Professional Documents
Culture Documents
TABLE OF CONTENTS
CIVIL PROCEDURE
Readings
I. Text Books
II. Statutes
CIVIL PROCEDURE
Civil Procedure Is a procedure of litigation before the
Courts in civil matters. It does not give any litigant a right
but it enacts a procedure through which a right can be
obtained.
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.
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. Workmens Compensation Ordinance
which vests exclusive original jurisdiction over matters
relating to the Ordinance to the District Court; and the Rent
Restriction Act(REPEALED & LAND ACT CAP 113 IS IN
EXISTANCE) which grants exclusive original jurisdiction over
matters relating to landlord and tenant to the Housing
Tribunal.
3. Concurrent Jurisdiction
Courts are said to exercise concurrent jurisdiction when they
can exercise original jurisdiction over the same matter.
4. Pecuniary Jurisdiction
Refer to Magistrates Courts Act, 1984.
All courts except the High Court are courts of limited
jurisdiction.
Note:
-1- The Magistrates Courts Act provides for unlimited
jurisdiction over Islamic & Customary Law to Primary Courts
but the Act does not provide specifically
for
exclusive
jurisdiction over civil matters related to Islamic
and
Customary Law.
-2- Under the MCA all civil proceedings in respect of Islamic
and Customary
law must be commenced in primary
court unless the Republic or the President is a party or the
High Court has granted leave to the parties to
otherwise
commence the civil proceedings.
-3- A primary court has no jurisdiction to civil case unless
customary law is a applicable or the proceedings are for the
recovery of civil debts of interest due to the United Republic
of Tanzania or Local Authorities.
Authorities
1. Francis Mwijage v Boniface Kabalemeza (1968) HCD n.
341
2. Sheikh Kassim Suleman v Ayubu Kamgila (1968) HCD n.
79
3. Walumu Jilala v John Mongo (1968) HCD n. 81
4. Edward Kalemela v Muyebe Rwenjege (1968) HCD n. 80
2. RES JUDICATA
Is a Common Law doctrine included in the Civil Procedure
Code. It has two elements Res meaning matter and judicata
meaning already adjudicated.
Res judicata bars subsequent litigations involving matters
substantially and directly the same between the same
parties or parties claiming on the same thing.
-Res Judicata applies only to civil litigations.
The doctrine of Res judicata is based on two well known
maxims of Common law.
1. interest reipubicae est ut sit finis litium i.e. it is in the
public interest that there be an end to litigation.
2. nemo debet bis vexari pro aedem causa i.e. no one
should be in jeopardy twice on the same ground.
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.
10
11
12
Under Which
Defendants?
Circumstances
Can
You
Join
the
14
Authorities
i)
V.
MANGALJI
&
ii)
15
16
that
he
is
entitled
to
17
NORTH
Ch. D.261
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.
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.
18
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
19
20
High
21
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
22
23
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.
TYPES OF SUMMONS
There are two types of summons.
1. Summons to appear
2. Summons to file a Written Statement of Defence
(WSD)
25
APPEARANCE
Appearance by the defendant means the defendants
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
26
27
required
to
sign
on
the
original
summons
as
acknowledgement and return the same to the court.
The
defendant may write a letter to the court to acknowledge
receipt of the summons.
Service outside the jurisdiction of the Court but
within Tanzania
Order V Rule 22 CPC
The court which issues a summons to the defendant who
resides outside its jurisdiction sends the original summons
and a copy to the court having jurisdiction in the area the
defendant is known to reside. e.g. The RM in DSM sends
summons and a copy to the RM in Mbeya.
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
29
ii)
iii)
30
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.
Functions of Pleadings
Pleadings serve three purposes:
i)
31
ii)
iii)
Note:
1. Only matters which are in dispute between the
parties should be the subject of decision by the court.
2. The purpose of pleadings is not to set out the whole
case. Pleadings are not evidence. They comprise only of
the allegations to be supported by evidence.
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.
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
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.
34
E.g.
VERIFICATION
I. XY, being the plaintiff in the above named suit do hereby
state that all that is stated in paras 1 to 5 above is there to
in the best of my own knowledge, what is stated in paras 6
and 7 is there to the best of my belief and what is stated in
para 8 is there to the information supplied to me by the
Dean of Students.
DATED at Dar es Salaam this.day of November, 1988.
.
PLAINTIFF
35
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.
36
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.
37
38
each
paragraph.
plaintiff
The
will
second
be
described
paragraph
will
in
his
own
contain
the
39
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.
40
name.
-
The capacity
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
41
42
43
II. Where it appears to the court that the claim is undervalued. After the court has given power to the plaintiff to
value it properly and the plaintiff has declined to do so.
III. Where on the face of the plaint the suit appears to be
barred under any law. Eg. The Law of Limitation Act,
Security of Employment, res judicata, res sub judice, etc.
The flexible approach of courts of Tanzania has resulted into
the amendment of rule 11 by GN 228/1971. Under the
amendments the Chief Justice used his power of making
rules under section 81CPC to add a proviso to rule 11 which
states: Provided that where the court is of the opinion that,
by allowing an amendment the plaint will disclose a cause of
action, the court may order an amendment instead of
rejecting the plaint. The implication is that
When the court rejects the plaint it must state that the
reasons for so doing as this order are appellable.
Rejection of a plaint is not a decision of the case on merits
and therefore the doctrine of res judicata will not apply Rule
13 Order VIII.
A rejection of the plaint under this rule does not operate by
itself as a bar to the plaintiff against filing a fresh suit on the
same subject matter and of the same parties.
44
45
to
litigation.
46
shorten
the
time
of
47
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.
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.
48
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 counterclaim the court may order separate trials when it is in the
opinion of the court that the plaintiffs claim and the
defendants 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.
49
50
Limitation
11.
12.
13.
14.
Mistake
15.
16.
Payment
51
17.
Release
19.
Rescission
20.
Remoteness of Damages
21.
Res Judicata
22.
23.
Set-Off
24.
Tender
25.
Undue Influence
26.
Duress
27.
28.
Waiver
29.
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
52
53
54
55
and
this
must
be
recoverable
56
of Equity in TZ.
2.
57
58
59
Procedure
in
the
RMs
and
DMs
Court
(Subordinate Courts)
- Where summons issued was for producing WSD the court
may proceed ex parte.
- Where summons issued was summons to appear the court
may enter judgment.
Ex parte procedure is penal; it should be exercised where the
defendant refuses intentionally to appear or to submit to the
jurisdiction of the court.
It must be proved that the summons was duly served.
Summons to appear is a summons for direction both in the
High Court and in the Subordinate Courts.
Summons for disposal of the suit constitute the first day of
hearing and it requires no proof like in the High Court where
there should be ex parte proof.
Where the court is not sure whether the summons was duly
served it will issue a fresh summons.
60
61
62
63
the
parties
are
really
in
controversy
(litis
64
Functions of Interrogatories
1. They enable the party presenting them to know the
nature of the opponents 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.
party
may
tamper
with
his
opponents
65
(Plaintiffs)
pursuant
to
the
order
herein
datedday of 19.
Did you
Were you.
Was it..
If not werent you
(Set out the interrogatories in the form of concise questions,
each interrogatory to be set out in a separate paragraph
and numbered consecutively.)
66
of interrogatories.
have
67
the
party
interrogating
considers
the
answers
68
made
the
discovery
to
produce
certain
69
70
When you admit you pay less costs because you dont put
anybody into trouble.
Rule 1 Order XII enables the party to the proceedings admit
the truth of the part of the opponents 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)
71
ADVOCATE
PETITIONER
TO AB
C/O XY ADVOCATE
DSM
DRAWN BY
CD ADVOCATES
DSM
72
FOR
as
evidence
but
they
are
in
the
73
74
75
76
77
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
on
an
unpleaded
78
79
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.
80
whether
81
82
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.
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.
83
84
85
86
87
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
88
to
the
proceedings
except
where
the
89
90
any
an
Rule
0.XVII.
(Striking
out
for
lack
of
prosecution).
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
91
of
Order
XXVI
92
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
93
England
should
apply.
The
provisions
bring
the
In
the
case
there
may
be
for
the
94
95
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
plaintiffs allegations.
Once the Court addresses its mind to submission of no case
to answer and then overrules that submission then it
96
97
98
Although
affidavits
may
be
accepted
instead
of
oral
99
as
statements
of
evidence
are
not
100
Planning
Consultants
V.
Tanzania
Audit
101
(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
102
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
103
104
105
106
TYPES OF JUDGMENT
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
107