For the first time in 2018 Civil Procedure Code recognized the principle of overriding objectives in civil disputes. This legislative amendment made it clear that the overriding objective shall be to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes .
The inclusion of this overriding objective in the Civil Procedure Code is based on the five fundamental principles. This means that, judges and magistrate are duty bound to make decision that uphold the law and serve the broader interests of the society while adhering the five fundamental principles. Below, these five principles will be discussed in more detail. It is our hope that this explanation will increase understanding of how overriding objective principle is used in resolving civil disputes in Tanzania.
This principle requires judges and magistrate to make decisions not favoring one side more than another based to one’s social or economic status; not being biased and not to have personal interest in the case . This means that, judges and magistrate are duty bound to make decision solely on the law and the facts presented in a case, without being influenced by personal biases, prejudices, or external interests.
One may ask how do you measure impartiality of a judge or magistrate? The Court of Appeal has often emphasized and illustrated how to measure impartiality. In the recent case of Joseph Shirima & Tanzania Commercial Bank Plc V. Filbertha Kayombo, Civil Appeal No. 76 of 2022, the court while quoting the decision of the East Africa Court of Justice in Attorney General of Kenya v. Prof Anyang7Nyong'o & 10 Others, EACJ Application No. 5 of 2007 stated that:
“The test applicable is whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the judge was bias. In other words, the court has to envisage what would be the perception of a member of the public who is not only reasonable but also fair minded and informed about all the circumstances of the case .
In demonstrating the importance of the impartiality of judges and magistrates while making decision, the appeals court in the above-mentioned case emphasizes that:
“The requirement of impartiality is implicit and is the hallmark to the independence of the judiciary and public trust. It is on that account that the Code of Conduct and Ethics for Judicial Officers, 2020 (Code of Conduct) which has been promulgated pursuant to section 66 (2) (c) of the Judiciary Administration Act, Cap 237 among other things emphasizes integrity of judicial officers in order to sustain and enhance the public confidence in the Judiciary (Emphasis Added) .
Judges and magistrate are duty bound not to delay dispensation of justice without reasonable ground. Timely means within the time required by statute, court rules or regulations, bearing in mind that each case has to be decided according to its circumstances the judiciary should uphold the principle that justice delayed is justice denied, thus avoid unnecessary adjournments and delays.
The Court of appeal has emphasized on the principle of timely in the case of Zella Adam Abraham & Others vs The Hon. Attorney General & Others the court stated that:
“In our considered opinion, therefore, in any properly functioning or delivering justice system, the overriding vision should be to avoid denying justice through unexplainable delays and/or sacrificing it at the altar of speed and expediency”
Is a just compensation for the aggrieved /victim/ wining side. The principle requires that judges and magistrate to award reasonable compensation to victims of wrong doings committed by other persons, and in accordance with the relevant law enacted.
In Article 107A (2) (c) states that:
“In delivering decisions in matters of civil and criminal matters in accordance with the laws, the court shall observe the following principles, that is to say, to award reasonable compensation to victims of wrong doings committed by other persons, and in accordance with the relevant law enacted by the Parliament”
The role of Judges and magistrate is to promote and enhance dispute resolution among persons involved in the disputes, and not escalate the dispute. The principle of overriding objective is widely appreciated by the parties involved in disputes. It helps them focus on resolving cases fairly and efficiently in court.
This principle encourages making decisions that prioritize finding the truth and settling disputes quickly, rather than getting stuck in complicated legal rules.
In the High court case on Ramadhani Sembejo Mongu Vs Musoma Municipal Council 2022 the court emphasized and stated that:
“The principle of overriding objective is currently well appreciated between parties who are bringing disputes in this court and their learned counsels who are representing them in searching of justice in our courts”
Legal technicalities are the results of interpretation of statute and legal procedure, the Court has to dispense justice without being too much tied with legal technicalities. Article 107A (2) (e) call for courts while exercising their function of dispensing justice to do so without being tied up with technical provisions.
In the case of Githere v Kimungu, Justice Hancox while emphasizing on the principle stated that:
“the relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress and that the Court should not be too far bound and tied by the rules, which are intended as general rules of procedure, as to be compelled to do that which will cause injustice in a particular case.”
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