’- A kiss of life for Tanzania litigants?

Picture this: You’ve filed your case in a court or tribunal and it is struck out on a legal technicality such as an omission from, or an anomaly in, the record of proceedings. What would you do?

This is the same position that Mr Yakobo Magoiga Gichere could have found himself in, had it not been for the application of the ‘oxygen rule’, also known as the ‘overriding objective principle’ of civil litigation, by the Court of Appeal of Tanzania (‘the CAT’) in Civil Appeal No. 55 of 2017 Yakobo Magoiga Gichere v. Peninah Yusuph (‘Gichere case’).

The apparently unconcealed violation of section 4 of the Ward Tribunals Act, Cap 206 led to Mr Gichere finally seeking the Court of Appeal to quash the proceedings of the Ward Tribunal due to lack of composition requirements. In terms of that provision, he contended that on multiple occasions neither the chairman, nor any person appointed to the Tribunal, presided over the Tribunal’s proceedings.

The CAT rejected Mr Gichere’s request, observing that “With the advent of the principle of overriding objective brought by the Written Laws (Miscellaneous Amendments) (No.3) Act, 2018 which now requires the courts to deal with cases justly, and to have regard to substantive justice; section 45 of the Land Disputes Courts Act should be given more prominence to cut back on over-reliance on procedural technicalities”.

The CAT concluded that “…failure to identify the member who presided over the proceedings of the Ward Tribunal when the Chairman was absent, did not occasion any failure of justice to [Mr Gichere]” and then dismissed the appeal in its entirety.

The Gichere case is interestingly confusing, because the attack on the composition jurisdiction of the referent Ward Tribunal was mounted byMr Gichere, in whose favour the Tribunal ruled.

The ‘oxygen rule’ was also applied in Civil Appeal No. 35 of 2017 Gaspar Peter v. Mtwara Urban Water Supply Authority to rescue an appeal from being struck out because of missing documents, which documents the CAT thought were not necessary for determining the legal issues that were preferred in the appeal.

The sluggish dispensation of substantive justice and the huge backlog of cases (arising due to, in part, the hitherto struck out cases being re-filed upon successful grant of applications for enlargement of time and therefore leading to wastage of time) was the impetus for the introduction of the oxygen principle into Tanzanian law.

The principle, introduced vide the Written Laws (Miscellaneous Amendments) (No.3) Act, 2018, is expressed as the “just, expeditious, proportionate, and affordable resolution of civil disputes”. It requires all courts, advocates and litigants to promote these important objectives.

However, in Civil Appeal No. 66 of 2017 Mondorosi Village Council and 2 Others v. TBL and 4 Others (“Mondorosi case”); Civil Appeal No. 124 of 2017 SGS Societe Generale de Survelleinance SA and Another v. VIP Engineering & Marketing Ltd and Another (“SGS case”); and Civil Application No. 70/18 of 2018 Martin Kumalija & 117 Others v. Iron and Steel Ltd (“Kumalija case”), the CAT turned down requests to invoke the oxygen rule.

In the Mondorosi case, an application letter for copies of the proceedings in the lower court was the only document omitted from the record of appeal.

After taking the view that the oxygen principle “cannot be applied blindly against the mandatory provisions of the procedural law which go the very foundation of the case”, the Court of Appeal held that such a document is “[necessary]…to enable the Court to determine whether the appeal is within the prescribed time” and then struck out the appeal.

The same reason was attributed to the striking out of the SGS case.

Meanwhile, in the Kumalija case, the CAT observed that “While this principle is a vehicle for attainment of substantive justice, it will not help a party to circumvent the mandatory rules of the Court.

We loath to accept [the] prayer because doing so would bless the Respondent’s inaction and render superfluous the rules of the Court that the Respondent thrashed so brazenly”.

The unpredictable application of the oxygen rule in the above cases tells us one thing: It’s not always easy to draw a fine line between the invocation and non-invocation of the rule.

Lilian Kyaruzi ([email protected]) is a legal director in Isidora & Company and an international development enthusiast. The views expressed here do not necessarily reflect those of  Isidora & Company.