2. CIVIL PROCEDURE
Readings
I. Text Books
1. D.F. Mulla, Code of Civil Procedure 1908: in 2
volumes. A practitioner’s book to be used carefully
because some of the principles do not apply in
Tanzania.
2. Rao and Chitaley Code of Civil Procedure: in 3
volumes
3. Bullen and Leaks Precedents on Pleadings edited
by I.H. Jacob Suitable for practice – drafting.
4. I.H. Jacob Chitty’s Queens Bench Forms. It gives
method of drafting and interrogating. It covers many
things except Plaints.
5. Lord EVERSHED Atkins Court Forms 33Volumes
very relevant to students.
6. Odgers On Pleadings
Shaukut Mahmood the Code of Civil Procedure 1908
7. Flemming Civil Procedure – America book.
8. Spry Civil Procedure in East Africa
II. Statutes
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3. CIVIL PROCEDURE
Civil Procedure Is a procedure of litigation before the
Courts in civil matters. It does not give any litigant a
right but it enacts a procedure through which a right
can be obtained.
It is a Procedural law unlike Substantive law which
gives a right to a litigant.
Functions of Civil Procedure
It helps resolve the arguments presented from the
parties. Civil Procedure helps in making availability of
right clear through procedural rules.
Procedural law assures you that the rights given by
the substantial law are obtainable.
The Civil Procedure Code of Tanzania is divided into
two parts:
1. The Main Act
2. The Schedules
In Tanzania the Schedules are regarded as part of the
Act – which is a departure from the general rule of
interpretation that, neither schedules nor preambles
are part of the Act.
Construction of the Civil Procedure Code
Since Civil Procedure is adjectival law and a way of
facilitating administration of justice or rather the way
through which a right is obtained, the provisions of
Civil Procedure Code should be given the literal
meaning.
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4. All rules of procedure must be geared at speedy
ending of litigations and at a lower cost. Procedure is
a servant – which should facilitate and not hinder the
administration of justice.
IRON AND STEEL WARES V C.W.MARTY & CO. (1956)
23 3ACA 175, 177.
Procedural statutes must be interpreted liberally. This
position is illustrated in KENDAL V HAMILTON (1878)4
AC 504 at page 525:
“Procedure is but a machinery of the law after all, the
channel and means whereby is administered and
justice reached. It strangely departs from its proper
office when in place of facilitating it is permitted to
obstruct and even extinguish legal rights and thus
made to govern where it ought to subserve.”
Procedural Statutes should not be construed in such a
technical way that will make the court fall to do
substantial justice between the parties.
Preliminaries to Litigation
In any litigation of a civil nature there must be two
things co-existing:
1. Parties 2. A dispute
NB: Not all disputes go to court but only those which
are contested.
The claimant must present a demand note upon the
prospective defendant – in East Africa it is called a
Letter of Demand.
A LETTER OF DEMAND: Is a letter presented to the
prospective defendant by the prospective plaintiff
laying down the claims by the prospective plaintiff
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5. against the prospective defendant and demanding a
remedy at the threat of being sued. There is no a
prescribed form of a letter of demand provided it
provides the necessary information.
Three things in a Letter of Demand:
1. Concise statement of claim - which should
contain particulars sufficient for the prospective
defendant to know what is required by him.
2. That letter should contain a clear and
unambiguous demand that the claim should remain
good.
3. The letter should prescribe a limitation period
normally 14 days within which the claim should be
met or else legal proceedings may be instituted
without any further notice. This is what has made the
letter be referred to as a notice with an intention to
sue.
NB. The Civil Procedure Code does not provide for a
letter of demand. It is provided for in the Advocates’
Remunerations and Taxation of Costs Rules GN 193 of
1924 under Rule 61 it is provided as follows:
“If the Plaintiff in any action has not given the
defendant notice of his intention to sue, and the
defendant pays the amount claimed or found to be
due, at or before the first hearing no advocate’s fee
will be allowed except on the special orders of
the judge."
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6. JURISDICTION
Section 13 of the Civil Procedure Code provides that –
every suit should be instituted in the Court of the
lowest grade competent to try it.
What is Jurisdiction?
Is the power to hear and determine matters which
are litigated before a tribunal. Jurisdiction is a
question of law – a creature of statute e.g. in
Tanzania the High Court is established by the
Constitution and the subordinate courts are
established by the Magistrates Court Act, No. 2 of
1984. Jurisdiction is determined before the beginning
of the proceedings.
Refer the case of Anisminic Case – which is just
persuasive for Tanzania.
TYPES OF JURISDICTION
1. Territorial Jurisdiction
Every court has a limited area is i.e. geographical area
– in which it operates. This is provided by statute
establishing that court and in some cases by the
subsidiary legislation.
In Tanzania there is only one court having jurisdiction
over the whole country, this is the High Court of
Tanzania.
There are two High Courts in the United Republic of
Tanzania. These are – the High Court of the United
Republic of Tanzania and the High Court of Zanzibar.
The two High Courts have concurrent jurisdiction.
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7. Note: The High Court of the United Republic has no
jurisdiction over matters of Zanzibar but over
matters arising from the mainland, except over
matters relating to election. The High Court of
Zanzibar has no jurisdiction over election petitions
arising from the Mainland but for matters of petition
arising from the House of Representatives.
The High Court of the United Republic of Tanzania has
several registries. However the High Court has no
territorial limit.
The High Court Registries Rules give guidance on the
procedure of filing a case in registry in which the case
arises, or the area where the parties reside. There is
an exception to this rule depending on the
circumstances of the case therefore, a case can be
filed in any registry but it will be transferred to its
proper registry.
District Court
Territorial jurisdiction of a District Court is the
boundaries for which the district is established.
Refer the Magistrates’ Courts Act, 1984.
Note: That there are two types of District
Magistrates. Those designated as Civil Magistrates -
who are entitled to hear civil cases. And those not
designated to hear civil cases.
Resident Magistrate’s Courts
Magistrates of the RM’s Courts have a wider
jurisdiction. Their territorial jurisdiction is the region
in which that court is established.
Refer the Magistrates’ Court Act, 1984.
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8. Primary Courts
Territorial jurisdiction of Primary Court is limited to
the district where it is established.
Eg. the Primary Court Manzese is the Primary Court of
Kinondoni at Manzese.
Jurisdiction in respect of Immovable Property
The court in which area the property is situated has
jurisdiction over the property. In claims relating to
immovable property the party can chose between
where the claim arose and the area where the other
party voluntarily resides and/or works for gain.
Primary Court has unlimited jurisdiction over
property held under customary law and in matters of
Islamic Law.
2. Exclusive Jurisdiction
This is jurisdiction vested in a particular court in
exclusion of any other court. This jurisdiction is
normally vested in that court by a statute e.g.
Workmen’s Compensation Ordinance which vests
exclusive original jurisdiction over matters relating to
the Ordinance to the District Court; and the Rent
Restriction Act(REPEALED & LAND ACT CAP 113 IS IN
EXISTANCE) which grants exclusive original
jurisdiction over matters relating to landlord and
tenant to the Housing Tribunal.
3. Concurrent Jurisdiction
Courts are said to exercise concurrent jurisdiction
when they can exercise original jurisdiction over the
same matter.
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9. 4. Pecuniary Jurisdiction
Refer to Magistrates Courts Act, 1984.
All courts except the High Court are courts of limited
jurisdiction.
Note:
-1- The Magistrates Courts Act provides for
unlimited jurisdiction over Islamic & Customary Law
to Primary Courts but the Act does not provide
specifically for exclusive jurisdiction over civil
matters related to Islamic and Customary Law.
-2- Under the MCA all civil proceedings in respect of
Islamic and Customary law must be commenced in
primary court unless the Republic or the President is a
party or the High Court has granted leave to the
parties to otherwise commence the civil
proceedings.
-3- A primary court has no jurisdiction to civil case
unless customary law is a applicable or the
proceedings are for the recovery of civil debts of
interest due to the United Republic of Tanzania or
Local Authorities.
THINGS TO CONSIDER BEFORE INSTITUTION A SUIT.
1. Subject matter for the suit –
Whether movable or immovable.
Movable Property –the suit most be field in the court
within which the subject matter is situated.
Immovable property – where the property is suited.
Refer section 13 of the CPC
Pecuniary jurisdiction.
The place where the defendant resides or works for
gain.
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10. NB: Suit may either follow the defendant or the
cause of action.
A company may be sued or sue where there is head
office or branch or sub-office of the company.
Authorities
1. Francis Mwijage v Boniface Kabalemeza (1968)
HCD n. 341
2. Sheikh Kassim Suleman v Ayubu Kamgila (1968)
HCD n. 79
3. Walumu Jilala v John Mongo (1968) HCD n. 81
4. Edward Kalemela v Muyebe Rwenjege (1968)
HCD n. 80
2. RES JUDICATA
Is a Common Law doctrine included in the Civil
Procedure Code. It has two elements Res meaning
matter and judicata meaning already adjudicated.
Res judicata – bars subsequent litigations involving
matters substantially and directly the same between
the same parties or parties claiming on the same
thing.
-Res Judicata applies only to civil litigations.
The doctrine of Res judicata is based on two well
known maxims of Common law.
1. interest reipubicae est ut sit finis litium i.e. it is in
the public interest that there be an end to litigation.
2. nemo debet bis vexari pro aedem causa i.e. no
one should be in jeopardy twice on the same ground.
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11. Elements of Res Judicata
Refer Section 9 of the CPC
1. There must exist two suits – one finally and
conclusively determined and another pending.
2. These suits must be before courts of competent
jurisdiction.
3. These suits must have been between same
parties – or parties claiming under the same title.
4. The matters that are directly and substantially in
issue between the parties in the pending suit must
have also been directly and substantially in issue in
the previously decided suit.
Effect of the doctrine
A person cannot raise an allegation which has
previously been decided against him by a court of
competent jurisdiction. A Judgement may be assailed
by an appeal where a right of appeal exists, or by
applying to have the judgment set aside where it was
obtained fraudulently or collusively.
See: R.V. Hatchings (1881), 6 QB 300.
3. PARTIES TO SUIT
In every civil litigation there has to be a minimum of
two parties opposing each other in respect of a
dispute. In other words there has to be a lis inter
parte with litis contestatio
The two parties to a suit are PLAINTIFF and
DEFENDANT.
Plaintiff is the party who has a right to relief against
the other party (defendant). The right of relief should
not be a moral right but a legal right.
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12. In simple civil suit there is a single plaintiff and a
single defendant while in a complex suit there are
various parties.
Parties to a Civil Suit
1. Proper Party
Is that party without whom no effective decree can
be issued? His presence is necessary because the
court must either give a relief or a decree against
him. Proper parties are parties who must be before
the court.
2. Necessary Party
Is the one whose presence in court is desirable but
whose absence does not render the decree
ineffective Eg. In nuisance suit over a flow of sewage
– a decree against the tenant can be affected through
the landlord. The tenant is therefore a proper party
because he will bring the landlord - he is therefore
not a necessary party but a proper party and the
landlord the necessary party.
The person who will be compelled to do what is
sought is the necessary party.
JOINDER OF PARTIES
General Principle: The CPC does not compel a party to
combine the parties in pursuance of their rights nor
does it prohibit joinder of the parties.
Joinder of Plaintiffs
Order 1 rule 1 CPC provides – More than one plaintiff
can sue against one or more defendants if the right to
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13. relief claimed by them arises out of the same act or
transaction or a series of acts or transactions and if
separate suits were brought, common questions of
law or fact may arise.
Refer: Yowana Kahere V. Lunjo Estates Ltd [1959] EA
319
Kanani V. Desai Uganda High Court Civil Case No.
469/1953
Points to Consider In Joinder of Plaintiffs
These are just practical and not legal considerations
1. Parties (co-plaintiffs) must have common
interests. Where it is likely to differ in interests it is
advisable that each plaintiff should sue separately.
2. Co-plaintiffs should be represented by the same
advocate to avoid prejudice to parties.
3. Joinder of plaintiffs shortens the conclusion of
the case.
4. It is less expensive to sue jointly than separately
in terms of mobilizing the parties and witnesses.
5. Suing jointly does not require presentation of
third party notice against some of the plaintiffs.
6. Where the defendant is successful against some
of the plaintiffs, there is a real likelihood that the
successful plaintiff will be found to be jointly liable to
the defendant.
Cause of action
Means all the facts which have to be proved by
plaintiff in order to be entitled to a relief or the facts
which are going to be proved in the court in order to
obtain relief.
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14. Joinder of Plaintiffs
The test is whether the plaintiffs are jointly interested
in the same subject matter.
See: BOLTON V SALIM KAMBI [1958] EA 360
The Plaintiff sued under Cap. 360 for damages on his
own behalf as the dependant of his deceased son and
at the same time he sued as the administrator of the
estate of his deceased son. The issue was whether
there was a proper joinder of plaintiffs. It was held
that there was nothing wrong for a person to sue in a
dual capacity.
Joinder of Defendants
Rule 3 of Order 1
It is not necessary that every defendant should be
interested as to all the reliefs claimed in any suit
against him. The rule does not require that all
questions of law or fact must be common to all the
parties. It is sufficient that there is a common
question either of law or of fact.
ILLUSTRATIONS
1. A brought a suit against B, C, D and E for
recovery of certain documents of title and the goods
in suit were his property; that defendant B obtained
from him the documents of title relating thereto by
fraud and made them over to defendant C; that
defendant C wrongfully dealt with them and sold the
goods to defendants D and E; that D and E claimed to
retain the goods and documents of title.
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15. Held: The right to relief against each of the
defendants is based upon the same act, namely, the
alleged fraud of B, and this is so notwithstanding the
fact that there may have been subsequent acts or
transactions in which the different defendants are
individually concerned and which may enable them to
raise distinct defences. If different suits were
instituted, at least one common question of fact
would arise, namely the exact nature of the act
imputed to B, which would have to be investigated,
presumably on the same evidence separately
adduced in several suits.
2. A holder of 100 shares in a company, brought an
action against the company, its several directors and
promoters and executors of a deceased director and
promoter, as against the company’s cancellation of
the allotment to him of his shares and return of his
money by paid him with interest, damages as against
the defendants other than the company and
rectification of the company’s register of members by
the removal of his name therefrom. He alleged that
he had applied for the shares upon the faith of, and
induced by the misrepresentations contained in the
prospectus issued by and with the authority of the
defendants (other than the company and executors)
and of the deceased.
Held: In substance, the shareholder has one
grievance, call it a cause of action or what you like,
and in substance he has one complaint, and all the
persons he sues, have according to him, been guilty
of conduct which gives him a right to relief in respect
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16. of one thing which they have done, namely issuing of
the prospectus.
See also the case of Thomas V. Moore (1918) IKB 555
per Lawrence, J.
‘that the court has discretion as to allowing the
joinder of the defendants and that as there was a
common question of fact to be tried………….the court
would in exercise of that discretion allow the two
defendants to be joined in one action. As a General
Rule: where claims by or against different parties
involve or may involve a common question of fact
being against different parties of sufficient
importance in proportion to the rest of action to
render it desirable that the whole of the matters
should be disposed of at the same time, then it will
allow the joinder of plaintiffs or defendants subject to
its discretion as to how the action should be brought.
It should be noted that joinder of the parties and
causes of action is discretionary in the sense that if
they are joined there is no absolute right to have
them struck out but it is discretionary in the court to
do so.’
The plaintiff can at his option join as parties all or any
of the persons jointly or severally liable on any
contract including parties to bills of exchange,
hundies and promissory notes. See: Order I Rule 6
CPC.
If the Plaintiff is in doubt as to the person from whom
he is to obtain redress, he may join two or more
defendants in order that the question as to which of
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17. the defendants is liable, and to what extent may be
determined as between all parties. See: Order I Rule 7
CPC.
Under Which Circumstances Can You Join the
Defendants?
1. In joining defendants one has to look at the
connection between the defendant and the cause of
action. See: Order I Rule 3 CPC
2. Rights to relief must arise out of the same act or
transaction
3. If separate suits are brought against the
defendants there would be common question(s) of
law.
Authorities
i) PETER COMPANY LIMITED V. MANGALJI &
OTHERS [1964] EA80.81
ii) THE BANK OF INDIA V. AMBAL SHAH &
OTHERS [1965] EA 18
“Although the word ‘same’ must govern the words
‘series of acts or transactions’ it is not necessary that
all defendants should be interested in the relief
claimed in the suit but it is necessary that there must
be a ‘cause of action’ in which all the defendants are
more or less interested although the relief asked
against them may vary:”
Reference should be made to Section 111 of the
Evidence Act, 1967. That, the plaintiff must prove the
case against the defendant or all the defendants on
balance of probability.
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18. REPRESENTATIVE SUITS (GROUP ACTIONS) - Order I
Rule 8 CPC
Where several plaintiffs claim a right to relief against
one defendant or several defendants jointly and such
persons have the same interest in the subject matter
of the suit then a member of them may sue on behalf
of all.
They are actions normally filed against a public or a
particular social group, trade union, local authority or
in declaratory actions against the Government.
The persons suing are known as Representatives.
Before they file the suit they must first obtain a
representation order by filing an Application
(chamber summons) and Notice must be given in
Mass Newspaper to invite objections.
If there is no objection the court will grant the
Representation Order. Judgment given out of a
representative suit shall bind all the parties.
EFFECT OF JOINDER OF DEFENDANTS
Addition of defendant necessitates amendment of
the pleadings in order to incorporate the new
defendant into the action and he must be served with
a copy of the pleadings.
NB: Addition of defendant is subject to the Law of
Limitation.
Order I Rule 12: Where there is a joinder of parties
whether plaintiffs or defendants, some of them will
be allowed to appear, plead and conduct the case on
behalf of the others.
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19. Where there is more than one plaintiff or defendant,
the parties may appoint one of them to proceed on
behalf of the others provided the authorization must
be in writing and signed by the parties. The parties
not appearing in court will be bound by the decision
of the court.
THIRD PARTY PROCEDURE – Order I Rule 14 CPC
A procedure under which a party who is not an
original party to the proceedings is brought to the suit
and thereby made a party to the suit. The third party
is neither a plaintiff nor a defendant.
It is a procedure which enables the court to make
orders in favour of the defendant against the third
party when the defendant is found liable to the
plaintiff.
In effect it is a procedure which enables the court to
entertain two suits simultaneously thereby saving
time and reduce costs of litigation.
This procedure is available to the defendant only.
The relevant provisions for Third party Procedure are
Paras (a), (b) and (c) of rule 15 of Order I of the CPC.
In the Case of Bhamji Laxman limited V. National Sisal
Authority & the NBC. High Court Civil Case No.60 of
1993 (DSM).
Mwaikasu J., stated in the said case that:
“At this juncture let it be pointed out that a Third
Party Notice is for all practical purposes, a form of
a claim by the defendant instituted against the third
party, for the relief’s sought. As the defendant’s claim
against the third party hinge on the nature of the
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20. claim of the plaintiff against the defendant, it is for
a fair and just adjudication of the dispute imperative
that the third party should be supplied with sufficient
facts as to make him know adequately the nature
of the claim as to be in a position to prepare a proper
and adequate defense. The need for such sufficient
facts to enable the third party identify the nature
of the claim comes to the fore when one reads
Rule 17 of Order 1 of the CPC.”
Conditions For Third Party Proceedings
The applicant must establish that he is entitled to
contribution or indemnity.
Refer: Parry V. Carson “In order to bring himself
within the ambit of Order 1 Rule 14 the applicant
must show upon the face of the pleadings and upon
his supporting affidavit that he would be entitled to
indemnity from the third party in respect of the
amount which the plaintiff claims from him in the
event of that claim be successful.”
Refer also: WALUSIMBI V. A.G (U) [1959] EA 223
RMINGHAM & DISTRICT LAND CO. V.
LONDON NORTH WESTERN
RAILWAY CO. (1887) 34 Ch. D.261
WYNE V. TEMPEST [1897] 1Ch.110 at 113
per Chitty, J;
“A right to indemnity may arise under express or
implied contract or by reason of an obligation from
the relation of the parties, such an obligation arises in
equity from the relation of the parties when two
trustees are liable for a breach of trust and one has
applied the trust fund to his own use; in that case the
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21. trustee who has so dis-applied the fund is liable to
indemnify his co-trustee; so where a man has
requested another to hold as a trustee for him shares
upon which there is liability for calls or the like the
trustee is entitled to an indemnity not merely out of
the trust property but by the cestui que trust i.e. the
beneficiary.”
Note: - The right to indemnity is a contractual right
while the right to contribution is an equitable right.
- Joint tortfeasor has a duty to contribution
against his co-tortfeasor.
LIMIT OF THIRD PARTY PROCEDURE
Edward Kirondoke Kaggwa V. Castapereira [1963] EA
213
“Third Party Procedure is limited to claims to
contribution or indemnity only and it cannot be
extended to a right for damages.”
Refer – Insurance Claims.
Overseas Touring Road Services V. Africa Produce
Agency [1962] EA 190, 191.
HOW TO INSTITUTE THIRD PARTY PROCEEDINGS
Order I Rule 14(2) CPC
The defendant desiring to issue a third party notice
must file an application to Court for leave to issue the
third party notice. The application has to be made ex
parte supported by an affidavit. The affidavit will
disclose the grounds upon which the application is
made. It must disclose a cause of action.
- Once there has been service to the Third Party ,
he becomes a party to the proceedings
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22. - The Third Party is liable when the defendant is
liable when the defendant is liable to plaintiff.
- The Third Party can not challenge the plaintiff’s
case but he may defend himself against the
defendant. i.e. pointing out that the defendant is not
entitled to any contribution or indemnity.
APPEARANCE
Three Modes of Appearance
1. Personal Appearance
A party in law is entitled to enter appearance
personally except where it is a corporation.
Corporations can only appear by an advocate.
Iboos Petrol Station V. Blackstone Utility 1955 KLR 20
A Corporation aggregate has got two types of agents.
Agent for ministerial/administrative purposes i.e.
manager to cleaner. Agent for Legal purposes who
must be an advocate.
NB: A Company’s Secretary though a lawyer is not an
agent.
Section 3 of the Advocates Ordinance Cap. 341 define
an advocate as a person whose name appears in the
Roll of Advocates.
TLCs Act, 1971 - TLC advocates cannot act where
their employers are not involved.
Zuberi Gigi V. The Returning Officer 1974 LRT n.52 – A
State Attorney is an advocate only when he is acting
on behalf of the State.
2. By As Advocate Duly Instructed
W. V. Commissioner of Income Tax [1973] EA 187
defines who an advocate is. To be duly instructed an
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23. advocate must be able to answer all the material
questions relating to the suit.
Clients verify this by signing the pleadings.
See: KIWANUKA & CO V. WALUGEMBE [1969] EA 660
BUGERERE COFFEE GROWERS V. SSEBBADUKA
[197O] EA 147
KAFUMA V. KIMBOWA HUILDERS &
CONTACTORS [1974] EA 91
3. By Recognized Agent
A recognized agent is a person who holds power
of attorney.
A power of attorney is a document/instrument
by which a person empowers another person to
represent him or act in his stead for certain purposes.
The person so appointed becomes an Agent of
the Principal.
Order III rule I CPC provides:
“Any appearance, application or act in or to any
court, required or authorized by law to be made or
done by a party in such court, may, except where
otherwise expressly provided by any law for the time
being in force, be made or done by the party in
person or by his recognized agent or by an advocate
duly appointed to act on behalf or, where the
Attorney-General is a party, by a public officer duly
authorized by him in that behalf. Provided that any
such appearance shall, if the court so directs, be
made by the party in person.”
In the case of Hans Nagorsen V.BP Tanzania Ltd.
High Court Civil Case No. 239 of 1987 (DSM Registry)
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24. Hans was authorized only to settle the claim against
the Defendant and not to act as authorized agent in
terms of the provisions of Order III rule I of the CPC.
Instead Hans Nagorsen filed a suit as the Attorney of
the Plaintiff.
Kyando J, held:
“I would readily agree that authorization to settle a
claim is not the same thing as authorization to
appear, apply or do any act in or to any court within
the meaning of those words as used in Order III rule l
of CPC. As I see it, Mr. Nargosen was authorized to
negotiate settlements out of court, of the claim. He
certainly was not, by the above letter, authorized to
institute a suit or suits. The institution of the present
suit by him was done without authority or power
therefore.”
It was also stated in the above case that. “Where a
party is unable to sign the pleading it may be signed
by any person duly authorized by him to sign or to
sue or defend on his behalf.”
In another case, Amirah Ahmed Jaffer V. Abdulrasul
Ahmed JAFFER & 2 Others. High Court Misc. Civil Case
No.48 of 1992 (DSM).
Mapigano J, stated as follows:
“As every lawyer perfectly understands, a power of
attorney is a formal instrument by which one person
empowers another to represent him or act in his
stead for certain purposes. Under Order III rule 2 (a)
of CPC a grantee of such powers is competent to go
to law and make application on behalf of the grantor,
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25. providing that the instrument gives him such
authority, and I am acutely aware that the terms of
such instrument should receive a strict construction
as giving only such authority as it confers expressly or
by necessary implication.”
The trial Judge went on to say:
“By the same token where the principal himself
makes or does an application, appearance or act, his
attorney has no locus.”
INSTITUTION OF SUITS
Section 22 and Order IV of CPC
SUIT – Is a proceeding of a civil nature which has
been commenced by the presentation of a plaint or in
any other manner which has been prescribed by the
rules made under the Civil Procedure Code. Refer –
Mansion House Ltd V. Wilkinson (1945) EACA 98.
The word ‘plaint’ has no statutory interpretation.
It can however be defined to be “a memorandum
presented to court by a claimant setting forth his
reasons of complaint and the relief he is seeking from
the court. So as to be a plaint it has to comply with
the rules of pleadings as provided under Orders VI
and VIII of the Code.”
WHO MAY COMMENCE CIVIL PROCEEDINGS
Any person whose legal right has been infringed upon
has a right to bring a suit against the
infringer/intruder.
Order III Rule 1
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26. Any act which may be done by a party to the
proceedings may be done by his agent or advocate
duly instructed.
As a general rule a plaint must be presented by the
plaintiff himself or by the person duly authorized.
Presentation of the plaint must be physical. The same
must be physically presented to the Officer of the
court authorized, a plaint cannot be presented by
post, telegram etc. See Order IV Rule 1 CPC.
TIME AND PLACE OF PRESENTATION OF THE PLAINT
There is no specific provision for time and place of
presentation of the plaint. Presentation can be made
at any time and place provided it has been presented
to the authorized person.
This saves time as once the party delays to file his
plaint he has got to apply to the Minister for Justice
for extension of time.
WHEN IS A SUIT TAKEN TO BE FILED
A suit is taken to have been filed when the necessary
court fees have been paid. Presentation of the plaint
has to be coupled with the payment of fees i.e. the
plaint must be accompanied by an official receipt
evidencing payment of the necessary fees. As for
payment of the fees by cheque, date of filing is not
the date when the cheque is signed but when it has
been honoured by the bank and therefore although it
is presented any time and place the plaintiff must pay
and get the receipt.
See: RATAN JAYAKISAN SHUKLA V. BAPU HIRAJI
KWILO AIR (V.24) Bomb.25
The judge stated:
26
27. “The Judge can accept a plaint at any hour he chooses
though outside office hours and at any place he
chooses and I see no reason to doubt that the Clerk of
the court who is a duly constituted officer of the
court with power to accept a plaint can accept that
plaint outside office hours and outside the court
building although I don’t, for a moment, the clerk is
bound to accept out of the court hours.”
See also PILLAI V. AMIR SALUB & ORS AIR Vol.1 [1914-
Mad.488]
Note: under the Court Fees Rules, Rule 8 allows the
court to grant leave to sue in forma pauperis. In
SINGH V. SINGH AIR 1937 Oush.452 it was stated that
‘….merely filing an application for leave to sue in
forma pauperis, though it is accompanied by the
plaint, does not amount to the institution of the suit
there cannot be any suit or plaint before the court
until the application to sue in forma pauperis is
granted.
A PLAINT must contain precise and concise statement
of the claim against the defendant, it has to disclose a
cause of action against the defendant, and it has also
to be verified by the plaintiff.
The same applies to all other pleadings.
SUMMONS - ORDER V CPC
Order V Rule 1 – Once a suit has been filed it is the
duty of the court to summon the defendant.
What is a Summons? It is a process (document) of
the court addressed to the defendant informing him
that a suit has been instituted against him and
requiring him to submit to the jurisdiction of the
court either by filing a written statement of defence
27
28. (WSD) within the specified period in the summons or
to enter appearance before the court for the
purposes of receiving the directions of the court on a
date specified in the summons.
PURPOSE OF SUMMONS
The procedure conforms with the rules of natural
justice that no party should be condemned unheard.
It gives the defendant an opportunity to be heard.
TYPES OF SUMMONS
There are two types of summons.
1. Summons to appear
2. Summons to file a Written Statement of Defence
(WSD)
NB: Summons to appear are normally issued by the
High Court. Summons to file WSD is invariably issued
by Subordinate Courts.
Mandatory (Basic) Requirements of a Summons
1. Under Order V Rule 2 a summons must be signed
by a Judge or a Magistrate or any other Officer
appointed by the Chief Justice for such purposes.
2. It must bear the seal of the court.
What is a seal? It is a metal endorsement on a
document. The High Court is the only court in
Tanzania with such a seal. However, rubber stamp
may be a valid seal as the endorsement seal.
See: SATCHU V. A.G [1960] EA 508 and BAWMAN
V NADIOPE [1968] EA 306. There is a rebuttable
presumption that the person signing the summons
has the authority to do so. One cannot inquire as to
the authenticity of the signature at the time of
service.
28
29. 3. A summons must be accompanied by another
document. Order V Rule 3 of CPC - to enable the
defendant know the nature of the suit relating to the
summons. The Plaintiff must produce enough copies
for all the defendants.
APPEARANCE
Appearance by the defendant means the defendant’s
submission to the court and his intention to defend
his case.
EAP & T V. M/S TERRAZO PAVIORS [1973] LTR 58
“Appearance under the Code means attendance in
person or by an advocate in court on the date stated
in the summons which is also the date of hearing.
Once the defendant is present, either in person or by
an advocate when the case is called up that is
sufficient appearance.”
Methods of Serving Summons
The general principle is that service of summons
should be made upon the defendant himself
personally.
The person who does the delivery of the summons is
the Court Process Server or the Court Bailiff (Officer
of the court specifically appointed for purposes of
serving processes of the court). Refer: Order V Rules 9
to 15 CPC.
Exceptions to the general principle:
1. Where the defendant has an agent authorized to
receive summons the summons will be served on the
agent.
2. Where the suit relates to any business or work
and the defendant does not reside within the
29
30. jurisdiction of the court then service may be made on
the Manager of the business.
3. Where the suit relates to immovable property
service of the summons must be made to the agent
with authority to deal with that property.
4. Where the defendant cannot be found, nor has
an agent or authority to receive summons then the
summons may be served on any adult member of the
household except the servant.
Proof of Service of Summons
Order V Rule 16 CPC
The person who receives the summons must
acknowledge receipt by signing on the original
summons which is then returned to the court and he
retains the copy. Where the party refuses to receive
the summons the Process - Server leaves the copy
aside and swears on the affidavit that the bearer has
refused to receive the summons and that a copy
thereof has been left on him. Witnesses’ addresses
may also be mentioned.
Where the defendant or his agent cannot be found
and no adult member of the family leave of the court
is sought to have a copy of the summons affixed at
the place which is known to be the defendant’s last
place of aboard.
Substituted Service (in substitution of personal
service) Order V Rule 20 CPC The rules relating
the substituted service are exception to Rule 12 of
Order V in that they allow service of the summons by
a method which directly does not involve the
defendant. A plaintiff desiring to serve the defendant
with substituted service must get leave of the court.
30
31. He must apply by showing grounds and reasons for
this. Substituted service is done by publication in the
newspapers or by affixing the copy of the summons
at the court - house or at a public place where pubic
notices are given.
Note: Substitution of summons does not include
copy of the plaint. The copy of the plaint will
remain in the registry and the defendant will be free
to go there to collect it.
Other Forms of Service of Summons
Service by Post
Order V Rule 21 CPC
It is secured on application by the plaintiff. The
application is made orally on the mention date. Such
order is granted only upon the court being satisfied
that personal service will entail unreasonable delay.
Such a summons must be by registered mail. See
Order V Rule 30. The defendant will be required to
sign on the original summons as acknowledgement
and return the same to the court. The defendant
may write a letter to the court to acknowledge
receipt of the summons.
Service outside the jurisdiction of the Court but
within Tanzania
Order V Rule 22 CPC
The court which issues a summons to the defendant
who resides outside its jurisdiction sends the original
summons and a copy to the court having jurisdiction
in the area the defendant is known to reside. e.g. The
RM in DSM sends summons and a copy to the RM in
Mbeya.
31
32. Note: This applies only to subordinate courts. A
subordinate court cannot send a summons to the
High Court.
When a summons is received by that court it is served
in the normal way. This court then returns to the
court which issued the summons the original
summons signed by the defendant with a covering
letter stating how the same was served.
Where the defendant resides within the jurisdiction
of Zanzibar the court may either send it by post or
physically by Officer of the court. Alternatively the
court may send it directly to the subordinate court in
Zanzibar.
If the defendant is in Prison the summons will be sent
through the Officer – In -Charge of the Prison
together with the copy of the plaint.
If the defendant is a member of the Armed Forces
then the summons is sent to his Commanding Officer
who has the duty to send the copy to the defendant
and return the original signed by the defendant.
Where the defendant is an employee in the Civil
Service then he may be served through his superior.
Service of Summons to Defendant outside Tanzania
There are two categories of countries.
1. Kenya, Uganda, Malawi and Zambia. These have
specific agreement with Tanzania as to service of civil
processes. Summons to these countries is served by:
i) Post – registered mail where the address of
the defendant is known.
32
33. ii) Directly to the court of that country with
jurisdiction over the place where the defendant
resides. On receipt the court will receive it as if it was
its own summons.
iii) By the plaintiff or his agent sending the
summons personally with permission of the court.
2. Other Countries than those mentioned above.
These falls into two categories: –
1. Countries which Tanzania has agreement
(conventions) as to service
of civil processes.
2. Those countries which Tanzania has no agreement.
Where we have conventions the service is in
accordance with the agreement. Regardless of this
summons may be served by post or through the court
of that country. In Tanzania the Magistrate prepares
the summons, sends it with the plaint to the High
Court, for translation where the country is not an
English speaking country. The Registrar of the High
Court then sends it to the Principal Secretary of the
Ministry of Foreign Affairs which will prepare a
document to be sent to that foreign country.
Service through the foreign court will be as effectual
as our own Local Courts.
PLEADINGS
What is Pleading?
It is a legal term which connotes the presentation of
ones claim (case) before the court.
Generally, pleadings comprise of two things;
33
34. 1. The documents which are presented before the
court in preparation of the suit. These documents lay
bare the material facts of the case.
2. The process of preparing the documents.
Order VI Rule 1 defines pleadings as the plaint, the
written statement of defence and the reply to the
written statement of defence and any other
document produced to court for the purpose of
preparing the suit.
The definition is not exhaustive. Pleadings also
include the process of preparing the documents
which lays bare the facts of the case and it includes
the documents themselves. In other words pleading
is an art of preparing the documents and on the other
hand it is the product of this art.
Functions of Pleadings
Pleadings serve three purposes:
i) Pleadings inform the court about the
nature of the parties’ case by identifying the area of
controversy between the parties.
ii) Pleadings serve the purposes of bringing
the parties to the issue. i.e. they establish litis
contestation
iii) Pleadings put the dispute on record. They
define the area upon which the decision of the court
is sought and they put those areas in court. Once
there is decision the matter becomes res judicata.
34
35. NB: Every party in civil litigation is entitled to know
the nature of the case against
him.
Thorp V. Holdworth (1876) 3 Ch. D. 637,639 (Leading
Case)
“The whole object of pleading is to bring the parties
to an issue and the whole meaning of the rules was to
prevent the issue being enlarged which would
prevent either party from knowing when the cause
came on for trial, what the real point to be discussed
and decided was. In fact, the whole meaning of the
system is to narrow the parties to definite issues and
thereby to diminish expense as delayed especially as
regards the amount of testimony required at the
hearing.”
See also Palmer V. Gudagni [1906] 2Ch. 494,497
Esso Petroleum Co. Ltd V. Southport Corpn. [1939/59]
AC 218,238
“The function of pleading is to give fair notice of the
case which has to be met so that the opposing party
may direct evidence to the issues disclosed by them.”
Joseph Marco V. Pascal Rweyemamu (1977) LRT 59
Zalkha Binti Moh’d Juma Mazige [1970] HCD 132
N.J. Amin Ltd. V.B. Patel Co. Ltd. [1969] HCD 17
Note:
1. Only matters which are in dispute between the
parties should be the subject of decision by the court.
2. The purpose of pleadings is not to set out the
whole case. Pleadings are not evidence. They
comprise only of the allegations to be supported by
evidence.
35
36. 3. Pleadings relate to material facts only and not the
law. Material facts are those which constitute the
cause of action. They constitute a right and the
infringement of that right and the consequence of the
infringement of that right.
4. As a general rule you do not plead particulars.
There are certain exceptions to this rule e.g. in
Negligence [which is a very wide tort], in fraudulent
cases – you must specify the nature of the fraudulent
behaviour, Misrepresentation, Undue influence,
Breach of Trust, Willful default. In all these actions
the party pleading them must give the particulars.
Refer Order VI CPC and the case of Northwestern Salt
Co. Ltd.
Certainty & Particularity in Pleading
The question of certainty was brought up in the case
of William V. Wilcox 112 ER 857,863. The case gives
tactics to be used in pleading.
The CJ said:
“The certainty or particularity of pleading is
directed not to the disclosure of the case of a party
but to informing the court, the jury and the opponent
of the specific proposition for which it contains and a
scarcely important objects that bringing the parties to
issue on a single and certain point avoiding prolixity
and uncertainty which would very probably arise
from stating all the steps which lead up to that point.”
According to the case there are two categories of
facts
1. The material facts 2. The subordinate facts
36
37. Material facts:
These are those facts which lay out the cause of
action.
Subordinate facts:
These are those facts which may properly be called
evidence.
In the process of pleading you are required to plead
the material facts and not the subordinate facts.
See: Gautret V. Egerton 1867 LR 2CP 371, 374
Lumb V. Bealimont 49 LR 772
Millington V. Lorring 43 LT 657
The Nature of Pleading Certain Facts
Under Rule 6 - where a condition precedent is
alleged, the facts disclosing such condition have got
to be specifically pleaded.
Under Rule 8 - where a contract is illegal, a bare
denial will relate to existence of the illegality.
Under Rule 10 - where a state of mind is pleaded it is
enough to allege that state of mind, e.g. malice or
knowledge.
Rule 13 - you do not plead law because law is a
matter of judicial notice.
Subsequent pleading cannot raise new grounds.
A pleading which is not signed is a defective pleading
as it is required by the Rule 14 to be signed by the
party himself or his advocate or where the party is
absent from the jurisdiction of the court or where he
is unable to sign, by a duly authorized person.
The requirement of signatures is a requirement of
law; however the absence of signature is not fatal to
37
38. the proceedings. Therefore, where a pleading is not
signed, the defect may be curable by allowing the
party to sign.
Where a party applies to have a signature on his
pleading, the court will freely grant that application.
Rule 15 - demands that all pleadings have to be
verified.
What is verification?
It is a statement by a pleader showing that he has full
knowledge of what is pleaded and indicates his bona
fide of what he has pleaded.
Verification is a mandatory requirement.
Under Rule 15(2) - the party verifying must verify to
the different paragraphs separately and show which
are verified according to his knowledge, belief and
information.
E.g.
VERIFICATION
I. XY, being the plaintiff in the above named suit do
hereby state that all that is stated in paras 1 to 5
above is there to in the best of my own knowledge,
what is stated in paras 6 and 7 is there to the best of
my belief and what is stated in para 8 is there to the
information supplied to me by the Dean of Students.
DATED at Dar es Salaam this……….day of November,
1988.
……………………………………….
PLAINTIFF
38
39. A plaint which is not signed/ verified is ineffective and
therefore the Officer of the court may reject it.
The object of verification is to fix responsibility on the
party pleading and to prevent false pleadings being
recklessly filed or false allegations recklessly made.
STRICKING OUT OF PLEADINGS
Order VI Rule 16 empowers a court at any of the
proceeding to strike out or amend any matter in the
pleadings which according to it are offensive.
Situations in which striking out of pleadings may be
ordered:-
I. Where the pleadings or certain parts of the
pleadings are unnecessary i.e. for being prolix.
II. When the court is of the opinion that such
pleadings do embarrass the opponent eg. where the
pleadings are so ambiguous that your opponent will
be unable to understand them.
III. Where the court is of the impression that the
pleadings tend to prejudice that opposite party.
IV. Where the court is of the opinion that the
pleadings will tend to delay a fair trial.
NB. The provision of Order VI Rule 3 must be read
together with the provisions of Order VI Rule 16 and
the case of N.J. Amin V. B. Patel & Co. Ltd [1969]
HCD 17.
In the case of Knowles V. Roberts 1883 38 Ch. D 263 it
was observed that courts should not dictate to the
39
40. parties how they should frame their case. However,
this is subject to the limitation that the parties must
not offend against the rules which have been laid
down by the law.
“ Where a party to civil proceedings alleges a
scandalous matter it will be struck out only when it is
irrelevant, however , not every indecent or offensive
is not material is to be considered as scandalous….”
If the scandalous matter is relevant it will not be
struck out.
AMENDMENT OF PLEADINGS
As a general principle courts have discretion to order
amendment of the pleadings at any stage. Order VI
Rule 17 can be employed at any stage before
judgment but it is advisable to effect them earlier
because it may be detrimental to parties.
See the case of Motohov V. Auto Garage Ltd [1971]
HCD 81 per Biron J,
“The making of amendments is not merely a matter
of the power of court but it is a duty so that
substantive justice will be made.”
Although Order VI Rule 17 is a permissive provision
the High Court has interpreted the conditions as
mandatory.
In Tanzania amendments are the duty of the court.
The party seeking amendment is the one to pay the
costs of amendment.
Endevain V. Cohen (1889)43 Ch. D. 187
Clarapede V. Commercial Union Association (1883)
32 WR 262.
40
41. When an inconvenience is suffered by a party can be
assessed in monetary terms and therefore attorned
by the court for the interest of determining it the
court will allow amendment.
Although amendment will freely be granted an
advocate will suffer the costs. A professional
lawyer should not make an application to amend
pleadings.
Principle: The court will allow amendment when the
inconvenience caused can be assessed in monetary
terms to compensate the opposite party.
Shivji V. Pallegrino
The amendments are ordered only for the purposes
of making the existing pleadings clear. They are made
to elaborate the cause of action pleaded.
Amendment will not be awarded where the effect of
granting it will be to introduce a new course of action.
Also an effect of amendment is not to substitute the
cause of action for a new cause of action
Therefore, Order VI rule 16 cannot be used where
through negligence a party has failed to join causes of
action where he could have done so in the beginning.
When an order for amendment is granted the party
who has been allowed to amend must do so within 14
days. If he cannot do so he cannot amend his
pleadings unless he is allowed an extension of time by
the court.
41
42. PLAINT
Order VII CPC.
A plaint is a court document, it should contain a title.
What comprises of the title of a plaint? Refer: Rule 1
(a) (b) & (c).The name of the court, the number of the
case and the names of the parties.
In the body of the plaint the first paragraph should
contain the description of the plaintiff. Where there is
more than one plaintiff, each plaintiff will be
described in his own paragraph. The second
paragraph will contain the description of the
defendant. Where there is more than one defendant,
each will be described in separate paragraph.
The main body of the plaint will constitute the facts
which show the cause of action.
Towards the end of the plaint there should be a
statement to the effect that a claim has been made
and the defendant has refused to accede to it.
There has to be a paragraph towards the end to show
that the court has jurisdiction. This is followed by
prayer for reliefs. See: Rule 2.
Note: that a relief not prayed cannot be granted.
At the end of the prayer of relief there must be a
signature of the plaintiff or any person entitled by
the law. Then comes verification which should be
signed at the left hand corner by an Advocate or
Magistrate.
42
43. Normally there is no specific type of paper to use but
the practice is – pleadings are written in light green
paper which is less than 800 grams.
In England, there is a rule – it must be an A4 paper. In
Tanzania it must be in a foolscap.
General notes on Plaint.
- The names together with the description and the
place of residence or place of business must be set
out in the title part of the plaint.
- If the plaintiff is unable to give the full name of
the defendant it is better to state in the body of plaint
that, in spite of his best endeavor, the plaintiff could
not ascertain the full name of the defendant.
- A corporation must sue or be sued in its full
corporate name.
- Partners may be sued in the firm’s name.
- The capacity in which the plaintiff sues or the
defendant is being sued ordinarily be set out in the
body of the plaint.
- Dual capacity, as where the plaintiff sues in a
representative capacity as also in his own right should
be clearly stated.
- Rule 1 (b) and (c) of Order VII requires that the
place of the plaintiff or the defendant is to be stated
in the plaint. It does not say anything about the place
where the plaintiff or the defendant carries on
business or personally works for gain.
- Place of residence however, can only apply to
person actions. It cannot apply to a firm, corporation
or government.
43
44. Even in personal actions the place where a party
carries on a business or personally works for gain may
be, and often is stated instead of his place of
residence.
In case of registered company, the place where the
registered office of the company is situated or where
any of the branch offices of the company is situated.
The body of the plaint should be divided into
paragraphs and consecutively numbered.
Dates, sums and numbers should be expressed in
figure. See: Order VI Rule 2.
RETURN AND REJECTION OF PLAINT.
RETURN OF PLAINT
A plaint is return to the person who filed it in a wrong
court i.e court with no jurisdiction.
The return is made, either at the presentation of the
plaint or at the time of hearing. Only a judge or
magistrate has power to return a plaint.
It is a judicial act in the sense that the judge or the
magistrate must give reasons for the return and these
must be recorded.
Order VII Rule 10(2) the wrong court has no power to
dismiss the suit. You do not have jurisdiction to
entertain the suit therefore you do not have power to
dismiss the suit.
The proper approach is not to dismiss it but to return
it to the proper court.
This exercise may be at any stage of the suit. It
depends upon the time the court discovers.
44
45. REJECT OF THE PLAINT
Order VII Rule 11
There are three circumstances under which a court
may reject a plaint:
I. Where the plaint does not disclose a cause of
action.
II. Where it appears to the court that the claim is
under-valued. After the court has given power to the
plaintiff to value it properly and the plaintiff has
declined to do so.
III. Where on the face of the plaint the suit appears
to be barred under any law. Eg. The Law of Limitation
Act, Security of Employment, res judicata, res sub
judice, etc.
The flexible approach of courts of Tanzania has
resulted into the amendment of rule 11 by GN
228/1971. Under the amendments the Chief Justice
used his power of making rules under section 81CPC
to add a proviso to rule 11 which states: “Provided
that where the court is of the opinion that, by
allowing an amendment the plaint will disclose a
cause of action, the court may order an amendment
instead of rejecting the plaint.” The implication is that
When the court rejects the plaint it must state that
the reasons for so doing as this order are appellable.
Rejection of a plaint is not a decision of the case on
merits and therefore the doctrine of res judicata will
not apply Rule 13 Order VIII.
A rejection of the plaint under this rule does not
operate by itself as a bar to the plaintiff against filing
45
46. a fresh suit on the same subject matter and of the
same parties.
DOCUMENTS TO BE RELIED UPON BY THE PLAINTIFF
IN A PLAINT
There are two documents:
1. Those which form the basis of the claim.
2. Those which form the evidence to support the
plaintiff’s claim.
Those documents which form the basis of the claim
will be annexed to the plaint but those which form
the evidence need not be annexed to the plaint.
Those in category 1 must be in the parties’ power of
possession.
A list of those documents which are not in the power
of possession of the party and which will be used in
evidence may be annexed to the plaint or listed at the
foot of the plaint.
Consequences of not disclosing the documents
The party proposing to rely on the documents cannot
produce them in court unless granted leave of the
court.
Although those documents will be inadmissible they
may assist in cross-examination. Order Vii Rule 18(2).
The principle of contingent cumulation – requires a
party to plead every remedy/cause of action which is
available however contradictory.
Eg. I never ran him over.
Even if I ran him over, which is denied, I was not
negligent.
Even if the court finds me liable for running him over I
was not negligent.
46
47. Even if I ran him over, and even if I was negligent,
which is denied, the defendant was contributory
negligent.
NB. The contradictions are allowed because they help
frame the issue.
The Principle of Preclusion says that the party cannot
lead evidence on anything which was not pleaded. If
one does not plead it he is precluded from leading
evidence on it.
WRITTEN STATEMENT OF DEFENCE
Written Statement of Defense is a pleading presented
by the defendant intended to traverse the allegations
written on the plaint.
Two occasions under which the defendant may
present the WSD
Once the defendant has been given a summons to
appear he does not have the need to do anything and
he cannot be penalized for not filing WSD.
Under order VIII rule 1 a defendant summoned
to appear may file a WSD to shorten the time of
litigation.
When a summons to file WSD has been issued the
defendant is required to file the WSD on or before
the date indicated.
The day of filing WSD is the day of hearing and
not the day of mention. However the court has
power to extend the period of filing WSD.
Contents of WSD
Order VIII rule 2. WSD should contain all facts which
will show that the plaintiff’s suit is not maintainable.
47
48. These may be questions of fact eg failure of
consideration or questions of law. Eg res judicata,
limitation, illegality etc.
General rule
Each and every allegation in the plaint has got to be
traversed/opposed.
Allegations denied or admitted must be specifically
stated in the WSD.
Each paragraph of the plaint should be denied
separately. Several words are used in traversing e.g.
para (i) and (ii) are admitted. They are normally the
addresses. You cannot deny the defendant’s address
but yours. Eg incases where you are not using the
address of the advocate.
Para (iii) is denied. Even if there was a contract, which
is denied, there was a failure of consideration.
Para (iv) is denied. Even if there was a contract and
consideration, which is denied, the defendant asserts
that the contractual amounts were paid.
NB The technique of confession and avoidance is used
in writing the WSD in which the defendant
Admits the existence of some facts but at the
same time avoids the legal consequences of the
existence of those facts.
Eg X admits the existence of a contract but there
were no vegetables, which is denied, the defendant
asserts that the vegetables were rotten and therefore
unfit for human consumption. Under Order VII rule 3
general denials are bad in law.
48
49. (x) Save as hereunder expressly admitted the
defendant denies each and every facts contained in
the plaint as if the same were set fort seriatim and
specifically traversed D paragraph help against the
presumption that whatever is not specifically and
denied is admitted.
Note: Although as a general rule a general denial is
not admissible, it is acceptable where there has been
already specific denial. Where there is not specific
denial, a general denial is inadmissible, and the
defendant will be taken to have admitted the rest.
Refer Warner V. Sampson [1959] All ER 120 at 123
per Denning; LJ
“It is used [general denial] in nearly every defence
that goes out from the temple [inns of court where
barristers operate from, in England] it comes at the
end the pleader has – early gone through……in the
statement of claim and dealt with them. Some he has
admitted, others he has denied. Whenever knows
there is a serious contest he takes no instructions on
a particular allegation he covers it by a general denial
of this kind so that he can, if need be, put the plaintiff
In this cross-suit the defendant will be required to
present a WSD into sections:
The Defence. 2. A statement of claim against the
plaintiff.
Although the plaintiff may not exercise his right to
reply he is duty bound to present a WSD to the
counter-claim.
Rule 12 provides – where a defendant has set up a
counter-claim the court may order separate trials
when it is in the opinion of the court that the
49
50. plaintiff’s claim and the defendant’s counter-claim
cannot be heard simultaneously.
Note: In counter-claim it is mandatory that the
plaintiff should file his reply.
In Set-Off the plaintiff has an option of replying
or not.
When is a Suit Ready for Hearing?
This will depend on the case.
When there is no counter-claim or set-off the
pleadings are closed and the suit is deemed ready for
hearing once the plaintiff files a reply to the WSD.
When there is a set-off or counter-claim and the
plaintiff has in his reply raised a defence to such a set-
off or counter-claim pleadings will be deemed to be
closed and the suit ready for hearing after the
defendant has filed his reply to the reply.
Where he has already replied, rule 13 provides that,
no further pleading can be presented to the court
subsequent to the reply of the WSD other than a
defence to set-off or counter-claim without the leave
of the court.
Consequences of Failure to present a WSD or a
Defence to Counter-claim
There are different consequences depending on
different things:
The court may pronounce judgment against the
person who was supposed to present the defence. In
a case where the Summons was for appearing and he
has been given an order for appearing.
50
51. Where the summons was to file a WSD there are 2
consequences:
Where the claim is for a liquidated amount of money
which does not exceed T.Sh.1,000/= the plaintiff may
make an application to the court in writing for leave
to prove his case ex-parte by affidavit or by oral
evidence.
Where the amount exceeds 1,000/= and in any other
case the court may pronounce judgment after ex-
parte proof.
General Defences available in drafting a WSD
1. Accord & Satisfaction – in law of contract.
2. Acquiescence.
3. Conditions Precedent.
4. Custom and Usage.
5. Capacity.
6. Estoppel
7. Fraud
8. Illegality
9. Jurisdiction
10. Limitation
11. Laches [lashes] i.e. equitable limitation.
12. Misjoinder – of parties & of causes of action.
13. Non-joinder of parties & causes of action
14. Mistake
15. Notice –insuffiency of Notice
16. Payment
17. Penalty as opposed to damages
Defence under protest
18. Release
19. Rescission
51
52. 20. Remoteness of Damages
21. Res Judicata
22. Res Sub judice
23. Set-Off
24. Tender
25. Undue Influence
26. Duress
27. Lack of Special Damages
28. Waiver
29. Want of Cause of Action.
NON-APPEARANCE
Read the provisions of Order IX, the case of EAP
&BTV. Terrazo, and Orders III and V.
The consequences of non-appearance of a party
differ depending on who does not appear.
Non-Appearance of the Defendant
When summons was not served and failure to serve
the summons was due to mistake of the plaintiff
either as a result of failing to pay court fees or his
failure to pay postal charges the suit is to be
dismissed. This is because there cannot be a suit
without parties.
Order IX Rule 2 – The court has power to dismiss the
suit on the first day of hearing. If by coincidence the
defendant is in court the court will not dismiss the
suit.
Where neither the plaintiff nor the defendant is in
court the court will dismiss the case. Order IX Rule 3.
52
53. The summons is returned unserved and the
defendant does not appear, it is the duty of the
plaintiff to apply for re-service. This application has to
be made within 3 months. If not within this period,
the court will dismiss the suit per Order IX Rule 5.
Exceptions
A suit may not be dismissed under rule 5 where the
plaintiff shows the court that the defendant in proof
of it at the trial, sometimes the pleader denies,
sometimes he does not admit each and every
allegation but whatever phrase is used it all comes
back to the same thing. The allegation has to be
regarded as if were specifically set out and traversed
seriatim. In other words it is traversed no more no
less. The effect of the traverse has been known to
generations of pleaders. It casts upon the plaintiff the
burden of proving the allegations denied. So this
general denial does no more than put the plaintiff
into proof.”
SET OFFS
In law of banking – one account can be used to set off
a debt in another account.
Generally: Is a mutual extinction of mutual debts in
which two people (defendant & plaintiff) stand
reciprocally as creditors and debtors.
Under the doctrine of Set Off: A defendant who
stands in a position of creditor to the plaintiff, has a
right to raise a defence of set off against the plaintiff.
“In case he is found liable to the plaintiff then the
sums that will be found owing to him from the
53
54. plaintiff should be set off against his liability to the
plaintiff.”
“What is owed by the plaintiff is cancelled by what
the plaintiff owes him.” In the final analysis he will be
required to pay the balance.
2 Types of Set Off
Legal Set Off & Equitable Set Off
A Legal Set Off exists when there is a liquidated sum
of money and the plaintiff must owe the defendant
the liquidated sum of money.
An Equitable Set Off – The amount owing is not
liquidated. It will be settled by adjudication.
The Whole Doctrine In Essence
It is found under Order VIII rule 6. It is a doctrine
under which here is an extinction of debts of which 2
persons are reciprocally debtors to one another.
The two debts are extinguished by creditor of which
these two people are creditors reciprocally to one
another.
Under the doctrine – a defendant in a suit for
recovery of money, who holds a position of creditor
against a plaintiff, may claim a set off against the
plaintiff.
5 Conditions to be met before Order VIII rule 6 comes
into operation:
The suit must be for recovery of money.
The defendant has to have the monetary claim
against the plaintiff and this must be
recoverable claim. It it is a debt it must be due.
54
55. The defendant’s claim must be for a liquidated sum of
money.
Both parties must be in the same capacity – i.e.
Where the plaintiff is suing in a representative
capacity and owes the defendant a certain amount of
money in his personal capacity, that money cannot be
set off because the liability of the plaintiff to the
defendant is not in a representative capacity. The
defendant did not lend the money to the plaintiff’s
child.
The sums sought to be set off should not exceed the
pecuniary limit of the court’s jurisdiction.
Note the following:
1. A set off in its nature is an independent action.
But for avoidance of multiplicity of suits there should
not be two suits.
2. Order VIII rule 6 is a legal set off. CPC does not
have provisions for equitable se off. However, Order
VIII does not take away the right to an equitable set
off. Where it can be shown that a defendant will
have a right to set off independently of the Code the
Order VIII will not be used to prevent him from
exercising that equitable right.
Difference between Legal and Equitable Set Off:
1. A court is bound to entertain and adjudicate
upon a legal set off once it is pleaded. However,
where an equitable set off is pleaded the court has a
discretion to entertain it and adjudicate on it or order
that it be brought in separate suit.
55
56. NB: Whereas a legal set off is a matter of right an
equitable set off is not a right but discretional.
2. The amount recoverable. In a legal set off the
amount must be liquidated. One the other hand in an
equitable set off the amount is not ascertained.
3. In a legal set off it is important that the crossed
demand should have arisen in the same transaction
while in the equitable set off the cross-demand need
not have arisen in the same transaction.
Note: 1. Section 2(2) of the Judicature and
Application of Laws Act (JALA) provides for the
application of Equity in TZ.
2. Section 95 of the CPC provides for the
inherent powers of the Court.
What Happens When There is a Set-Off?
According to Rule 6 of order VIII a decree may be
passed against the plaintiff in respect of a set-off.
Where there is a set-off the WSD is deemed to be a
plaint to the extent of set-ff. In the reply to the WSD
the defendant will be required to raise defences
against the set-off.
A COUNTER-CLAIM – Order VIII Rule 9
It is in its nature different from set-off.
Whereas rule 6 relates to a claim for a liquidated
amount of money, a Counter-Claim is general. It
relates to any suit.
Under rule 9(1) A defendant may raise a counter-
claim against the plaintiff when any cause of action
vests in the defendant at the time of presentation of
the WSD.
56
57. What should be established is: the fact that one of
the parties is the defendant and the other is the
plaintiff. Also one has got to establish that they
occupy the same position – personal or
representative capacity.
Distinction Between a Set-Off and a Counter-Claim
Set-off in its nature is a statutory defence. The statute
allows raising a defence by set-off.
A counter-claim in its nature a cross-suit – because it
embraces any cause of action which can be legally
sustained. In that cross-suit the defendant becomes
the plaintiff and the original plaintiff becomes the
defendant.
Is actively avoiding service of the summons or he has
failed after exercising all efforts to discover the
residence of the defendant or for any other sufficient
cause.
The sufficient cause should be ejusdem generis to
other things under rule 5.
Note:
Dismissal in all instances i.e. rules
1, 2, 3, & 5 cannot be res judicata because – no
evidence & no hearing.
Where the defendant has been served and he is not
in court
If the suit is in the High Court and summons is proved
to have been properly served the plaintiff will be
allowed to prove his case ex parte.
Ex parte hearing does not mean that the plaintiff
must win. He must give sufficient evidence to
convince the court.
57
58. Where the defendant is in court and the plaintiff has
been allowed to proceed ex parte, the defendant will
not be allowed to produce any evidence or cross-
examine.
Ex-parte proof may be made in two ways:-
1. By way of affidavit by the plaintiff.
2. By way of oral evidence by the plaintiff.
You cannot proceed ex parte unless granted leave by
the court. On the day of hearing the plaintiff prays
the matter to be heard in chamber by the judge so
that he can get leave of the court.
The Procedure in the RM’s and DM’s Court
(Subordinate Courts)
- Where summons issued was for producing WSD the
court may proceed ex parte.
- Where summons issued was summons to appear
the court may enter judgment.
Ex parte procedure is penal; it should be exercised
where the defendant refuses intentionally to appear
or to submit to the jurisdiction of the court.
It must be proved that the summons was duly served.
Summons to appear is a summons for direction both
in the High Court and in the Subordinate Courts.
Summons for disposal of the suit constitute the first
day of hearing and it requires no proof like in the High
Court where there should be ex parte proof.
Where the court is not sure whether the summons
was duly served it will issue a fresh summons.
Since rule 6 to Order IX is intended to punish a
disobedient defendant, it can be shown although the
summons was duly served the defendant has not
58
59. failed to appear because of his abstinence the court
will not proceed further. Order IX rule 6(1) O where it
is proved that the summons was not served to give
defendant sufficient time to appear the court will fix
another time and adjourn the hearing. If it was the
plaintiff’s fault he will be ordered to pay the costs of
adjournment.
Where the Defendant appears after the order for
adjournment
Order IX rule 7 – where the court has ordered ex
parte proof under rule 6 but proof is not taken on
that day then the defendant may, on the day to which
the hearing has been ordered adjourned, make
application under rule 7 to make an order to set aside
the ex parte orders. The application must be by way
of a chamber summons supported by an affidavit.
In the application the defendant must show his
sufficient causes for his non-appearance. The court
has discretion to set a side the ex-parte judgment.
The court must be satisfied that the non-appearance
was due to sufficient reasons.
Where the Plaintiff and the Defendant do not
Appear
The Court shall dismiss the plaintiff’s claim and if the
defendant has a counter-claim the court will proceed
ex parte in respect of that counter-claim.
Where the defendant has not admitted part of the
plaintiff’s claim but admits part of it.
Order IX rule 8 – the dismissal under this rule is res
judicata.
59
60. Order IX rule 9 – the plaintiff may apply to the court
which dismissed the suit for an order setting aside the
ex parte decree passed against him. This is by way of
chamber summons supported by an affidavit with
sufficient grounds to persuade the court to set aside
the dismissal order.
NB: An order to set aside the dismissal under order
IX rule 8 cannot be made unless the defendant
has been notified.
An order to set aside the dismissal order cannot
be made ex parte.
Difference between ex parte judgment and ex parte
decree.
An ex parte decree is a decree which arises out of
judgment which was entered against the defendant
either after failing to file WSD or for his non-
appearance on the first day of hearing.
Where the defendant appears on the first day of
hearing but does not appear on the day of judgment
he cannot be said to be given an ex parte judgment
but an ex parte decree.
Remedy for ex parte judgment
Refer Order IX rule 13.
Sufficient Cause depends on the material
circumstances of the case e.g. ignorance of
procedure,
Illness of the party or his advocate, Lack of transport
etc.
60
61. T.M. Sanga V. Sadrudin G. Alibhai & Ors [1977] LRT
51
It points out circumstances under which the rule (rule
13) can be applied.
1. Uncertainty of the service of the summons is
sufficient reason for allowing an application to set
aside an ex parte judgment and decree thereof.
2. It is important to consider whether there are any
triable issues in case the judgement is set aside.
When the court sets aside the ex parte judgment it
sets a date for proceeding with the suit and hearing
will continue as if no judgment had been entered.
FIRST HEARING OF THE CASE
The court is required to examine the parties to
ascertain whether the parties are really in
controversy (litis contestation) and if they are what
the real points of controversy between them.
This examination as also the purpose of framing the
issues. Order X rule 1 makes it mandatory for the
court to examine the parties. Under rule 3 of Order X
the examination must be reduced in writing and form
part of the record. Compare with the Pre-trial
Conferences in the US system.
INTERROGATORY – Order XI
Every party has a right to know the nature of its
opponent’s case.
There are several ways through which the party will
know the nature of his opponent’s case. E.g
.1. Pleadings. 2. Interrogatories. 3. Discovery of
Documents. 4. Inspection of Documents.
61
62. What are Interrogatories?
Interrogation is the act of questioning.
Interrogatories are, therefore, written questions put
by a party to civil proceedings to his opponent which
must be answered by his opponent by his filing an
affidavit in answer to the interrogatories. These
interrogatories are normally put to the opponent in
preparation for the hearing of the suit.
Functions of Interrogatories
1. They enable the party presenting them to know
the nature of the opponent’s case. They enable the
opponent to prepare his case – e.g. evidence etc.
2. They shorten the proceedings in that the
opponent may admit certain facts and once these
facts are admitted no need of evidence. The answers
to the interrogatories help to determine which
evidence is necessary and which is not.
3. They lessen expenses of litigation.
Marriot V. Chamberlain (1868) 17 QBD 154
“Every party to civil proceedings is entitled to know
the nature of his opponent’s case so that he may
know before hand what case he has to meet at the
hearing. However such a party is not entitled to know
facts which constitute exclusively the evidence of his
opponent’s case since an unscrupulous party may
tamper with his opponent’s evidence once he knows
of it or he may manufacture evidence to oppose it.”
62
63. Interrogatories which should not be admitted at all:
A party is not entitled to administer interrogatories
for obtaining a discovery of facts which constitute the
exclusive evidence of his adversary’s case or title.
A party is not entitled to interrogate his opponent on
confidential communication between his opponent
and his legal adviser.
Those interrogatories which are injurious to the
public interest or security e.g. the defendant as a
military officer to be inquired on military matters.
GENERAL FORM OF INTERROGATORY
TITLE
Interrogatories on behalf of the above named Plaintiff
(Defendant) for the examination of the above named
Defendants (Plaintiffs) pursuant to the order herein
dated……day of ……19….
Did you……………………
Were you………………….
Was it……………………..
If not weren’t you…………
(Set out the interrogatories in the form of concise
questions, each interrogatory to be set out in a
separate paragraph and numbered consecutively.)
The defendant (plaintiff) AB is requested to answer
the interrogatories numbered…….etc.
Served this ……day of ……19….
………………………
…………………
63
64. Advocate for
the Plaintiff (Defendant)
To:
The above named Defendant (Plaintiff)
NB:1. The affidavit should be within 10 days and it is
called affidavit for answer of interrogatories.
2. Failure to answer the interrogatories invite
penalty. If the party refuses to answer
them he shall be penalized in costs or in some
instances he may have his case struck out. This
is governed by Order XI rule 18.
Answer to interrogatory
It is a matter of law.
The party who is supposed to answer a question on
interrogatory is supposed to file an affidavit under
Order XI rule 7.
The affidavit should be made to make the questions
answered precisely and correctly.
No exception can be taken in the affidavit. The party
should not refuse to answer any question. However,
any just exception/objection may be raised in the
affidavit e.g. the grounds that it is fishing
interrogatory i.e. when its sole purpose is to discover
the evidence of the opponent.
Where the party interrogating considers the answers
inadequate he may demand full or further answers
under order XI rule 9 by application to the court.
64
65. DISCOVERY AND INSPECTION
Whereas interrogatories may be termed as a
discovery of facts there is a procedure of discovering
documents.
Discovery is governed by rule 10 Order XI.
Any party may without affidavit applies to court by
order to his opponent discover on oath all the
documents which are in his power or possession and
which he is going to rely upon his case. Therefore
discovery is a process under which a party to civil
proceedings discloses all the documents he is going to
rely upon in his case.
Discovery is a disclosure of documents made at the
instance of the opposite party.
Refer Section 64 of the Evidence Act
NB: Compare and Contrast orders XI rule 1, XI rule 10
and XLIII rule 2.
2 Ways of Discovery of Documents
Annexing them to the pleadings
Mentioning them in the pleadings – either in the main
body of the pleadings or in the list of documents to
be relied on. Order VII rule 14.
Categories of Discovery
Voluntary Discovery – the party discloses the
documents he has and he uses them without the
leave of the court.
Compelled discovery – is made at the instance of the
party and under the order of the court.
65
66. When the order for discovery is made, the party is
supposed to file an affidavit for documents.
Once the affidavit is filed two things may occur:-
The court at any stage of the suit may order the party
who made the discovery to produce certain
documents before the court.
The opposite party may alternatively at any time of
the proceedings give notice to the party who made
the discovery for the production of the documents for
purposes of inspection either by himself or by his
advocate. It is the duty of the party who holds such
documents to grant the party the right of inspect the
documents. The right should be granted within ten
days of the notice.
3 grounds upon which the party may resist discovery
Documents containing exclusive evidence of title.
Documents which contain privileged communication.
The discovery is irrelevant i.e. it does not go into
answering any material fact in the suit.
ADMISSIONS
ORDER XII
There are two types of admissions under the Civil
Procedure Code
Admissions made at the instance of the party
admitting himself.
Those admissions which are made at the instance of
the opposite party.
66
67. As a General Rule
A party is not prohibited from admitting certain facts.
Normally this is done where the party is sure that
contesting the facts will be of no benefit to him but
delay fair conclusion of the suit and imposes on him
more expenses.
When you admit you pay less costs because you don’t
put anybody into trouble.
Rule 1 Order XII enables the party to the proceedings
admit the truth of the part of the opponent’s case or
the whole of it. i.e. Voluntary Admission.
Rule 2 of the same Order provides that at any stage of
the proceedings a party may require his opponent to
admit certain facts or document by A DOCUMENT TO
ADMIT facts or document. Hence there is a admission
of facts and admission of documents.
Where a party refuses to admit any of the facts he
will bear the costs of proving them since evidence will
have to be lead by calling of witnesses etc.
Note:
1. Any admission made is for the purposes of the suit
only and not for any other purposes or persons.
2. There has to be filed a notice to admit in the
following format;
TITLE
NOTICE TO ADMIT FACTS
(Under Order XII Rule 2 of the Civil Procedure Code)
TAKE NOTICE that you are required to admit the
following facts for the purposes of the above-named
suit only.
67
68. 1. That you lived with the petitioner as husband and
wife for 11 years.
2. That in that period you were blessed by 3 issues.
3. That you subsequently married Y under the
Christian rites.
4. That before marrying Y you had jointly with the
petitioner acquired the following assets…………..
TAKE NOTICE that you are required to admit the said
facts within six days after the service of this notice
and in default whereof you shall bear the costs of
proving them.
Dated at………this.....day of ……….1988
……………………………………
ADVOCATE FOR
PETITIONER
TO AB
C/O XY ADVOCATE
DSM
DRAWN BY
CD ADVOCATES
DSM
Section 64 of the EVIDENCE ACT requires primary
evidence to be given.
Under section 68 of the Evidence Act secondary
evidence may be given. If the document is in the
possession of the opponent, a notice must be served
on that party to produce the document within 10
days. Failure to produce the document will make the
party to produce secondary evidence.
68
69. i.e. “Admit or I’ll produce evidence to prove them
and if you don’t I’ll have notice to produce them”.
Note:
1. O.XI rule 13 is used when you want to inspect the
documents.
2. Section 68 is used when you want to use the
documents as evidence but they are in the possession
of your opponent. If he refuses to produce them then
you will use secondary evidence.
Production and Impounding of Documents
Order XIII of Civil Procedure Code
All parties have the duty to produce all documents
they are going to rely upon as evidence and which are
in their possession or power, at the first hearing of
the suit. This is a requirement of law under Rule 1
Order XIII.
I such documents are not produced at the first
hearing then the Court may grant leave for its
production.
Rule 2 prevents production of the documents at a
later stage – which were supposed to be produced at
the first hearing.
Note: The impoundment of documents does not
mean admissibility of the documents
The Court is merely concerned about the
preservation of those documents.
They are not admitted at that stage as exhibit
but as a depository.
Order XIII empowers the court at any stage of the
proceedings to reject any evidence it considers
irrelevant or admissible.
69
70. Upon admitting the documents as part of the
evidence the court will have to endorse on the
documents.
Those documents which have been admitted as
evidence must be returned to the person who
produced them in court at the conclusion of the case
or if there is an appeal at the conclusion of the
appeal.
Settlement and Determination of Issues at the First
Hearing
Order XIV
The order relates to framing of issues.
Framing of the issues is done in the presence of the
parties and at the first hearing.
There are three Types of Issues.
1. Issues of fact.
2. Issues of law.
3. Issues of mixed fact and law.
WHAT ARE ISSUES?
There are several definitions but the best one is given
by Order XIV rule 1(2).
Under this rule issues are material propositions of
either fact or law or mixed fact and law which must
be alleged by the plaintiff in order for him to have a
right to sue and which has to be denied by the
defendant in order to constitute his defence.
Issues arise-from the allegation by the plaintiff and
denials by the defendant, they constitute the points
of dispute between the parties.
THEREFORE Issues arise from the pleadings.
70
71. Whatever alleged/denied constitute an issue.
SUPPLEMENTARY SOURCES
Issues also may arise from the documents submitted
by the parties to the court or by affidavit submitted
by the party to the court.
Also issues may arise from the oral examination at
the first hearing.
WHO HAS THE DUTY TO FRAME ISSUES?
Order XIV rule 1 provides that. It is the duty of the
court to frame the issues at the first hearing.
The duty is a mandatory duty. The court cannot shun
away from this duty.
There are instances where parties will help the court
in framing the issues. Where the parties are very
clear as to what the real matter is between them they
can help the court frame the issues. In most cases
where the parties are represented by advocates the
normal practice is for the parties to assist the court in
framing the issues. The court has discretion to accept
or reject them.
WHY FRAME ISSUES?
Framing the issues has a very important bearing.
Whether the outcome will be just or unjust it will
depend on the framed issues.
1. It is the issues that direct the parties as to how they
are going to adduce their evidence and not the
pleadings. The issues determine the relevance of the
evidence.
71
72. 2. It is the issues which fix the case. A court cannot
refuse to make decision on an issue which has been
framed. The issues are framed to direct the court to
the nature of decision to be made even where the
issue though framed but not pleaded.
Odd Jobs V. Mubia [1970] EA 476.
You can have an issue framed and not pleaded but
the court must decide on the issue.
“On the point of that the court has no jurisdiction to
decree on an issue nor been pleaded. The attitude
adopted by this court is not as strict as appears to be
as it appears to be in India. In East Africa, the position
is that the Court may allow evidence to be called and
may base its decision on unpleaded issue if it appears
from the course followed at the trail that the
unpleaded issue has in fact been left for the court for
decision.”
The decision is supported by the case of NKALUBO V.
KIBIRIGE [1973] EA 103.
At page 105. The same issue arose and the Court of
Appeal reiterated the case of Odd Jobs.
As per the court
“While the general rule is that relief not founded
on pleadings will not be given, a court may allow
evidence to be called and may base its decision on
an unpleaded issue if it appears from the course
followed at the trial that the unpleaded issue has in
fact been left for the court for decision.”
The case introduces the proviso that the freedom of
the court to allow evidence to be adduced on an issue
not pleaded and to base its decision on such issue is
72
73. not extensive to an extent of allowing the court to
make a decision on a completely new course of action
which was not pleaded.
See also
1. Mgonja V. Kihiyo
2. Gondij V. Caspar Air Charter Ltd. (1956) 23 EACA
139; 140.
3. Blay V. Pollard & Morris [1930] All ER (Rep)
610,612.
4. Joseph Marco V. Pascal Rweyemamu [1977] LRT 59
In the case of Blay V. Pollard it was said “Cases must
be decided on the issues on record and if it is desired
they must be placed on the record by amendment.
In the present case, the issue on which the judge
decided was raised by himself without amending the
pleadings in my opinion he was not entitled to take
such a cause.”
In another case which was decided in 1932 by the
House of Lords in Bell V. Lever Bros [1932] AC 161 at
216. In this case the court ruled that a trial court may,
with the consent of the parties, frame and decide on
an issue which does not appear in the pleadings.
FAILURE TO FRAME ISSUES
Failure to frame issues is a procedural irregularity
which may not be fatal to the proceedings. It will be
fatal to the proceedings when an appellate court
forms an expression that the failure has occasioned
injustices to one of the parties.
CONSEQUENCE OF FAILURE TO FRAME ISSUES
73
74. Norman V. Overseas Motor Transport [1959] EA 131.
In this case the trial court failed to frame issues. On
appeal the issue was whether the failure could be
fatal to the proceedings. The Court stated as follows:
“The failure to frame issues is an irregularity, the
question would appear to be whether
notwithstanding the failure to frame issues the
parties at the trail knew what the real question
between them was, that the evidence on the
question had been taken and the court duly
considered it.”
According to the case – where the court has
failed/omitted to frame issues, it is apparent that the
parties knew what the dispute between them was
and had an opportunity to give evidence, which has
been taken into account by the court to make its
decision. Such failure or omission will not be fatal to
the proceedings. It is fatal only to the proceedings
only when it is apparent on the face of the record
that the parties did not know what the real issue was
between them.
Justification
The framing of issues like practice of pleading is
intended to avoid taking of the parties by surprise,
and also, intended to assist the court in
understanding the case.
THE ART OF FRAMING THE ISSUES
1. The first rule of the thumb – where there are
both issues of fact and law in the same suit and the
determination of the issues of law may dispose of the
suit then the court must frame those issues first.
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75. There is no use calling evidence where the law is
clear. The issues of law will be preliminary issues
because their determination will dispose of the suit.
This quickens the process of litigation.
Issues of law are a matter of Judicial Notice. Eg
Limitation, wrong parties, jurisdiction, res judicata,
capacity etc.
2. Framing of the issues of fact comes next.
Note that:- All issues whether of law or fact have got
to be framed in the affirmative. E.g. in issues of law –
whether the suit is time barred, whether the suit is
not time barred. In issues of fact – whether X is Y’s
legitimate son / whether X is Y’s illegitimate son.
3. Issues are not framed in argumentative way.
Issues must be concise, precise and clear questions of
mostly not more than 8 words.
AFTER FRAMING THE ISSUES
Order XIV rule 6 – where the issues are between the
parties and the parties submit them to the Court with
an agreement in writing that they will be bound by
the decision of the court on them the court will have
3 things to do:
1. To ascertain whether the agreement was duly
executed by the parties.
2. To inquire as to whether the parties who have
executed the agreement have substantial interest in
the outcome of the case.
3. To see if the issues framed are fit for trial.
If the court is satisfied that the three things
have been complied with then it will
proceed with the trail of the issues only.
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76. The court has got power to amend the issues at any
time of the trail but it has to be before judgment.
Certain issues can be added by the court in the course
of hearing.
ORDER XV
The suit is now ready for hearing.
After framing of the issues the court may however
find no case to hear and the case will come to an end.
Order XV rule 1: The court is empowered to
pronounce judgment at the first hearing when it is of
the impression that the parties are in no dispute on
the points of fact or points of law. That impression is
formed by the court looking at the pleadings.
ABSENCE OF DISPUTE
Exists in two ways:
1. Where the court establishes that there is no litis
contestatio (contested dispute).
2. Where there are admissions either in the
pleadings or as a result of a notice to admit issued
under the provisions of Order XII.
In both situations the court is empowered to
pronounce judgment and this judgment is a judgment
on merit since it has gone in the substance of the suit.
In a situation where there are more than two parties
Order XV rule 2 will come into play. In this case the
court may pronounce judgement in respect of the
parties not in dispute and will allow the proceedings
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77. to go into full hearing in respect of those parties who
are in dispute.
This rule applies mostly in cases where there are
more than one defendant.
Where summons to appear has been issued but at
the first hearing the party has without sufficient
cause failed to produce the witnesses under Order XV
rule 4 the Court has power to pronounce judgment
against the party who has failed to bring the
witnesses.
This is called A DISMISSAL FOR LACK OF
PROSECUTION.
ZAID V. HUMEIDAN [1960] EA 92
In this case a distinction was made between a
dismissal for lack of prosecution and a judgment
under Order XV rule 4.
Technically a dismissal for lack prosecution is not the
same as judgment entered upon.
In one situation what a court does is merely to
dismiss the suit. This happens only against the
defendant. You cannot technically dismiss the
defendant. A dismissal for lack of prosecution is only
to the plaintiff.
WHERE THE DEFENDANT DOES NOT APPEAR
Where the defendant does not appear and the case is
coming for hearing he suffers an ex parte decree.
Where the defendant turns up but does not comply
with the requirement of the summons to appear eg
he does not bring the witnesses (evidence) judgment
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