Civil procedure udsm manual 2002

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Civil procedure udsm manual 2002

  1. 1. 1
  2. 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 PleadingsShaukut Mahmood the Code of Civil Procedure 1908 7. Flemming Civil Procedure – America book. 8. Spry Civil Procedure in East Africa II. Statutes 2
  3. 3. CIVIL PROCEDURECivil Procedure Is a procedure of litigation before theCourts in civil matters. It does not give any litigant aright but it enacts a procedure through which a rightcan be obtained.It is a Procedural law unlike Substantive law whichgives a right to a litigant.Functions of Civil ProcedureIt helps resolve the arguments presented from theparties. Civil Procedure helps in making availability ofright clear through procedural rules.Procedural law assures you that the rights given bythe substantial law are obtainable.The Civil Procedure Code of Tanzania is divided intotwo parts:1. The Main Act2. The SchedulesIn Tanzania the Schedules are regarded as part of theAct – which is a departure from the general rule ofinterpretation that, neither schedules nor preamblesare part of the Act.Construction of the Civil Procedure CodeSince Civil Procedure is adjectival law and a way offacilitating administration of justice or rather the waythrough which a right is obtained, the provisions ofCivil Procedure Code should be given the literalmeaning. 3
  4. 4. All rules of procedure must be geared at speedyending of litigations and at a lower cost. Procedure isa servant – which should facilitate and not hinder theadministration of justice.IRON AND STEEL WARES V C.W.MARTY & CO. (1956)23 3ACA 175, 177.Procedural statutes must be interpreted liberally. Thisposition is illustrated in KENDAL V HAMILTON (1878)4AC 504 at page 525:“Procedure is but a machinery of the law after all, thechannel and means whereby is administered andjustice reached. It strangely departs from its properoffice when in place of facilitating it is permitted toobstruct and even extinguish legal rights and thusmade to govern where it ought to subserve.”Procedural Statutes should not be construed in such atechnical way that will make the court fall to dosubstantial justice between the parties.Preliminaries to LitigationIn any litigation of a civil nature there must be twothings co-existing:1. Parties 2. A disputeNB: Not all disputes go to court but only those whichare contested.The claimant must present a demand note upon theprospective defendant – in East Africa it is called aLetter of Demand.A LETTER OF DEMAND: Is a letter presented to theprospective defendant by the prospective plaintifflaying down the claims by the prospective plaintiff 4
  5. 5. against the prospective defendant and demanding aremedy at the threat of being sued. There is no aprescribed form of a letter of demand provided itprovides the necessary information.Three things in a Letter of Demand:1. Concise statement of claim - which shouldcontain particulars sufficient for the prospectivedefendant to know what is required by him.2. That letter should contain a clear andunambiguous demand that the claim should remaingood.3. The letter should prescribe a limitation periodnormally 14 days within which the claim should bemet or else legal proceedings may be institutedwithout any further notice. This is what has made theletter be referred to as a notice with an intention tosue.NB. The Civil Procedure Code does not provide for aletter of demand. It is provided for in the Advocates’Remunerations and Taxation of Costs Rules GN 193 of1924 under Rule 61 it is provided as follows: “If the Plaintiff in any action has not given thedefendant notice of his intention to sue, and thedefendant pays the amount claimed or found to bedue, at or before the first hearing no advocate’s feewill be allowed except on the special orders ofthe judge." 5
  6. 6. JURISDICTIONSection 13 of the Civil Procedure Code provides that –every suit should be instituted in the Court of thelowest grade competent to try it.What is Jurisdiction?Is the power to hear and determine matters whichare litigated before a tribunal. Jurisdiction is aquestion of law – a creature of statute e.g. inTanzania the High Court is established by theConstitution and the subordinate courts areestablished by the Magistrates Court Act, No. 2 of1984. Jurisdiction is determined before the beginningof the proceedings.Refer the case of Anisminic Case – which is justpersuasive for Tanzania.TYPES OF JURISDICTION1. Territorial JurisdictionEvery court has a limited area is i.e. geographical area– in which it operates. This is provided by statuteestablishing that court and in some cases by thesubsidiary legislation.In Tanzania there is only one court having jurisdictionover the whole country, this is the High Court ofTanzania.There are two High Courts in the United Republic ofTanzania. These are – the High Court of the UnitedRepublic of Tanzania and the High Court of Zanzibar.The two High Courts have concurrent jurisdiction. 6
  7. 7. Note: The High Court of the United Republic has nojurisdiction over matters of Zanzibar but overmatters arising from the mainland, except overmatters relating to election. The High Court ofZanzibar has no jurisdiction over election petitionsarising from the Mainland but for matters of petition arising from the House of Representatives.The High Court of the United Republic of Tanzania hasseveral registries. However the High Court has noterritorial limit.The High Court Registries Rules give guidance on theprocedure of filing a case in registry in which the casearises, or the area where the parties reside. There isan exception to this rule depending on thecircumstances of the case therefore, a case can befiled in any registry but it will be transferred to itsproper registry.District CourtTerritorial jurisdiction of a District Court is theboundaries for which the district is established.Refer the Magistrates’ Courts Act, 1984.Note: That there are two types of DistrictMagistrates. Those designated as Civil Magistrates -who are entitled to hear civil cases. And those notdesignated to hear civil cases.Resident Magistrate’s CourtsMagistrates of the RM’s Courts have a widerjurisdiction. Their territorial jurisdiction is the regionin which that court is established.Refer the Magistrates’ Court Act, 1984. 7
  8. 8. Primary CourtsTerritorial jurisdiction of Primary Court is limited tothe district where it is established.Eg. the Primary Court Manzese is the Primary Court ofKinondoni at Manzese.Jurisdiction in respect of Immovable PropertyThe court in which area the property is situated hasjurisdiction over the property. In claims relating toimmovable property the party can chose betweenwhere the claim arose and the area where the otherparty voluntarily resides and/or works for gain.Primary Court has unlimited jurisdiction overproperty held under customary law and in matters ofIslamic Law.2. Exclusive JurisdictionThis is jurisdiction vested in a particular court inexclusion of any other court. This jurisdiction isnormally vested in that court by a statute e.g.Workmen’s Compensation Ordinance which vestsexclusive original jurisdiction over matters relating tothe Ordinance to the District Court; and the RentRestriction Act(REPEALED & LAND ACT CAP 113 IS INEXISTANCE) which grants exclusive originaljurisdiction over matters relating to landlord andtenant to the Housing Tribunal.3. Concurrent JurisdictionCourts are said to exercise concurrent jurisdictionwhen they can exercise original jurisdiction over thesame matter. 8
  9. 9. 4. Pecuniary Jurisdiction Refer to Magistrates Courts Act, 1984.All courts except the High Court are courts of limitedjurisdiction.Note:-1- The Magistrates Courts Act provides forunlimited jurisdiction over Islamic & Customary Lawto Primary Courts but the Act does not provide specifically for exclusive jurisdiction over civilmatters related to Islamic and Customary Law.-2- Under the MCA all civil proceedings in respect ofIslamic and Customary law must be commenced inprimary court unless the Republic or the President is aparty or the High Court has granted leave to theparties to otherwise commence the civilproceedings.-3- A primary court has no jurisdiction to civil caseunless customary law is a applicable or theproceedings are for the recovery of civil debts ofinterest due to the United Republic of Tanzania orLocal 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 courtwithin which the subject matter is situated.Immovable property – where the property is suited.Refer section 13 of the CPCPecuniary jurisdiction.The place where the defendant resides or works forgain. 9
  10. 10. NB: Suit may either follow the defendant or thecause of action.A company may be sued or sue where there is headoffice or branch or sub-office of the company.Authorities1. Francis Mwijage v Boniface Kabalemeza (1968)HCD n. 3412. Sheikh Kassim Suleman v Ayubu Kamgila (1968)HCD n. 793. Walumu Jilala v John Mongo (1968) HCD n. 814. Edward Kalemela v Muyebe Rwenjege (1968)HCD n. 802. RES JUDICATAIs a Common Law doctrine included in the CivilProcedure Code. It has two elements Res meaningmatter and judicata meaning already adjudicated.Res judicata – bars subsequent litigations involvingmatters substantially and directly the same betweenthe same parties or parties claiming on the samething.-Res Judicata applies only to civil litigations.The doctrine of Res judicata is based on two wellknown maxims of Common law.1. interest reipubicae est ut sit finis litium i.e. it is inthe public interest that there be an end to litigation.2. nemo debet bis vexari pro aedem causa i.e. noone should be in jeopardy twice on the same ground. 10
  11. 11. Elements of Res JudicataRefer Section 9 of the CPC1. There must exist two suits – one finally andconclusively determined and another pending.2. These suits must be before courts of competentjurisdiction.3. These suits must have been between sameparties – or parties claiming under the same title.4. The matters that are directly and substantially inissue between the parties in the pending suit musthave also been directly and substantially in issue inthe previously decided suit.Effect of the doctrineA person cannot raise an allegation which haspreviously been decided against him by a court ofcompetent jurisdiction. A Judgement may be assailedby an appeal where a right of appeal exists, or byapplying to have the judgment set aside where it wasobtained fraudulently or collusively.See: R.V. Hatchings (1881), 6 QB 300.3. PARTIES TO SUITIn every civil litigation there has to be a minimum oftwo parties opposing each other in respect of adispute. In other words there has to be a lis interparte with litis contestatioThe two parties to a suit are PLAINTIFF andDEFENDANT.Plaintiff is the party who has a right to relief againstthe other party (defendant). The right of relief shouldnot be a moral right but a legal right. 11
  12. 12. In simple civil suit there is a single plaintiff and asingle defendant while in a complex suit there arevarious parties.Parties to a Civil Suit1. Proper PartyIs that party without whom no effective decree canbe issued? His presence is necessary because thecourt must either give a relief or a decree againsthim. Proper parties are parties who must be beforethe court.2. Necessary PartyIs the one whose presence in court is desirable butwhose absence does not render the decreeineffective Eg. In nuisance suit over a flow of sewage– a decree against the tenant can be affected throughthe landlord. The tenant is therefore a proper partybecause he will bring the landlord - he is thereforenot a necessary party but a proper party and thelandlord the necessary party.The person who will be compelled to do what issought is the necessary party.JOINDER OF PARTIESGeneral Principle: The CPC does not compel a party tocombine the parties in pursuance of their rights nordoes it prohibit joinder of the parties.Joinder of PlaintiffsOrder 1 rule 1 CPC provides – More than one plaintiffcan sue against one or more defendants if the right to 12
  13. 13. relief claimed by them arises out of the same act ortransaction or a series of acts or transactions and ifseparate suits were brought, common questions oflaw or fact may arise.Refer: Yowana Kahere V. Lunjo Estates Ltd [1959] EA319 Kanani V. Desai Uganda High Court Civil Case No.469/1953Points to Consider In Joinder of PlaintiffsThese are just practical and not legal considerations1. Parties (co-plaintiffs) must have commoninterests. Where it is likely to differ in interests it isadvisable that each plaintiff should sue separately.2. Co-plaintiffs should be represented by the sameadvocate to avoid prejudice to parties.3. Joinder of plaintiffs shortens the conclusion ofthe case.4. It is less expensive to sue jointly than separatelyin terms of mobilizing the parties and witnesses.5. Suing jointly does not require presentation ofthird party notice against some of the plaintiffs.6. Where the defendant is successful against someof the plaintiffs, there is a real likelihood that thesuccessful plaintiff will be found to be jointly liable tothe defendant.Cause of actionMeans all the facts which have to be proved byplaintiff in order to be entitled to a relief or the factswhich are going to be proved in the court in order toobtain relief. 13
  14. 14. Joinder of PlaintiffsThe test is whether the plaintiffs are jointly interestedin the same subject matter.See: BOLTON V SALIM KAMBI [1958] EA 360The Plaintiff sued under Cap. 360 for damages on hisown behalf as the dependant of his deceased son andat the same time he sued as the administrator of theestate of his deceased son. The issue was whetherthere was a proper joinder of plaintiffs. It was heldthat there was nothing wrong for a person to sue in adual capacity.Joinder of DefendantsRule 3 of Order 1It is not necessary that every defendant should beinterested as to all the reliefs claimed in any suitagainst him. The rule does not require that allquestions of law or fact must be common to all theparties. It is sufficient that there is a commonquestion either of law or of fact.ILLUSTRATIONS1. A brought a suit against B, C, D and E forrecovery of certain documents of title and the goodsin suit were his property; that defendant B obtainedfrom him the documents of title relating thereto byfraud and made them over to defendant C; thatdefendant C wrongfully dealt with them and sold thegoods to defendants D and E; that D and E claimed toretain the goods and documents of title. 14
  15. 15. Held: The right to relief against each of thedefendants is based upon the same act, namely, thealleged fraud of B, and this is so notwithstanding thefact that there may have been subsequent acts ortransactions in which the different defendants areindividually concerned and which may enable them toraise distinct defences. If different suits wereinstituted, at least one common question of factwould arise, namely the exact nature of the actimputed to B, which would have to be investigated,presumably on the same evidence separatelyadduced in several suits. 2. A holder of 100 shares in a company, brought anaction against the company, its several directors andpromoters and executors of a deceased director andpromoter, as against the company’s cancellation ofthe allotment to him of his shares and return of hismoney by paid him with interest, damages as againstthe defendants other than the company andrectification of the company’s register of members bythe removal of his name therefrom. He alleged thathe had applied for the shares upon the faith of, andinduced by the misrepresentations contained in theprospectus issued by and with the authority of thedefendants (other than the company and executors)and of the deceased.Held: In substance, the shareholder has onegrievance, call it a cause of action or what you like,and in substance he has one complaint, and all thepersons he sues, have according to him, been guiltyof conduct which gives him a right to relief in respect 15
  16. 16. of one thing which they have done, namely issuing ofthe prospectus.See also the case of Thomas V. Moore (1918) IKB 555per Lawrence, J.‘that the court has discretion as to allowing thejoinder of the defendants and that as there was acommon question of fact to be tried………….the courtwould in exercise of that discretion allow the twodefendants to be joined in one action. As a GeneralRule: where claims by or against different partiesinvolve or may involve a common question of factbeing against different parties of sufficientimportance in proportion to the rest of action torender it desirable that the whole of the mattersshould be disposed of at the same time, then it willallow the joinder of plaintiffs or defendants subject toits discretion as to how the action should be brought.It should be noted that joinder of the parties andcauses of action is discretionary in the sense that ifthey are joined there is no absolute right to havethem struck out but it is discretionary in the court todo so.’The plaintiff can at his option join as parties all or anyof the persons jointly or severally liable on anycontract including parties to bills of exchange,hundies and promissory notes. See: Order I Rule 6CPC.If the Plaintiff is in doubt as to the person from whomhe is to obtain redress, he may join two or moredefendants in order that the question as to which of 16
  17. 17. the defendants is liable, and to what extent may bedetermined as between all parties. See: Order I Rule 7CPC.Under Which Circumstances Can You Join theDefendants?1. In joining defendants one has to look at theconnection between the defendant and the cause ofaction. See: Order I Rule 3 CPC2. Rights to relief must arise out of the same act ortransaction3. If separate suits are brought against thedefendants there would be common question(s) oflaw.Authoritiesi) PETER COMPANY LIMITED V. MANGALJI &OTHERS [1964] EA80.81ii) 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 thatall defendants should be interested in the reliefclaimed in the suit but it is necessary that there mustbe a ‘cause of action’ in which all the defendants aremore or less interested although the relief askedagainst them may vary:”Reference should be made to Section 111 of theEvidence Act, 1967. That, the plaintiff must prove thecase against the defendant or all the defendants onbalance of probability. 17
  18. 18. REPRESENTATIVE SUITS (GROUP ACTIONS) - Order IRule 8 CPCWhere several plaintiffs claim a right to relief againstone defendant or several defendants jointly and suchpersons have the same interest in the subject matterof the suit then a member of them may sue on behalfof all.They are actions normally filed against a public or aparticular social group, trade union, local authority orin declaratory actions against the Government.The persons suing are known as Representatives.Before they file the suit they must first obtain arepresentation order by filing an Application(chamber summons) and Notice must be given inMass Newspaper to invite objections.If there is no objection the court will grant theRepresentation Order. Judgment given out of arepresentative suit shall bind all the parties.EFFECT OF JOINDER OF DEFENDANTSAddition of defendant necessitates amendment ofthe pleadings in order to incorporate the newdefendant into the action and he must be served witha copy of the pleadings.NB: Addition of defendant is subject to the Law ofLimitation.Order I Rule 12: Where there is a joinder of partieswhether plaintiffs or defendants, some of them willbe allowed to appear, plead and conduct the case onbehalf of the others. 18
  19. 19. Where there is more than one plaintiff or defendant,the parties may appoint one of them to proceed onbehalf of the others provided the authorization mustbe in writing and signed by the parties. The partiesnot appearing in court will be bound by the decisionof the court.THIRD PARTY PROCEDURE – Order I Rule 14 CPCA procedure under which a party who is not anoriginal party to the proceedings is brought to the suitand thereby made a party to the suit. The third partyis neither a plaintiff nor a defendant.It is a procedure which enables the court to makeorders in favour of the defendant against the thirdparty when the defendant is found liable to theplaintiff.In effect it is a procedure which enables the court toentertain two suits simultaneously thereby savingtime and reduce costs of litigation.This procedure is available to the defendant only.The relevant provisions for Third party Procedure areParas (a), (b) and (c) of rule 15 of Order I of the CPC.In the Case of Bhamji Laxman limited V. National SisalAuthority & the NBC. High Court Civil Case No.60 of1993 (DSM).Mwaikasu J., stated in the said case that:“At this juncture let it be pointed out that a ThirdParty Notice is for all practical purposes, a form ofa claim by the defendant instituted against the thirdparty, for the relief’s sought. As the defendant’s claimagainst the third party hinge on the nature of the 19
  20. 20. claim of the plaintiff against the defendant, it is fora fair and just adjudication of the dispute imperativethat the third party should be supplied with sufficientfacts as to make him know adequately the natureof the claim as to be in a position to prepare a properand adequate defense. The need for such sufficientfacts to enable the third party identify the natureof the claim comes to the fore when one readsRule 17 of Order 1 of the CPC.”Conditions For Third Party ProceedingsThe applicant must establish that he is entitled tocontribution or indemnity.Refer: Parry V. Carson “In order to bring himselfwithin the ambit of Order 1 Rule 14 the applicantmust show upon the face of the pleadings and uponhis supporting affidavit that he would be entitled toindemnity from the third party in respect of theamount which the plaintiff claims from him in theevent of that claim be successful.”Refer also: WALUSIMBI V. A.G (U) [1959] EA 223 RMINGHAM & DISTRICT LAND CO. V.LONDON NORTH WESTERNRAILWAY CO. (1887) 34 Ch. D.261 WYNE V. TEMPEST [1897] 1Ch.110 at 113per Chitty, J;“A right to indemnity may arise under express orimplied contract or by reason of an obligation fromthe relation of the parties, such an obligation arises inequity from the relation of the parties when twotrustees are liable for a breach of trust and one hasapplied the trust fund to his own use; in that case the 20
  21. 21. trustee who has so dis-applied the fund is liable toindemnify his co-trustee; so where a man hasrequested another to hold as a trustee for him sharesupon which there is liability for calls or the like thetrustee is entitled to an indemnity not merely out ofthe trust property but by the cestui que trust i.e. thebeneficiary.”Note: - The right to indemnity is a contractual rightwhile the right to contribution is an equitable right. - Joint tortfeasor has a duty to contributionagainst his co-tortfeasor.LIMIT OF THIRD PARTY PROCEDUREEdward Kirondoke Kaggwa V. Castapereira [1963] EA213“Third Party Procedure is limited to claims tocontribution or indemnity only and it cannot beextended to a right for damages.”Refer – Insurance Claims.Overseas Touring Road Services V. Africa ProduceAgency [1962] EA 190, 191.HOW TO INSTITUTE THIRD PARTY PROCEEDINGSOrder I Rule 14(2) CPCThe defendant desiring to issue a third party noticemust file an application to Court for leave to issue thethird party notice. The application has to be made exparte supported by an affidavit. The affidavit willdisclose the grounds upon which the application ismade. It must disclose a cause of action.- Once there has been service to the Third Party ,he becomes a party to the proceedings 21
  22. 22. - The Third Party is liable when the defendant isliable when the defendant is liable to plaintiff.- The Third Party can not challenge the plaintiff’scase but he may defend himself against thedefendant. i.e. pointing out that the defendant is notentitled to any contribution or indemnity.APPEARANCEThree Modes of Appearance1. Personal AppearanceA party in law is entitled to enter appearancepersonally except where it is a corporation.Corporations can only appear by an advocate.Iboos Petrol Station V. Blackstone Utility 1955 KLR 20A Corporation aggregate has got two types of agents.Agent for ministerial/administrative purposes i.e.manager to cleaner. Agent for Legal purposes whomust be an advocate.NB: A Company’s Secretary though a lawyer is not anagent.Section 3 of the Advocates Ordinance Cap. 341 definean advocate as a person whose name appears in theRoll of Advocates.TLCs Act, 1971 - TLC advocates cannot act wheretheir employers are not involved.Zuberi Gigi V. The Returning Officer 1974 LRT n.52 – AState Attorney is an advocate only when he is actingon behalf of the State.2. By As Advocate Duly InstructedW. V. Commissioner of Income Tax [1973] EA 187defines who an advocate is. To be duly instructed an 22
  23. 23. advocate must be able to answer all the materialquestions 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 913. By Recognized Agent A recognized agent is a person who holds powerof attorney. A power of attorney is a document/instrumentby which a person empowers another person torepresent him or act in his stead for certain purposes. The person so appointed becomes an Agent ofthe Principal.Order III rule I CPC provides: “Any appearance, application or act in or to anycourt, required or authorized by law to be made ordone by a party in such court, may, except whereotherwise expressly provided by any law for the timebeing in force, be made or done by the party inperson or by his recognized agent or by an advocateduly appointed to act on behalf or, where theAttorney-General is a party, by a public officer dulyauthorized by him in that behalf. Provided that anysuch appearance shall, if the court so directs, bemade 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) 23
  24. 24. Hans was authorized only to settle the claim againstthe Defendant and not to act as authorized agent interms of the provisions of Order III rule I of the CPC.Instead Hans Nagorsen filed a suit as the Attorney ofthe Plaintiff.Kyando J, held:“I would readily agree that authorization to settle aclaim is not the same thing as authorization toappear, apply or do any act in or to any court withinthe meaning of those words as used in Order III rule lof CPC. As I see it, Mr. Nargosen was authorized tonegotiate settlements out of court, of the claim. Hecertainly was not, by the above letter, authorized toinstitute a suit or suits. The institution of the presentsuit by him was done without authority or powertherefore.”It was also stated in the above case that. “Where aparty is unable to sign the pleading it may be signedby any person duly authorized by him to sign or tosue or defend on his behalf.”In another case, Amirah Ahmed Jaffer V. AbdulrasulAhmed JAFFER & 2 Others. High Court Misc. Civil CaseNo.48 of 1992 (DSM).Mapigano J, stated as follows:“As every lawyer perfectly understands, a power ofattorney is a formal instrument by which one personempowers another to represent him or act in hisstead for certain purposes. Under Order III rule 2 (a)of CPC a grantee of such powers is competent to goto law and make application on behalf of the grantor, 24
  25. 25. providing that the instrument gives him suchauthority, and I am acutely aware that the terms ofsuch instrument should receive a strict constructionas giving only such authority as it confers expressly orby necessary implication.”The trial Judge went on to say:“By the same token where the principal himselfmakes or does an application, appearance or act, hisattorney has no locus.”INSTITUTION OF SUITSSection 22 and Order IV of CPCSUIT – Is a proceeding of a civil nature which hasbeen commenced by the presentation of a plaint or inany other manner which has been prescribed by therules 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 memorandumpresented to court by a claimant setting forth hisreasons of complaint and the relief he is seeking fromthe court. So as to be a plaint it has to comply withthe rules of pleadings as provided under Orders VIand VIII of the Code.”WHO MAY COMMENCE CIVIL PROCEEDINGSAny person whose legal right has been infringed uponhas a right to bring a suit against theinfringer/intruder.Order III Rule 1 25
  26. 26. Any act which may be done by a party to theproceedings may be done by his agent or advocateduly instructed.As a general rule a plaint must be presented by theplaintiff himself or by the person duly authorized.Presentation of the plaint must be physical. The samemust be physically presented to the Officer of thecourt authorized, a plaint cannot be presented bypost, telegram etc. See Order IV Rule 1 CPC.TIME AND PLACE OF PRESENTATION OF THE PLAINTThere is no specific provision for time and place ofpresentation of the plaint. Presentation can be madeat any time and place provided it has been presentedto the authorized person.This saves time as once the party delays to file hisplaint he has got to apply to the Minister for Justicefor extension of time.WHEN IS A SUIT TAKEN TO BE FILEDA suit is taken to have been filed when the necessarycourt fees have been paid. Presentation of the plainthas to be coupled with the payment of fees i.e. theplaint must be accompanied by an official receiptevidencing payment of the necessary fees. As forpayment of the fees by cheque, date of filing is notthe date when the cheque is signed but when it hasbeen honoured by the bank and therefore although itis presented any time and place the plaintiff must payand get the receipt.See: RATAN JAYAKISAN SHUKLA V. BAPU HIRAJIKWILO AIR (V.24) Bomb.25The judge stated: 26
  27. 27. “The Judge can accept a plaint at any hour he choosesthough outside office hours and at any place hechooses and I see no reason to doubt that the Clerk ofthe court who is a duly constituted officer of thecourt with power to accept a plaint can accept thatplaint outside office hours and outside the courtbuilding although I don’t, for a moment, the clerk isbound 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 thecourt to grant leave to sue in forma pauperis. InSINGH V. SINGH AIR 1937 Oush.452 it was stated that‘….merely filing an application for leave to sue informa pauperis, though it is accompanied by theplaint, does not amount to the institution of the suitthere cannot be any suit or plaint before the courtuntil the application to sue in forma pauperis isgranted.A PLAINT must contain precise and concise statementof the claim against the defendant, it has to disclose acause of action against the defendant, and it has alsoto be verified by the plaintiff.The same applies to all other pleadings.SUMMONS - ORDER V CPCOrder V Rule 1 – Once a suit has been filed it is theduty of the court to summon the defendant.What is a Summons? It is a process (document) ofthe court addressed to the defendant informing himthat a suit has been instituted against him andrequiring him to submit to the jurisdiction of thecourt either by filing a written statement of defence 27
  28. 28. (WSD) within the specified period in the summons orto enter appearance before the court for thepurposes of receiving the directions of the court on adate specified in the summons.PURPOSE OF SUMMONSThe procedure conforms with the rules of naturaljustice that no party should be condemned unheard.It gives the defendant an opportunity to be heard.TYPES OF SUMMONSThere are two types of summons.1. Summons to appear2. Summons to file a Written Statement of Defence(WSD)NB: Summons to appear are normally issued by theHigh Court. Summons to file WSD is invariably issuedby Subordinate Courts.Mandatory (Basic) Requirements of a Summons1. Under Order V Rule 2 a summons must be signedby a Judge or a Magistrate or any other Officerappointed 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 adocument. The High Court is the only court inTanzania with such a seal. However, rubber stampmay be a valid seal as the endorsement seal. See: SATCHU V. A.G [1960] EA 508 and BAWMANV NADIOPE [1968] EA 306. There is a rebuttablepresumption that the person signing the summonshas the authority to do so. One cannot inquire as tothe authenticity of the signature at the time ofservice. 28
  29. 29. 3. A summons must be accompanied by anotherdocument. Order V Rule 3 of CPC - to enable thedefendant know the nature of the suit relating to thesummons. The Plaintiff must produce enough copiesfor all the defendants.APPEARANCEAppearance by the defendant means the defendant’ssubmission to the court and his intention to defendhis case.EAP & T V. M/S TERRAZO PAVIORS [1973] LTR 58 “Appearance under the Code means attendance inperson or by an advocate in court on the date statedin the summons which is also the date of hearing.Once the defendant is present, either in person or byan advocate when the case is called up that issufficient appearance.”Methods of Serving SummonsThe general principle is that service of summonsshould be made upon the defendant himselfpersonally.The person who does the delivery of the summons isthe Court Process Server or the Court Bailiff (Officerof the court specifically appointed for purposes ofserving processes of the court). Refer: Order V Rules 9to 15 CPC.Exceptions to the general principle:1. Where the defendant has an agent authorized toreceive summons the summons will be served on theagent.2. Where the suit relates to any business or workand the defendant does not reside within the 29
  30. 30. jurisdiction of the court then service may be made onthe Manager of the business.3. Where the suit relates to immovable propertyservice of the summons must be made to the agentwith authority to deal with that property.4. Where the defendant cannot be found, nor hasan agent or authority to receive summons then thesummons may be served on any adult member of thehousehold except the servant.Proof of Service of SummonsOrder V Rule 16 CPCThe person who receives the summons mustacknowledge receipt by signing on the originalsummons which is then returned to the court and heretains the copy. Where the party refuses to receivethe summons the Process - Server leaves the copyaside and swears on the affidavit that the bearer hasrefused to receive the summons and that a copythereof has been left on him. Witnesses’ addressesmay also be mentioned.Where the defendant or his agent cannot be foundand no adult member of the family leave of the courtis sought to have a copy of the summons affixed atthe place which is known to be the defendant’s lastplace of aboard.Substituted Service (in substitution of personalservice) Order V Rule 20 CPC The rules relatingthe substituted service are exception to Rule 12 ofOrder V in that they allow service of the summons bya method which directly does not involve thedefendant. A plaintiff desiring to serve the defendantwith substituted service must get leave of the court. 30
  31. 31. He must apply by showing grounds and reasons forthis. Substituted service is done by publication in thenewspapers or by affixing the copy of the summonsat the court - house or at a public place where pubicnotices are given.Note: Substitution of summons does not includecopy of the plaint. The copy of the plaint willremain in the registry and the defendant will be freeto go there to collect it.Other Forms of Service of SummonsService by PostOrder V Rule 21 CPCIt is secured on application by the plaintiff. Theapplication is made orally on the mention date. Suchorder is granted only upon the court being satisfiedthat personal service will entail unreasonable delay.Such a summons must be by registered mail. SeeOrder V Rule 30. The defendant will be required tosign on the original summons as acknowledgementand return the same to the court. The defendantmay write a letter to the court to acknowledgereceipt of the summons.Service outside the jurisdiction of the Court butwithin TanzaniaOrder V Rule 22 CPCThe court which issues a summons to the defendantwho resides outside its jurisdiction sends the originalsummons and a copy to the court having jurisdictionin the area the defendant is known to reside. e.g. TheRM in DSM sends summons and a copy to the RM inMbeya. 31
  32. 32. Note: This applies only to subordinate courts. Asubordinate court cannot send a summons to theHigh Court.When a summons is received by that court it is servedin the normal way. This court then returns to thecourt which issued the summons the originalsummons signed by the defendant with a coveringletter stating how the same was served.Where the defendant resides within the jurisdictionof Zanzibar the court may either send it by post orphysically by Officer of the court. Alternatively thecourt may send it directly to the subordinate court inZanzibar.If the defendant is in Prison the summons will be sentthrough the Officer – In -Charge of the Prisontogether with the copy of the plaint.If the defendant is a member of the Armed Forcesthen the summons is sent to his Commanding Officerwho has the duty to send the copy to the defendantand return the original signed by the defendant.Where the defendant is an employee in the CivilService then he may be served through his superior.Service of Summons to Defendant outside TanzaniaThere are two categories of countries.1. Kenya, Uganda, Malawi and Zambia. These havespecific agreement with Tanzania as to service of civilprocesses. Summons to these countries is served by:i) Post – registered mail where the address ofthe defendant is known. 32
  33. 33. ii) Directly to the court of that country withjurisdiction over the place where the defendantresides. On receipt the court will receive it as if it wasits own summons.iii) By the plaintiff or his agent sending thesummons 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 inaccordance with the agreement. Regardless of thissummons may be served by post or through the courtof that country. In Tanzania the Magistrate preparesthe summons, sends it with the plaint to the HighCourt, for translation where the country is not anEnglish speaking country. The Registrar of the HighCourt then sends it to the Principal Secretary of theMinistry of Foreign Affairs which will prepare adocument to be sent to that foreign country.Service through the foreign court will be as effectualas our own Local Courts.PLEADINGSWhat is Pleading?It is a legal term which connotes the presentation ofones claim (case) before the court.Generally, pleadings comprise of two things; 33
  34. 34. 1. The documents which are presented before thecourt in preparation of the suit. These documents laybare the material facts of the case.2. The process of preparing the documents.Order VI Rule 1 defines pleadings as the plaint, thewritten statement of defence and the reply to thewritten statement of defence and any otherdocument produced to court for the purpose ofpreparing the suit.The definition is not exhaustive. Pleadings alsoinclude the process of preparing the documentswhich lays bare the facts of the case and it includesthe documents themselves. In other words pleadingis an art of preparing the documents and on the otherhand it is the product of this art.Functions of PleadingsPleadings serve three purposes:i) Pleadings inform the court about thenature of the parties’ case by identifying the area ofcontroversy between the parties.ii) Pleadings serve the purposes of bringingthe parties to the issue. i.e. they establish litiscontestationiii) Pleadings put the dispute on record. Theydefine the area upon which the decision of the courtis sought and they put those areas in court. Oncethere is decision the matter becomes res judicata. 34
  35. 35. NB: Every party in civil litigation is entitled to knowthe nature of the case againsthim.Thorp V. Holdworth (1876) 3 Ch. D. 637,639 (LeadingCase)“The whole object of pleading is to bring the partiesto an issue and the whole meaning of the rules was toprevent the issue being enlarged which wouldprevent either party from knowing when the causecame on for trial, what the real point to be discussedand decided was. In fact, the whole meaning of thesystem is to narrow the parties to definite issues andthereby to diminish expense as delayed especially asregards the amount of testimony required at thehearing.”See also Palmer V. Gudagni [1906] 2Ch. 494,497Esso Petroleum Co. Ltd V. Southport Corpn. [1939/59]AC 218,238“The function of pleading is to give fair notice of thecase which has to be met so that the opposing partymay direct evidence to the issues disclosed by them.” Joseph Marco V. Pascal Rweyemamu (1977) LRT 59Zalkha Binti Moh’d Juma Mazige [1970] HCD 132N.J. Amin Ltd. V.B. Patel Co. Ltd. [1969] HCD 17Note:1. Only matters which are in dispute between theparties should be the subject of decision by the court.2. The purpose of pleadings is not to set out thewhole case. Pleadings are not evidence. Theycomprise only of the allegations to be supported byevidence. 35
  36. 36. 3. Pleadings relate to material facts only and not thelaw. Material facts are those which constitute thecause of action. They constitute a right and theinfringement of that right and the consequence of theinfringement of that right.4. As a general rule you do not plead particulars.There are certain exceptions to this rule e.g. inNegligence [which is a very wide tort], in fraudulentcases – you must specify the nature of the fraudulentbehaviour, Misrepresentation, Undue influence,Breach of Trust, Willful default. In all these actionsthe party pleading them must give the particulars.Refer Order VI CPC and the case of Northwestern SaltCo. Ltd.Certainty & Particularity in PleadingThe question of certainty was brought up in the caseof William V. Wilcox 112 ER 857,863. The case givestactics to be used in pleading.The CJ said: “The certainty or particularity of pleading isdirected not to the disclosure of the case of a partybut to informing the court, the jury and the opponentof the specific proposition for which it contains and ascarcely important objects that bringing the parties toissue on a single and certain point avoiding prolixityand uncertainty which would very probably arisefrom stating all the steps which lead up to that point.”According to the case there are two categories offacts1. The material facts 2. The subordinate facts 36
  37. 37. Material facts:These are those facts which lay out the cause ofaction.Subordinate facts:These are those facts which may properly be calledevidence.In the process of pleading you are required to pleadthe 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 657The Nature of Pleading Certain FactsUnder Rule 6 - where a condition precedent isalleged, the facts disclosing such condition have gotto be specifically pleaded.Under Rule 8 - where a contract is illegal, a baredenial will relate to existence of the illegality.Under Rule 10 - where a state of mind is pleaded it isenough to allege that state of mind, e.g. malice orknowledge.Rule 13 - you do not plead law because law is amatter of judicial notice.Subsequent pleading cannot raise new grounds.A pleading which is not signed is a defective pleadingas it is required by the Rule 14 to be signed by theparty himself or his advocate or where the party isabsent from the jurisdiction of the court or where heis unable to sign, by a duly authorized person.The requirement of signatures is a requirement oflaw; however the absence of signature is not fatal to 37
  38. 38. the proceedings. Therefore, where a pleading is notsigned, the defect may be curable by allowing theparty to sign.Where a party applies to have a signature on hispleading, the court will freely grant that application.Rule 15 - demands that all pleadings have to beverified.What is verification?It is a statement by a pleader showing that he has fullknowledge of what is pleaded and indicates his bonafide of what he has pleaded.Verification is a mandatory requirement.Under Rule 15(2) - the party verifying must verify tothe different paragraphs separately and show whichare verified according to his knowledge, belief andinformation.E.g.VERIFICATIONI. XY, being the plaintiff in the above named suit dohereby state that all that is stated in paras 1 to 5above is there to in the best of my own knowledge,what is stated in paras 6 and 7 is there to the best ofmy belief and what is stated in para 8 is there to theinformation supplied to me by the Dean of Students.DATED at Dar es Salaam this……….day of November,1988.……………………………………….PLAINTIFF 38
  39. 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. 40. parties how they should frame their case. However,this is subject to the limitation that the parties mustnot offend against the rules which have been laiddown by the law.“ Where a party to civil proceedings alleges ascandalous matter it will be struck out only when it isirrelevant, however , not every indecent or offensiveis not material is to be considered as scandalous….”If the scandalous matter is relevant it will not bestruck out.AMENDMENT OF PLEADINGSAs a general principle courts have discretion to orderamendment of the pleadings at any stage. Order VIRule 17 can be employed at any stage beforejudgment but it is advisable to effect them earlierbecause 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 matterof the power of court but it is a duty so thatsubstantive justice will be made.”Although Order VI Rule 17 is a permissive provisionthe High Court has interpreted the conditions asmandatory.In Tanzania amendments are the duty of the court.The party seeking amendment is the one to pay thecosts of amendment.Endevain V. Cohen (1889)43 Ch. D. 187Clarapede V. Commercial Union Association (1883)32 WR 262. 40
  41. 41. When an inconvenience is suffered by a party can beassessed in monetary terms and therefore attornedby the court for the interest of determining it thecourt will allow amendment.Although amendment will freely be granted anadvocate will suffer the costs. A professionallawyer should not make an application to amendpleadings.Principle: The court will allow amendment when theinconvenience caused can be assessed in monetaryterms to compensate the opposite party.Shivji V. PallegrinoThe amendments are ordered only for the purposesof making the existing pleadings clear. They are madeto elaborate the cause of action pleaded.Amendment will not be awarded where the effect ofgranting it will be to introduce a new course of action.Also an effect of amendment is not to substitute thecause of action for a new cause of actionTherefore, Order VI rule 16 cannot be used wherethrough negligence a party has failed to join causes ofaction where he could have done so in the beginning.When an order for amendment is granted the partywho has been allowed to amend must do so within 14days. If he cannot do so he cannot amend hispleadings unless he is allowed an extension of time bythe court. 41
  42. 42. PLAINTOrder 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 thecase and the names of the parties.In the body of the plaint the first paragraph shouldcontain the description of the plaintiff. Where there ismore than one plaintiff, each plaintiff will bedescribed in his own paragraph. The secondparagraph will contain the description of thedefendant. Where there is more than one defendant,each will be described in separate paragraph.The main body of the plaint will constitute the factswhich show the cause of action.Towards the end of the plaint there should be astatement to the effect that a claim has been madeand the defendant has refused to accede to it.There has to be a paragraph towards the end to showthat the court has jurisdiction. This is followed byprayer 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 asignature of the plaintiff or any person entitled bythe law. Then comes verification which should besigned at the left hand corner by an Advocate orMagistrate. 42
  43. 43. Normally there is no specific type of paper to use butthe practice is – pleadings are written in light greenpaper which is less than 800 grams.In England, there is a rule – it must be an A4 paper. InTanzania it must be in a foolscap.General notes on Plaint.- The names together with the description and theplace of residence or place of business must be setout in the title part of the plaint.- If the plaintiff is unable to give the full name ofthe defendant it is better to state in the body of plaintthat, in spite of his best endeavor, the plaintiff couldnot ascertain the full name of the defendant.- A corporation must sue or be sued in its fullcorporate name.- Partners may be sued in the firm’s name.- The capacity in which the plaintiff sues or thedefendant is being sued ordinarily be set out in thebody of the plaint.- Dual capacity, as where the plaintiff sues in arepresentative capacity as also in his own right shouldbe clearly stated.- Rule 1 (b) and (c) of Order VII requires that theplace of the plaintiff or the defendant is to be statedin the plaint. It does not say anything about the placewhere the plaintiff or the defendant carries onbusiness or personally works for gain.- Place of residence however, can only apply toperson actions. It cannot apply to a firm, corporationor government. 43
  44. 44. Even in personal actions the place where a partycarries on a business or personally works for gain maybe, and often is stated instead of his place ofresidence.In case of registered company, the place where theregistered office of the company is situated or whereany of the branch offices of the company is situated.The body of the plaint should be divided intoparagraphs and consecutively numbered.Dates, sums and numbers should be expressed infigure. See: Order VI Rule 2.RETURN AND REJECTION OF PLAINT.RETURN OF PLAINTA plaint is return to the person who filed it in a wrongcourt i.e court with no jurisdiction.The return is made, either at the presentation of theplaint or at the time of hearing. Only a judge ormagistrate has power to return a plaint.It is a judicial act in the sense that the judge or themagistrate must give reasons for the return and thesemust be recorded.Order VII Rule 10(2) the wrong court has no power todismiss the suit. You do not have jurisdiction toentertain the suit therefore you do not have power todismiss the suit.The proper approach is not to dismiss it but to returnit to the proper court.This exercise may be at any stage of the suit. Itdepends upon the time the court discovers. 44
  45. 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. 46. a fresh suit on the same subject matter and of thesame parties.DOCUMENTS TO BE RELIED UPON BY THE PLAINTIFFIN A PLAINTThere are two documents:1. Those which form the basis of the claim.2. Those which form the evidence to support theplaintiff’s claim.Those documents which form the basis of the claimwill be annexed to the plaint but those which formthe evidence need not be annexed to the plaint.Those in category 1 must be in the parties’ power ofpossession.A list of those documents which are not in the powerof possession of the party and which will be used inevidence may be annexed to the plaint or listed at thefoot of the plaint.Consequences of not disclosing the documentsThe party proposing to rely on the documents cannotproduce them in court unless granted leave of thecourt.Although those documents will be inadmissible theymay assist in cross-examination. Order Vii Rule 18(2).The principle of contingent cumulation – requires aparty to plead every remedy/cause of action which isavailable however contradictory.Eg. I never ran him over.Even if I ran him over, which is denied, I was notnegligent.Even if the court finds me liable for running him over Iwas not negligent. 46
  47. 47. Even if I ran him over, and even if I was negligent,which is denied, the defendant was contributorynegligent.NB. The contradictions are allowed because they helpframe the issue.The Principle of Preclusion says that the party cannotlead evidence on anything which was not pleaded. Ifone does not plead it he is precluded from leadingevidence on it.WRITTEN STATEMENT OF DEFENCEWritten Statement of Defense is a pleading presentedby the defendant intended to traverse the allegationswritten on the plaint.Two occasions under which the defendant maypresent the WSDOnce the defendant has been given a summons toappear he does not have the need to do anything andhe cannot be penalized for not filing WSD. Under order VIII rule 1 a defendant summonedto appear may file a WSD to shorten the time oflitigation.When a summons to file WSD has been issued thedefendant is required to file the WSD on or beforethe date indicated. The day of filing WSD is the day of hearing andnot the day of mention. However the court haspower to extend the period of filing WSD.Contents of WSDOrder VIII rule 2. WSD should contain all facts whichwill show that the plaintiff’s suit is not maintainable. 47
  48. 48. These may be questions of fact eg failure ofconsideration or questions of law. Eg res judicata,limitation, illegality etc.General ruleEach and every allegation in the plaint has got to betraversed/opposed.Allegations denied or admitted must be specificallystated in the WSD.Each paragraph of the plaint should be deniedseparately. Several words are used in traversing e.g.para (i) and (ii) are admitted. They are normally theaddresses. You cannot deny the defendant’s addressbut yours. Eg incases where you are not using theaddress of the advocate.Para (iii) is denied. Even if there was a contract, whichis denied, there was a failure of consideration.Para (iv) is denied. Even if there was a contract andconsideration, which is denied, the defendant assertsthat the contractual amounts were paid.NB The technique of confession and avoidance is usedin writing the WSD in which the defendant Admits the existence of some facts but at thesame time avoids the legal consequences of theexistence of those facts.Eg X admits the existence of a contract but therewere no vegetables, which is denied, the defendantasserts that the vegetables were rotten and thereforeunfit for human consumption. Under Order VII rule 3general denials are bad in law. 48
  49. 49. (x) Save as hereunder expressly admitted thedefendant denies each and every facts contained inthe plaint as if the same were set fort seriatim andspecifically traversed D paragraph help against thepresumption that whatever is not specifically anddenied is admitted.Note: Although as a general rule a general denial isnot admissible, it is acceptable where there has beenalready specific denial. Where there is not specificdenial, a general denial is inadmissible, and thedefendant will be taken to have admitted the rest.Refer Warner V. Sampson [1959] All ER 120 at 123per Denning; LJ“It is used [general denial] in nearly every defencethat goes out from the temple [inns of court wherebarristers operate from, in England] it comes at theend the pleader has – early gone through……in thestatement of claim and dealt with them. Some he hasadmitted, others he has denied. Whenever knowsthere is a serious contest he takes no instructions ona particular allegation he covers it by a general denialof this kind so that he can, if need be, put the plaintiffIn this cross-suit the defendant will be required topresent a WSD into sections:The Defence. 2. A statement of claim against theplaintiff.Although the plaintiff may not exercise his right toreply he is duty bound to present a WSD to thecounter-claim.Rule 12 provides – where a defendant has set up acounter-claim the court may order separate trialswhen it is in the opinion of the court that the 49
  50. 50. plaintiff’s claim and the defendant’s counter-claimcannot be heard simultaneously.Note: In counter-claim it is mandatory that theplaintiff should file his reply. In Set-Off the plaintiff has an option of replyingor not.When is a Suit Ready for Hearing?This will depend on the case.When there is no counter-claim or set-off thepleadings are closed and the suit is deemed ready forhearing once the plaintiff files a reply to the WSD.When there is a set-off or counter-claim and theplaintiff has in his reply raised a defence to such a set-off or counter-claim pleadings will be deemed to beclosed and the suit ready for hearing after thedefendant has filed his reply to the reply.Where he has already replied, rule 13 provides that,no further pleading can be presented to the courtsubsequent to the reply of the WSD other than adefence to set-off or counter-claim without the leaveof the court.Consequences of Failure to present a WSD or aDefence to Counter-claimThere are different consequences depending ondifferent things:The court may pronounce judgment against theperson who was supposed to present the defence. Ina case where the Summons was for appearing and hehas been given an order for appearing. 50
  51. 51. Where the summons was to file a WSD there are 2consequences:Where the claim is for a liquidated amount of moneywhich does not exceed T.Sh.1,000/= the plaintiff maymake an application to the court in writing for leaveto prove his case ex-parte by affidavit or by oralevidence.Where the amount exceeds 1,000/= and in any othercase the court may pronounce judgment after ex-parte proof.General Defences available in drafting a WSD1. Accord & Satisfaction – in law of contract.2. Acquiescence.3. Conditions Precedent.4. Custom and Usage.5. Capacity.6. Estoppel7. Fraud8. Illegality9. Jurisdiction10. Limitation11. Laches [lashes] i.e. equitable limitation.12. Misjoinder – of parties & of causes of action.13. Non-joinder of parties & causes of action14. Mistake15. Notice –insuffiency of Notice16. Payment17. Penalty as opposed to damagesDefence under protest18. Release19. Rescission 51
  52. 52. 20. Remoteness of Damages21. Res Judicata22. Res Sub judice23. Set-Off24. Tender25. Undue Influence26. Duress27. Lack of Special Damages28. Waiver29. Want of Cause of Action.NON-APPEARANCERead the provisions of Order IX, the case of EAP&BTV. Terrazo, and Orders III and V.The consequences of non-appearance of a partydiffer depending on who does not appear.Non-Appearance of the DefendantWhen summons was not served and failure to servethe summons was due to mistake of the plaintiffeither as a result of failing to pay court fees or hisfailure to pay postal charges the suit is to bedismissed. This is because there cannot be a suitwithout parties.Order IX Rule 2 – The court has power to dismiss thesuit on the first day of hearing. If by coincidence thedefendant is in court the court will not dismiss thesuit.Where neither the plaintiff nor the defendant is incourt the court will dismiss the case. Order IX Rule 3. 52
  53. 53. The summons is returned unserved and thedefendant does not appear, it is the duty of theplaintiff to apply for re-service. This application has tobe made within 3 months. If not within this period,the court will dismiss the suit per Order IX Rule 5.ExceptionsA suit may not be dismissed under rule 5 where theplaintiff shows the court that the defendant in proofof it at the trial, sometimes the pleader denies,sometimes he does not admit each and everyallegation but whatever phrase is used it all comesback to the same thing. The allegation has to beregarded as if were specifically set out and traversedseriatim. In other words it is traversed no more noless. The effect of the traverse has been known togenerations of pleaders. It casts upon the plaintiff theburden of proving the allegations denied. So thisgeneral denial does no more than put the plaintiffinto proof.”SET OFFSIn law of banking – one account can be used to set offa debt in another account.Generally: Is a mutual extinction of mutual debts inwhich two people (defendant & plaintiff) standreciprocally as creditors and debtors.Under the doctrine of Set Off: A defendant whostands in a position of creditor to the plaintiff, has aright to raise a defence of set off against the plaintiff.“In case he is found liable to the plaintiff then thesums that will be found owing to him from the 53
  54. 54. plaintiff should be set off against his liability to theplaintiff.”“What is owed by the plaintiff is cancelled by whatthe plaintiff owes him.” In the final analysis he will berequired to pay the balance.2 Types of Set OffLegal Set Off & Equitable Set OffA Legal Set Off exists when there is a liquidated sumof money and the plaintiff must owe the defendantthe liquidated sum of money.An Equitable Set Off – The amount owing is notliquidated. It will be settled by adjudication.The Whole Doctrine In EssenceIt is found under Order VIII rule 6. It is a doctrineunder which here is an extinction of debts of which 2persons are reciprocally debtors to one another.The two debts are extinguished by creditor of whichthese two people are creditors reciprocally to oneanother.Under the doctrine – a defendant in a suit forrecovery of money, who holds a position of creditoragainst a plaintiff, may claim a set off against theplaintiff.5 Conditions to be met before Order VIII rule 6 comesinto operation:The suit must be for recovery of money.The defendant has to have the monetary claimagainst the plaintiff and this must berecoverable claim. It it is a debt it must be due. 54
  55. 55. The defendant’s claim must be for a liquidated sum ofmoney.Both parties must be in the same capacity – i.e.Where the plaintiff is suing in a representativecapacity and owes the defendant a certain amount ofmoney in his personal capacity, that money cannot beset off because the liability of the plaintiff to thedefendant is not in a representative capacity. Thedefendant did not lend the money to the plaintiff’schild. The sums sought to be set off should not exceed thepecuniary 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 shouldnot be two suits.2. Order VIII rule 6 is a legal set off. CPC does nothave provisions for equitable se off. However, OrderVIII does not take away the right to an equitable setoff. Where it can be shown that a defendant willhave a right to set off independently of the Code theOrder VIII will not be used to prevent him fromexercising that equitable right.Difference between Legal and Equitable Set Off:1. A court is bound to entertain and adjudicateupon a legal set off once it is pleaded. However,where an equitable set off is pleaded the court has adiscretion to entertain it and adjudicate on it or orderthat it be brought in separate suit. 55
  56. 56. NB: Whereas a legal set off is a matter of right anequitable set off is not a right but discretional.2. The amount recoverable. In a legal set off theamount must be liquidated. One the other hand in anequitable set off the amount is not ascertained.3. In a legal set off it is important that the crosseddemand should have arisen in the same transactionwhile in the equitable set off the cross-demand neednot have arisen in the same transaction.Note: 1. Section 2(2) of the Judicature andApplication of Laws Act (JALA) provides for theapplication of Equity in TZ. 2. Section 95 of the CPC provides for theinherent powers of the Court.What Happens When There is a Set-Off?According to Rule 6 of order VIII a decree may bepassed against the plaintiff in respect of a set-off.Where there is a set-off the WSD is deemed to be aplaint to the extent of set-ff. In the reply to the WSDthe defendant will be required to raise defencesagainst the set-off.A COUNTER-CLAIM – Order VIII Rule 9It is in its nature different from set-off.Whereas rule 6 relates to a claim for a liquidatedamount of money, a Counter-Claim is general. Itrelates to any suit.Under rule 9(1) A defendant may raise a counter-claim against the plaintiff when any cause of actionvests in the defendant at the time of presentation ofthe WSD. 56
  57. 57. What should be established is: the fact that one ofthe parties is the defendant and the other is theplaintiff. Also one has got to establish that theyoccupy the same position – personal orrepresentative capacity.Distinction Between a Set-Off and a Counter-ClaimSet-off in its nature is a statutory defence. The statuteallows raising a defence by set-off.A counter-claim in its nature a cross-suit – because itembraces any cause of action which can be legallysustained. In that cross-suit the defendant becomesthe plaintiff and the original plaintiff becomes thedefendant.Is actively avoiding service of the summons or he hasfailed after exercising all efforts to discover theresidence of the defendant or for any other sufficientcause.The sufficient cause should be ejusdem generis toother things under rule 5.Note:Dismissal in all instances i.e. rules 1, 2, 3, & 5 cannot be res judicata because – noevidence & no hearing.Where the defendant has been served and he is notin courtIf the suit is in the High Court and summons is provedto have been properly served the plaintiff will beallowed to prove his case ex parte.Ex parte hearing does not mean that the plaintiffmust win. He must give sufficient evidence toconvince the court. 57
  58. 58. Where the defendant is in court and the plaintiff hasbeen allowed to proceed ex parte, the defendant willnot 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 bythe court. On the day of hearing the plaintiff praysthe matter to be heard in chamber by the judge sothat 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 thecourt may proceed ex parte.- Where summons issued was summons to appearthe court may enter judgment.Ex parte procedure is penal; it should be exercisedwhere the defendant refuses intentionally to appearor 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 bothin the High Court and in the Subordinate Courts.Summons for disposal of the suit constitute the firstday of hearing and it requires no proof like in the HighCourt where there should be ex parte proof.Where the court is not sure whether the summonswas duly served it will issue a fresh summons.Since rule 6 to Order IX is intended to punish adisobedient defendant, it can be shown although thesummons was duly served the defendant has not 58
  59. 59. failed to appear because of his abstinence the courtwill not proceed further. Order IX rule 6(1) O where itis proved that the summons was not served to givedefendant sufficient time to appear the court will fixanother time and adjourn the hearing. If it was theplaintiff’s fault he will be ordered to pay the costs ofadjournment.Where the Defendant appears after the order foradjournmentOrder IX rule 7 – where the court has ordered exparte proof under rule 6 but proof is not taken onthat day then the defendant may, on the day to whichthe hearing has been ordered adjourned, makeapplication under rule 7 to make an order to set asidethe ex parte orders. The application must be by wayof a chamber summons supported by an affidavit.In the application the defendant must show hissufficient causes for his non-appearance. The courthas discretion to set a side the ex-parte judgment.The court must be satisfied that the non-appearancewas due to sufficient reasons.Where the Plaintiff and the Defendant do notAppearThe Court shall dismiss the plaintiff’s claim and if thedefendant has a counter-claim the court will proceedex parte in respect of that counter-claim.Where the defendant has not admitted part of theplaintiff’s claim but admits part of it.Order IX rule 8 – the dismissal under this rule is resjudicata. 59
  60. 60. Order IX rule 9 – the plaintiff may apply to the courtwhich dismissed the suit for an order setting aside theex parte decree passed against him. This is by way ofchamber summons supported by an affidavit withsufficient grounds to persuade the court to set asidethe dismissal order.NB: An order to set aside the dismissal under orderIX rule 8 cannot be made unless the defendanthas been notified. An order to set aside the dismissal order cannotbe made ex parte.Difference between ex parte judgment and ex partedecree.An ex parte decree is a decree which arises out ofjudgment which was entered against the defendanteither after failing to file WSD or for his non-appearance on the first day of hearing. Where the defendant appears on the first day ofhearing but does not appear on the day of judgmenthe cannot be said to be given an ex parte judgmentbut an ex parte decree.Remedy for ex parte judgmentRefer Order IX rule 13.Sufficient Cause depends on the materialcircumstances of the case e.g. ignorance ofprocedure,Illness of the party or his advocate, Lack of transportetc. 60
  61. 61. T.M. Sanga V. Sadrudin G. Alibhai & Ors [1977] LRT51It points out circumstances under which the rule (rule13) can be applied.1. Uncertainty of the service of the summons issufficient reason for allowing an application to setaside an ex parte judgment and decree thereof.2. It is important to consider whether there are anytriable issues in case the judgement is set aside.When the court sets aside the ex parte judgment itsets a date for proceeding with the suit and hearingwill continue as if no judgment had been entered.FIRST HEARING OF THE CASEThe court is required to examine the parties toascertain whether the parties are really incontroversy (litis contestation) and if they are whatthe real points of controversy between them.This examination as also the purpose of framing theissues. Order X rule 1 makes it mandatory for thecourt to examine the parties. Under rule 3 of Order Xthe examination must be reduced in writing and formpart of the record. Compare with the Pre-trialConferences in the US system.INTERROGATORY – Order XIEvery party has a right to know the nature of itsopponent’s case.There are several ways through which the party willknow the nature of his opponent’s case. E.g.1. Pleadings. 2. Interrogatories. 3. Discovery ofDocuments. 4. Inspection of Documents. 61
  62. 62. What are Interrogatories?Interrogation is the act of questioning.Interrogatories are, therefore, written questions putby a party to civil proceedings to his opponent whichmust be answered by his opponent by his filing anaffidavit in answer to the interrogatories. Theseinterrogatories are normally put to the opponent inpreparation for the hearing of the suit.Functions of Interrogatories1. They enable the party presenting them to knowthe nature of the opponent’s case. They enable theopponent to prepare his case – e.g. evidence etc.2. They shorten the proceedings in that theopponent may admit certain facts and once thesefacts are admitted no need of evidence. The answersto the interrogatories help to determine whichevidence 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 knowthe nature of his opponent’s case so that he mayknow before hand what case he has to meet at thehearing. However such a party is not entitled to knowfacts which constitute exclusively the evidence of hisopponent’s case since an unscrupulous party maytamper with his opponent’s evidence once he knowsof it or he may manufacture evidence to oppose it.” 62
  63. 63. Interrogatories which should not be admitted at all:A party is not entitled to administer interrogatoriesfor obtaining a discovery of facts which constitute theexclusive evidence of his adversary’s case or title.A party is not entitled to interrogate his opponent onconfidential communication between his opponentand his legal adviser.Those interrogatories which are injurious to thepublic interest or security e.g. the defendant as amilitary officer to be inquired on military matters.GENERAL FORM OF INTERROGATORYTITLEInterrogatories on behalf of the above named Plaintiff(Defendant) for the examination of the above namedDefendants (Plaintiffs) pursuant to the order hereindated……day of ……19….Did you……………………Were you………………….Was it……………………..If not weren’t you…………(Set out the interrogatories in the form of concisequestions, each interrogatory to be set out in aseparate paragraph and numbered consecutively.)The defendant (plaintiff) AB is requested to answerthe interrogatories numbered…….etc.Served this ……day of ……19…. ………………………………………… 63
  64. 64. Advocate forthe Plaintiff (Defendant)To:The above named Defendant (Plaintiff)NB:1. The affidavit should be within 10 days and it iscalled affidavit for answer of interrogatories. 2. Failure to answer the interrogatories invitepenalty. If the party refuses to answerthem he shall be penalized in costs or in someinstances he may have his case struck out. Thisis governed by Order XI rule 18.Answer to interrogatoryIt is a matter of law.The party who is supposed to answer a question oninterrogatory is supposed to file an affidavit underOrder XI rule 7.The affidavit should be made to make the questionsanswered precisely and correctly.No exception can be taken in the affidavit. The partyshould not refuse to answer any question. However,any just exception/objection may be raised in theaffidavit e.g. the grounds that it is fishinginterrogatory i.e. when its sole purpose is to discoverthe evidence of the opponent.Where the party interrogating considers the answersinadequate he may demand full or further answersunder order XI rule 9 by application to the court. 64
  65. 65. DISCOVERY AND INSPECTIONWhereas interrogatories may be termed as adiscovery of facts there is a procedure of discoveringdocuments.Discovery is governed by rule 10 Order XI.Any party may without affidavit applies to court byorder to his opponent discover on oath all thedocuments which are in his power or possession andwhich he is going to rely upon his case. Thereforediscovery is a process under which a party to civilproceedings discloses all the documents he is going torely upon in his case.Discovery is a disclosure of documents made at theinstance of the opposite party.Refer Section 64 of the Evidence ActNB: Compare and Contrast orders XI rule 1, XI rule 10and XLIII rule 2.2 Ways of Discovery of DocumentsAnnexing them to the pleadingsMentioning them in the pleadings – either in the mainbody of the pleadings or in the list of documents tobe relied on. Order VII rule 14.Categories of DiscoveryVoluntary Discovery – the party discloses thedocuments he has and he uses them without theleave of the court.Compelled discovery – is made at the instance of theparty and under the order of the court. 65
  66. 66. When the order for discovery is made, the party issupposed 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 partywho made the discovery to produce certaindocuments before the court.The opposite party may alternatively at any time ofthe proceedings give notice to the party who madethe discovery for the production of the documents forpurposes of inspection either by himself or by hisadvocate. It is the duty of the party who holds suchdocuments to grant the party the right of inspect thedocuments. The right should be granted within tendays of the notice.3 grounds upon which the party may resist discoveryDocuments containing exclusive evidence of title.Documents which contain privileged communication.The discovery is irrelevant i.e. it does not go intoanswering any material fact in the suit.ADMISSIONSORDER XIIThere are two types of admissions under the CivilProcedure CodeAdmissions made at the instance of the partyadmitting himself.Those admissions which are made at the instance ofthe opposite party. 66
  67. 67. As a General RuleA party is not prohibited from admitting certain facts.Normally this is done where the party is sure thatcontesting the facts will be of no benefit to him butdelay fair conclusion of the suit and imposes on himmore expenses.When you admit you pay less costs because you don’tput anybody into trouble.Rule 1 Order XII enables the party to the proceedingsadmit the truth of the part of the opponent’s case orthe whole of it. i.e. Voluntary Admission.Rule 2 of the same Order provides that at any stage ofthe proceedings a party may require his opponent toadmit certain facts or document by A DOCUMENT TOADMIT facts or document. Hence there is a admissionof facts and admission of documents.Where a party refuses to admit any of the facts hewill bear the costs of proving them since evidence willhave to be lead by calling of witnesses etc.Note:1. Any admission made is for the purposes of the suitonly and not for any other purposes or persons.2. There has to be filed a notice to admit in thefollowing format;TITLENOTICE TO ADMIT FACTS(Under Order XII Rule 2 of the Civil Procedure Code)TAKE NOTICE that you are required to admit thefollowing facts for the purposes of the above-namedsuit only. 67
  68. 68. 1. That you lived with the petitioner as husband andwife for 11 years.2. That in that period you were blessed by 3 issues.3. That you subsequently married Y under theChristian rites.4. That before marrying Y you had jointly with thepetitioner acquired the following assets…………..TAKE NOTICE that you are required to admit the saidfacts within six days after the service of this noticeand in default whereof you shall bear the costs ofproving them.Dated at………this.....day of ……….1988 …………………………………… ADVOCATE FORPETITIONERTO ABC/O XY ADVOCATEDSMDRAWN BYCD ADVOCATESDSMSection 64 of the EVIDENCE ACT requires primaryevidence to be given.Under section 68 of the Evidence Act secondaryevidence may be given. If the document is in thepossession of the opponent, a notice must be servedon that party to produce the document within 10days. Failure to produce the document will make theparty to produce secondary evidence. 68
  69. 69. i.e. “Admit or I’ll produce evidence to prove themand if you don’t I’ll have notice to produce them”.Note:1. O.XI rule 13 is used when you want to inspect thedocuments.2. Section 68 is used when you want to use thedocuments as evidence but they are in the possessionof your opponent. If he refuses to produce them thenyou will use secondary evidence.Production and Impounding of DocumentsOrder XIII of Civil Procedure CodeAll parties have the duty to produce all documentsthey are going to rely upon as evidence and which arein their possession or power, at the first hearing ofthe suit. This is a requirement of law under Rule 1Order XIII.I such documents are not produced at the firsthearing then the Court may grant leave for itsproduction.Rule 2 prevents production of the documents at alater stage – which were supposed to be produced atthe first hearing.Note: The impoundment of documents does notmean admissibility of the documents The Court is merely concerned about thepreservation of those documents. They are not admitted at that stage as exhibitbut as a depository.Order XIII empowers the court at any stage of theproceedings to reject any evidence it considersirrelevant or admissible. 69
  70. 70. Upon admitting the documents as part of theevidence the court will have to endorse on thedocuments.Those documents which have been admitted asevidence must be returned to the person whoproduced them in court at the conclusion of the caseor if there is an appeal at the conclusion of theappeal.Settlement and Determination of Issues at the FirstHearingOrder XIVThe order relates to framing of issues.Framing of the issues is done in the presence of theparties 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 givenby Order XIV rule 1(2).Under this rule issues are material propositions ofeither fact or law or mixed fact and law which mustbe alleged by the plaintiff in order for him to have aright to sue and which has to be denied by thedefendant in order to constitute his defence.Issues arise-from the allegation by the plaintiff anddenials by the defendant, they constitute the pointsof dispute between the parties.THEREFORE Issues arise from the pleadings. 70
  71. 71. Whatever alleged/denied constitute an issue.SUPPLEMENTARY SOURCESIssues also may arise from the documents submittedby the parties to the court or by affidavit submittedby the party to the court.Also issues may arise from the oral examination atthe first hearing.WHO HAS THE DUTY TO FRAME ISSUES?Order XIV rule 1 provides that. It is the duty of thecourt to frame the issues at the first hearing.The duty is a mandatory duty. The court cannot shunaway from this duty.There are instances where parties will help the courtin framing the issues. Where the parties are veryclear as to what the real matter is between them theycan help the court frame the issues. In most caseswhere the parties are represented by advocates thenormal practice is for the parties to assist the court inframing the issues. The court has discretion to acceptor reject them.WHY FRAME ISSUES?Framing the issues has a very important bearing.Whether the outcome will be just or unjust it willdepend on the framed issues.1. It is the issues that direct the parties as to how theyare going to adduce their evidence and not thepleadings. The issues determine the relevance of theevidence. 71
  72. 72. 2. It is the issues which fix the case. A court cannotrefuse to make decision on an issue which has beenframed. The issues are framed to direct the court tothe nature of decision to be made even where theissue though framed but not pleaded.Odd Jobs V. Mubia [1970] EA 476.You can have an issue framed and not pleaded butthe court must decide on the issue.“On the point of that the court has no jurisdiction todecree on an issue nor been pleaded. The attitudeadopted by this court is not as strict as appears to beas it appears to be in India. In East Africa, the positionis that the Court may allow evidence to be called andmay base its decision on unpleaded issue if it appearsfrom the course followed at the trail that theunpleaded issue has in fact been left for the court fordecision.”The decision is supported by the case of NKALUBO V.KIBIRIGE [1973] EA 103.At page 105. The same issue arose and the Court ofAppeal reiterated the case of Odd Jobs.As per the court “While the general rule is that relief not foundedon pleadings will not be given, a court may allowevidence to be called and may base its decision onan unpleaded issue if it appears from the coursefollowed at the trial that the unpleaded issue has infact been left for the court for decision.”The case introduces the proviso that the freedom ofthe court to allow evidence to be adduced on an issuenot pleaded and to base its decision on such issue is 72
  73. 73. not extensive to an extent of allowing the court tomake a decision on a completely new course of actionwhich was not pleaded.See also1. Mgonja V. Kihiyo2. Gondij V. Caspar Air Charter Ltd. (1956) 23 EACA139; 140.3. Blay V. Pollard & Morris [1930] All ER (Rep)610,612.4. Joseph Marco V. Pascal Rweyemamu [1977] LRT 59In the case of Blay V. Pollard it was said “Cases mustbe decided on the issues on record and if it is desiredthey must be placed on the record by amendment.In the present case, the issue on which the judgedecided was raised by himself without amending thepleadings in my opinion he was not entitled to takesuch a cause.”In another case which was decided in 1932 by theHouse of Lords in Bell V. Lever Bros [1932] AC 161 at216. In this case the court ruled that a trial court may,with the consent of the parties, frame and decide onan issue which does not appear in the pleadings.FAILURE TO FRAME ISSUESFailure to frame issues is a procedural irregularitywhich may not be fatal to the proceedings. It will befatal to the proceedings when an appellate courtforms an expression that the failure has occasionedinjustices to one of the parties.CONSEQUENCE OF FAILURE TO FRAME ISSUES 73
  74. 74. Norman V. Overseas Motor Transport [1959] EA 131.In this case the trial court failed to frame issues. Onappeal the issue was whether the failure could befatal to the proceedings. The Court stated as follows: “The failure to frame issues is an irregularity, thequestion would appear to be whethernotwithstanding the failure to frame issues theparties at the trail knew what the real questionbetween them was, that the evidence on thequestion had been taken and the court dulyconsidered it.”According to the case – where the court hasfailed/omitted to frame issues, it is apparent that theparties knew what the dispute between them wasand had an opportunity to give evidence, which hasbeen taken into account by the court to make itsdecision. Such failure or omission will not be fatal tothe proceedings. It is fatal only to the proceedingsonly when it is apparent on the face of the recordthat the parties did not know what the real issue wasbetween them.JustificationThe framing of issues like practice of pleading isintended to avoid taking of the parties by surprise,and also, intended to assist the court inunderstanding the case.THE ART OF FRAMING THE ISSUES1. The first rule of the thumb – where there areboth issues of fact and law in the same suit and thedetermination of the issues of law may dispose of thesuit then the court must frame those issues first. 74
  75. 75. There is no use calling evidence where the law isclear. The issues of law will be preliminary issuesbecause their determination will dispose of the suit.This quickens the process of litigation.Issues of law are a matter of Judicial Notice. EgLimitation, 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 gotto be framed in the affirmative. E.g. in issues of law –whether the suit is time barred, whether the suit isnot time barred. In issues of fact – whether X is Y’slegitimate son / whether X is Y’s illegitimate son.3. Issues are not framed in argumentative way.Issues must be concise, precise and clear questions ofmostly not more than 8 words.AFTER FRAMING THE ISSUESOrder XIV rule 6 – where the issues are between theparties and the parties submit them to the Court withan agreement in writing that they will be bound bythe decision of the court on them the court will have3 things to do:1. To ascertain whether the agreement was dulyexecuted by the parties.2. To inquire as to whether the parties who haveexecuted the agreement have substantial interest inthe outcome of the case.3. To see if the issues framed are fit for trial. If the court is satisfied that the three thingshave been complied with then it willproceed with the trail of the issues only. 75

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