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

7. Shaukut Mahmood The Code of Civil Procedure 1908

8. Flemming Civil Procedure – America book.

9. Spry Civil Procedure in East Africa

II. Statutes

CIVIL PROCDURE

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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.

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

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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 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."

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.

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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.

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.

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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.

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 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.

4. Pecuniary Jurisdiction
Refer to Magistrates Courts Act, 1984.

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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.

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.
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

RES JUDICATA

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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.

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.

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.
In simple civil suit there is a single plaintiff and a single defendant while in a complex
suit there are various parties.

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Parties to a Civil Suit

1. Necessary 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.
Necessary parties are parties who must be before the court.

2. Proper 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 effected 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 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.

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 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.

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.
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

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 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 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.

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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 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.

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.

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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.

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.

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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 hinger
on the nature of the 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 defence. 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 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.”

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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

- The Third Party 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.

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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 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.

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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) 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, providing

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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

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.

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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:

“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

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 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 (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 to 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 is 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.

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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.

3. A summons must be accompanied by another document. Order V Rule 3 of

CPC - to enable the defendant knows 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 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.

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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. 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

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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.

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.

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.

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 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;

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.

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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.

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.

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 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.

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

Material facts:

They are those facts which lay out the cause of action.

Subordinate facts:

They 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

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 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 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.

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Example:

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

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.

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In the case of Knowles V. Roberts 1883 38 Ch. D 263 it was observed that courts
should not dictate to the 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.

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.

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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.

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.

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.

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- 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.

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

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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.

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.

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A rejection of the plaint under this rule does not operate by itself as a bar to the
plaintiff against filing 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.
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 Defence 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

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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. 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.

(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.

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 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 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.
Where the summons was to file a WSD there are 2 consequences:

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 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
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.

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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.

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.

36
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 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.
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.

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 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.
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 Ordinance
(JALO) 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.

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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.
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.

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.

39
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 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.

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.

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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.

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.

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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.”

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

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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….

…………………………………………
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.

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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.

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.

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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.

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.

45
 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.
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

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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.

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).

47
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.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 run 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.
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

48
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 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

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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 was the dispute between them 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. 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

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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.

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 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.

51
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 will be
pronounced against him in terms of order XV rule 4.

SUMMONING AND ATTENDANCE OF WITNESSES

There are two types:-
Witnesses to give oral testimony before the court, and
Witnesses who are summoned merely for the purposes of giving/producing
documents.
Generally
It is the duty of a party to civil proceedings to prove his case. In the course of hearing
we are applying 2 principles of civil litigation namely:
1. The principle of party prosecution.
2. The principle of Dispositive Election.

THE PRINCIPLE OF PARTYPROSECUTION

The conduct of the case is left to the party to the proceedings. They are the ones to
prosecute their own cases and to decide which step to take next. The court
participates in the proceedings as a passive arbiters.

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The principle operates very closely with the principle of PARTY INVESTIGATION as
opposed to the PRINCIPLE OF JUDICIAL INVESTIGATION.
Under party investigation it is the parties who are supposed to investigate and collect
evidence of their own case. The Court is ignorant of the case. Refer THE NATURE
OF ADVERSARIAL SYSTEM.
Therefore it the party himself who will know the nature of the evidence he will use
and the sources thereof.

THE PRINCIPLE OF DISPOSITIVE ELECTION

It relates to what the party can and cannot tell the court.
The party has a choice of whether he should tell the court anything or not thus he has
the election of what to say and what not to.

WHERE THE WITNESS REFUSES TO APPEAR

The court will assist the parties to compel the witnesses to appear. Order XVI has the
procedure of securing the court assistance.
Rule 1 Order XVI provides that at any time after the suit has been instituted the court
may issue witness summons, at any stage of the case the court may issue
summonses against persons who are necessary to appear before it to produce
documents etc. These summonses are issued on application by the parties who
intend to use the witnesses.

Where the witness does not appear even after due service of the summons the court
will issue a proclamation will be affixed at the door of the witness or at any other
conspicuous place.
Order XVI rule 10 (2).
The court may order attachment of his property and when the witness appears the
attachment will be raised provided he pays the court broker.
Another alternative is that the Court has got discretion to issue arrest warrant with or
without bail.
The court may order the witness to be placed under custody but will the witness give
evidence in favour of the party who has summoned him?

WITNESSES OF THE COURT

Order XVI allows the court to play an active role in the proceedings and therefore it is
not totally true that courts in TZ are operating typically under adversarial system.
A witness may not be desired by the party but the court may summon him. Order XVI
rule 14. Under this rule the court may on its own motion and at any stage of the
proceedings summon a witness who was not summoned by the parties. This

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happens especially when the court requires eg expert opinion. Eg Accountant in
fraud cases, medical doctor, engineer etc.
Refer Joseph Marco V. Pascal Rweyemamu [1977] LRT 59
Thobias Zenda V. Herman Zenda [1977] LRT 23
In the case of Joseph the court stated that where an additional witness is summoned
by the court under O.XVI Rule14 such witness becomes a court witness and not a
witness for any party to the dispute.
The case of Thobias acknowledges that the court has power to summon an
additional witness if it thinks it necessary so to do.

ADJOURNMENT OF HEARING
Order XVII

Under Rule 1 (1) the court has power to adjourn the hearing to a future date. It is a
discretionary power which has to be exercised judiciously. There must be sufficient
reasons for adjournment.

Once evidence is taken the hearing is supposed to continue from day to day until all
the witnesses in attendance have been examined unless the court sees it necessary
to adjourn the hearing till the next hearing.

Agreeing on Adjournment
See:
1. Shabani Mbaga & Another V. Karadha Co. Ltd. [1975] LRT 13 (HC)
2. A.S. Masikini V. George Mbugus [1976] LRT 62 (CA)
In the two cases advocates for both parties filed letters of consent for an
adjournment.
Per Mustafa J., “A consent letter filed by the parties wanting to remove a case from
the hearing list cannot automatically remove the case from the hearing list no more
than an application for an adjournment or notice of an intention to apply for an
adjournment of a case. An adjournment cannot be granted as of right but can only be
granted for sufficient course. It therefore involves the exercise of discretion by the
court and this must be exercised judiciously. Once the pleadings are closed in a case
it is the duty of the court to dispose of the case with reasonable dispatch.”

The business of this court is subject to the vagaries of the business activities of
advocates engaged by the litigants concerned, although a consent letter might be a
factor which may be taken into consideration in an application for an adjournment.
Such consent cannot almost certainly result in adjournment.

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From the 2 cases above we have 3 propositions:-
1. No adjournment can be opted at the instance of the party to the
proceedings except where the circumstances are beyond his control.
2. The engagement of an advocate in another court is not a ground for
adjournment.
3. Illness of a lawyer cannot be a ground for an adjournment when it is found
as a matter of fact that a party who represented by the advocate had
enough time to engage another lawyer.

The period within which the adjournment should be granted depends on the
decision of the Court.

Where the parties do not appear on the date of hearing after adjournment it is
the discretion of the Court to further adjourn or terminate the case.

TYPES OF ADJOURMENT.
1. Those which are granted for specific date.
In this the court appoints a specified day on which to proceed with the
case.
See Order XVII rule 2.

2. Adjournment sine die.

Adjournments sine die are those which do not provide for a specific
date. The matter is simply adjourned unless certain actions are taken.
The party seeking hearing has got to apply to the court for fixing of the
date of hearing.

Here there are two positions:-

1. Where adjournment lasts for one year

If the plaintiff does not apply for hearing date after one year it is the duty of the
court to issue a notice to the plaintiff to show cause why should not the suit be
struck out.
A general adjournment should not last for more than a year. If the plaintiff is
serious about his case he will not stay for more than one.
2. In any other case where there has been an adjournment and the case
has stayed pending for a period of three years the court has the duty to strike
it off without giving the plaintiff any notice.
Refer Rule 5 0.XVII. (Striking out for lack of prosecution).

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When a suit is struck out under this rule the plaintiff may bring a fresh
suit subject to the Law of Limitation.

PROCEDURE OF HEARING A SUIT

Order XVIII
The Order enacts the principle of Orality of Proceedings as distinguished from
Pleadings.
It also enacts the principle of MEDIACY as opposed to IMMEDIACY. The
court must see the parties and hear the witnesses. See the provision of Order
XXVI (Commission to examine witnesses).

What is the Order of Hearing?

As a general rule it is the plaintiff who has the right to begin unless the
defendant admits the plaintiff’s allegations but gives counter-allegations in
which he will have to begin.
The person on whom the burden of proof lies is the one who has the right to
begin.
He begins by giving an opening address which comprise of the general
overview of his case and will tell the court the way he will proceed discharging
his burden of proof.

He will in the opening speech tell the court in summary the nature of evidence
and witness he has. In practice it is not always the case.
Opening speeches are rarely given.

As a practitioner you should see whether there is an ideal situation for making
a speech in the court.

After the opening address

The Plaintiff gives his address. It is at this stage he can give evidence on oath
and call his witnesses one by one.

After the Plaintiff has stated his evidence then the defendants gets a chance
to state his case in open audience and gives his evidence.
Immediately after this the defendant has the right to address the court on all
the evidence. This is normally called the Final Submission.

Then the Plaintiff has the right to reply.

It is the plaintiff who begins and it is him who concludes.

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Technical Hearing
Under the Criminal Procedure Act section 230 the court has to rule as to
whether there is a prima facie case or no case to answer
Criminal case can be concluded even before the accused talks BUT under the
Civil Procedure Code there is no provision which talks about prima facie case.
In East Africa there is no law which talks of no case to answer in civil
litigations as in criminal litigations. Therefore there is a lacuna in our law. We
have to go to the provisions of section 2 of the Judicature and Application of
Laws Ordinance (JALO) cap 534. (22nd July 1920). Under this provision the
procedure used in England should apply. The provisions bring the procedure
under Common law of no case to answer.
The procedure to be followed for no case to answer in civil litigations in
Tanzania according to case law is different from that of criminal litigations.

In criminal proceedings once the court has established that there is no case to
answer the court cannot compel the accused to say that there is a case to
answer.
What is the Submission of No Case to Answer in Civil Proceedings?
See Ramsden V Ramsden [1954] All ER 623.
Vye V. Vye [1969] All ER 29
In the case of Ramsden it was stated
“There are two sets of circumstances under which defendant may
submit that he has not case to answer. In the one case there may be a
submission that accepting plaintiff’s evidence at its value no case has
been established in law and in the other that the evidence led for
the plaintiff is so unsatisfactory or unreliable that the court should find
that the burden of proof had not been discharged.

Submission of No Case to Answer in Civil Cases

Can a defendant, at the close of a plaintiff’s case submit in law that there is no
case to answer?
Refer Hon. JK’s decision in MWALIMU PAUL JOHN MHOZYA V. THE AG HC
Civil Case No. 206 of 1993 DSM Registry; citing the case of Daikin Air-
conditioning (EC) V. Harvard University (DSM) Civil Appeal No. 21 of 1976.
He held: “A submission of no case to answer in a civil case stands on the
same footing as a submission of no case to answer in a criminal case, save

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 that there is a difference in the standard of proof. What then is the test to be
applied when such a submission is made? As I understand the law, when the
dismissal of the plaintiff’s case on the basis that no case has been made out is
prayed for, the court should not ask itself whether the evidence given and/or
adduced by the plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a court, applying its
mind reasonably to such evidence, could or might (not should or ought to) find
for the plaintiff. The submission of no case to answer cannot be upheld if there
is sufficient evidence on record on which a court might make a reasonable
mistake and enter a judgment for the plaintiff. Whereas the test to be applied
at the close of the defendant’s case is what ought a reasonable to court to do?
The one to be applied on determining the validity or otherwise of a submission
of no case to answer is what might a reasonable court do? :
See: Supreme Service Station (1969) (Pvt) Ltd v. Fox and Goodridge (Pvt) Ltd
1971 (1) RLR 1. The latter test I have described is the one I must apply in
determining Mr. Mwidunda’s submission in the matter now before me.”

EFFECT OF A SUBMISSION OF NO CASE TO ANSWER

A submission of No-Case-To-Answer does not have an automatic effect of
suspending the proceedings until the decision is made on whether a prima
facie case has been established or not. It is the duty of the court to put the
defendant to an election. The defendant will have two options:
1. He may rely totally on the submission of no case to answer in which
case he court will have to make a ruling; or
2. He may submit that he does not have a case to answer and yet
produce evidence against the plaintiff’s allegations.

Once the Court addresses its mind to submission of no case to answer and then
overrules that submission then it proceeds immediately giving a judgment basing on
the evidence given instead of adjourning the hearing.

The procedure has been discussed in the following cases:

1. Alexander V. Rayson [1936] 1KB 169
2. Parry V. The Aluminum Corporation Ltd. [1940]….162 LJ 236
3. Laurie V. Raglan Building Company [1942] 1KB 152
The three have one thing in common. They are authority for the proposition that
where a submission of no case to answer is given by the defendant, it does not mean
that by the defendant submitting a no case to answer ipso facto loses his right to call
evidence when his submission is overruled. He loses his right to call evidence only

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when he definitely elects not to call evidence. Such an election can be made either
expressly or impliedly.

See the case of DAIKIN AIR CONDITIONING (EA) LTD V. HAVARD UNIVERSITY
(HC) Per Samatta J, Civil Case No. 21/76 Unreported. This case adopted the three
cases cited above.

HEARING CONTINUES
All witnesses have to be examined in open court under the personal direction of the
magistrate or the judge. The evidence has to be recorded in the language of the
court in the narrative form except where the party considers that a particular question
or answer is important and also the court considers it so.
When certain questions are objected to by one party but allowed by the court the
reasons for allowing them must be recorded.
The court also has the duty to record the impressions on the demeanour of the
witnesses before it i.e. Judge’s Notes.
When a witness has been released the court has power under order XVIII rule 12 to
record the examination. When the magistrate fails to conclude the hearing the
evidence he has recorded may be used by the subsequent magistrate.
But in the case of Thobias Zenda V. Herman Zenda [1977] LRT n.23 it was stated
that – where the decision depends on the previous magistrate’s observation of the
demeanour of the witnesses – the correct position should be concluded by the same
magistrate or the trial starts afresh before a new magistrate.

AFFIDAVITS
Affidavits are written statements of evidence which are sworn before a Commissioner
for Oaths.

Mainly they are not used for the main suit because of the fact that in the main suit the
principle of orality applies.

Refer Order XLIII Rule 2 of the Civil Procedure Code.

Although affidavits may be accepted instead of oral statements, the opponent has a
right to demand personal appearance of the witness for cross-examination but this is
within the discretion of the court.

The Person who swears the affidavit is called a deponent.

General Rule:

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All civil proceedings must be commenced by a plaint and evidence must be viva voce
i.e oral.
However the court has discretion to allow evidence in writing. When the court allows
that evidence to be in writing it has to be by way of an affidavit.

Note:
1. That affidavits save time.
2. There is a disadvantage of the court not observing the demeanour of the
witness.
3. Affidavits are evidence and they should therefore follow the rules of evidence.
Nothing is inadmissible in oral evidence that can be made admissible in
affidavits.

GENERAL RULES OF DRAFTING OF AFFIDAVITS

1. Affidavits are Court Documents. Like any other court document an affidavit
has to have a TITLE i.e Name of the Court, Parties, Nature of the
Proceedings and their Number.
2. If the deponent is a Christian there may be a clause to make an oath. In any
other religion the deponent solemnly affirms.
3. All affidavits have got to be sworn in the first person. Nobody can swear an
affidavit on behalf of another. This will be hearsay evidence. It should be
either “I” or “WE”.
4. All statements of fact in an affidavit must appear in separate paragraphs
which must be consecutively numbered.
5. An affidavit should not contain hearsay evidence EXCEPT IN
INTERLOCUTORY APPLICATIONS where by virtue of Order XIX rule 3 a
deponent may swear on certain facts on the information in belief of that –
these can be disclosed.
6. Affidavits as statements of evidence are not submissions and therefore they
should not contain argumentative material but statements of fact.
7. All affidavits have to be signed by the deponent in the presence of a
Commissioner for Oaths. The signatures must be accompanied by the date.
The left hand corner of the affidavit is known s the Jurat. ie “SWORN or
AFFIRMED AT DSM by..”
8. An advocate who draws an affidavit for his client cannot attest it by himself.
He must find another advocate to attest it.

CONSEQUENCES OF FILING A DEFECTIVE AFFIDAVIT

A defective affidavit is the one which breaches the rules relating to the drafting of
affidavit.

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A defective affidavit is generally rejected by the court. However, superficial defects
can be allowed to be rectified eg by removing the offensive paragraphs and leave the
clear ones.

See:
1. Project Planning Consultants V. Tanzania Audit Corporation [1974] LRT n. 10
- It deals with defective affidavits and what the court will do with defective
affidavits.
- It was also held that an advocate who draws an affidavit for his client
should not attest it himself.

2. Mtaki V. January Kapembwa [1976] LRT n. 7

Where an affidavit is made on information it should not be acted upon unless
the sources of the information have been disclosed.

3. Margovind Savani V. Juthalal Velji Ltd. [1969] HCD 278

The case gives good definitions of an Affidavit and a Statutory Declaration
“Both affidavit and Statutory Declarations are written statements solely made on oath
as true facts on the knowledge, information and belief of the declarant. In affidavits
one must distinguish between the facts that are true to his own knowledge from those
which he thinks or believes are true to his information and belief and in the latter
group he must also disclose the sources of his information as well as his grounds for
belief.”
The same position was held in the case of Thseen-sthlunion Export & GMBH V. Kibo
Wire Industries Ltd. [1973] LRT n.54.

RECENT JUDICIAL DECISIONS

PLEADINGS:
STATEMENT OF DEFENCE:
NOTCO (TANZANIA) LIMITED V. FREIGHTWINGS INTERNATIONAL LTD.
High Court Civil Case No.293 of 1988 DSM Registry (Unreported)

Mkude J,
Cited KASHIBAI V. SEMPAGANA (1962) EA 16 per Bennet J, in which the defendant
was ordered to furnish particulars of his defence that “the plaint was bad in law and
did not disclose any cause of action.” The learned Judge quoted from the A.I.R.
Commentaries (7th Edition) Vol. II pg. 2182 the following passage relating to what
should be pleaded in written statement of defence which raises a point of law:

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“Where the defendant contends that the suit or application is misconceived he must
specify or particularize why he contends that the suit or application is misconceived.
If he relies on any facts for those purposes he must state those facts in his pleading,
if it is merely the position in law which he relies on, he must set out with sufficient
particulars the position in law upon which he ultimately bases his submission.”

PLEADINGS & RELIEFS

MICHAEL LOSINA V. MARCEL LOSINA
High Court Civil Appeal No. 7 of 1986 Dodoma Registry
Masanche J,
The first legal principle in civil cases is that parties to litigation are bound by their
pleadings and that a court of law may not depart from the agreed issues unless there
is good cause and unless evidence is led to prove the necessity for such departure.
Spry V.P said in the case of Nkalube V. Kibirige [1973] EA at page 105 that:
“It is true that this Court has said, more often than once, that while the general rule is
that “relief not founded on the pleadings will not be given (Per SINCLAIR V.P in
Gaudy V. Gaspair (1956) 23 E.A.C.A 139 at 140), a court may allow evidence to be
called (emphasis supplied) 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 to the court for decision”. (Per LAW J.A in Odd v. Mubia [1970] EA 476 at
p.478).
See: Order VI Rule 17 CPC – Amendment of pleadings.

But it was cautioned by the Court of Appeal, in the case of Eastern Bakery V.
Castelins [1958] EA 461 and quoted with approval by Onyiuke J, in the case of Shivji
V. Pallegrini (1972) HCD n.76 where Onyiuke J, said:-
“As a rule amendments to pleadings should be freely allowed if they can be made
without injustice to the other side. The powers of amendment should not be used to
substitute one cause of action for another or change an action into another of a
substantially different character.”

See also the case of BISHOP H. N. SARYA & 2 OTHERS V. SAIMON BUTENG’E &
16 ORS
HC Civil Case No.68 of 1989 Mwanza Registry per Masanche, J;

Citing Chitaley in the Code of Civil Procedure, at page 1304

“The main consideration to be borne in mind in exercising the discretion (to
amend or not to amend) are that the rules of procedure have no other aim
than to facilitate the task of justice, that multiplicity of suits should be avoided
and that the interests of substantial justice should be advanced. Thus a court

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 should order for the amendment of a pleading where there has been a clerical
error, or a bona fide wrong description of property or where there has been
mistake of law or fact, provided there is no injustice to the other side which
cannot be compensated by the award of costs.”

Masanche J adds;

“It is gratifying to note that in the recent case of General Tito Okello v.
Sospeter Awiti Civil Appeal No.13 of 1990, of the Court of Appeal, Dar es
Salaam Registry, Makame J.A has advised that where there are errors of
oversight, such as the one here, of defendants not signing the written
statement of defence, or, of forgetting to attach an annexture to the pleadings,
proviso to Order 7 Rule 110 of the Civil Procedure Code 1966, as introduced
by GN, No.228 of 22/10/71 should be used. The proviso reads:-

“Provided that where a plaint does not disclose a cause of action or where the suit
appears from the statement in plaint to be barred by any law and the Court is
satisfied that if the plaintiff is permitted to amend the plaint, the plaint will disclose a
cause of action, or as the case may be, the suit will cease to appear from the plaint to
be barred by any law, the Court may allow the plaintiff to amend the plaint subject to
such conditions as the costs or otherwise as the Court may deem fit to impose.”

JUDGMENT & DECREE

Judgments and decrees are covered by O.XX rule 1 CPC.
At the conclusion of the hearing the court will pronounce judgment. Decree follows
the judgment.

Definition of judgment is found under Section 3 of the CPC.

A judgment is a statement of the decision of the court at the conclusion of the hearing
of the case plus the reasons for such a decision of the court.

In the judgment the court is supposed to address its mind on the issues, evidence
and the provisions of the law which govern that dispute.

There are however certain circumstances under which the judgment can be dictated
to a Stenographer.

TYPES OF JUDGMENT

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There are two types of judgment i.e. Judgment in Rem and Judgment in Persona
1. Judgment In Rem
It is a judgment which attaches to the thing. It is a judgment against
the whole world.
It relates to one’s absolute right.

2. Judgment In Persona
It is a judgment which attaches to a person. It relates to the right of
that person only but it does not include other better rights invested
in other persons.
For example – Land lord & Tenant/Trespasser.
They are rights inter se and the judgment should be in person.

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