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

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 CIVIL PROCEDURE

Civil Procedure Is a procedure of litigation before the Courts in civil

matters. It does not give any litigant a right but it enacts a procedure
through which a right can be obtained.

It is a Procedural law unlike Substantive law which gives a right to a

litigant.

Functions of Civil Procedure

It helps resolve the arguments presented from the parties. Civil
Procedure helps in making availability of right clear through
procedural rules.
Procedural law assures you that the rights given by the substantial
law are obtainable.

The Civil Procedure Code of Tanzania is divided into two parts:

1. The Main Act
2. The Schedules

In Tanzania the Schedules are regarded as part of the Act – which is a

departure from the general rule of interpretation that, neither
schedules nor preambles are part of the Act.

Construction of the Civil Procedure Code

Since Civil Procedure is adjectival law and a way of facilitating

administration of justice or rather the way through which a right is
obtained, the provisions of Civil Procedure Code should be given the
literal meaning.

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.

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IRON AND STEEL WARES V C.W.MARTY & CO. (1956) 23 3ACA
175, 177
Procedural statutes must be interpreted liberally. This position is
illustrated in KENDAL V HAMILTON (1878)4 AC 504 at page 525:
“Procedure is but a machinery of the law after all, the channel and
means whereby is administered and justice reached. It strangely
departs from its proper office when in place of facilitating it is
permitted to obstruct and even extinguish legal rights and thus made
to govern where it ought to subserve.”

Procedural Statutes should not be construed in such a technical way

that will make the court fall to do substantial justice between the
parties.

Preliminaries to Litigation
In any litigation of a civil nature there must be two things co-existing:
1. Parties 2. A dispute

NB: Not all disputes go to court but only those which are contested.
The claimant must present a demand note upon the prospective
defendant – in East Africa it is called a Letter of Demand.
A LETTER OF DEMAND: Is a letter presented to the prospective
defendant by the prospective plaintiff laying down the claims by the
prospective plaintiff 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

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 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.

What is Jurisdiction?
It 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.
Dr. Avtar Singh in Civil Procedure Pg. 62 defines jurisdiction as the
authority by which court has to take cognizance and decide matters
that are brought before it or presented in a formal way for its
decision.
On the other hand Black’s Law Dictionary defines jurisdiction as a
court power to decide case or issues, under Page 2490.
Refer the case of Anisminic Case – which is just persuasive for
Tanzania.

TYPES OF JURISDICTION

1. Territorial Jurisdiction

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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.

The High Court

In Tanzania there is only one court having jurisdiction over the whole
country, this is the High Court of Tanzania.
The High court of Tanzania has jurisdiction over the whole mainland
subject to the appropriate registry, as per Article 108(2) of the
Constitution of the United Republic of Tanzania. Moreover Rule 5(1)
of the High Court Rules act as directive rule in case one whish to sue
that is proceedings can be instituted in the High Court Registry at
Dar es Salaam, or district registry where the Cause of Action arose or
where defendant resides. However this section is mere directive
failure to adhere to it is not that fatal.
Refer to the Case of Ahmed Ismail V. Juma Rajabu [1985] TLR 204

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. 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.

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.
As per Section 5(1) of the Magistrates’ Court Act, 1984

District Court
Territorial jurisdiction of a District Court is the boundaries for which
the district is established.
As per Section 4(1) of 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.

Primary Courts
Territorial jurisdiction of Primary Court is limited to the district
where it is established. As per Section 3(1) of the MCA
E.g. The Primary Court Manzese is the Primary Court of Kinondoni
at Manzese.

Court of Appeal and Special Constitution Court

The two courts have jurisdiction on all matters arising in whole
Tanzania.

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, for example land matters are to be determined by courts
established by Cap 216 R: CE 2002, especially under Section 4(1) of
the said Act. Again all matters relating to the labour disputes are to
be settled by Labour institution established in Labour Institutions
Act, No. 07 of 2004 such institution is CMA.

3. Concurrent Jurisdiction
It is a situation whereby more than one court of different grade has
equal power/ authority to determine civil cases of particular nature.

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Courts are said to exercise concurrent jurisdiction when they can
exercise original jurisdiction over the same matter.
It is being provided for under Section 63(1) of the MCA, in Tanzania
under Concurrent Jurisdiction all Courts except for the Court of
Appeal and The Special Constitution Courts have original
jurisdiction in the matters relating to matrimonial proceedings. As
per section 77 of LMA, however the requirement is that the “suit
must be instituted in the court of the law grade which has
competence of tot determine the issue”.
In the case of Bikubwa Issa Ali V Sultan Mohammed Zahran 1997
TLR 295 (HC) Kannonyele, J inter alia held “…Where jurisdiction was
conferred concurrently on courts and on tribunals, proceedings
should normally and preferably be commenced in the one placed
lower in the hierarchy but that was not to say that the other was
thereby deprived on jurisdiction in the matter”.

4. Pecuniary Jurisdiction
Pecuniary simply means value in money (monetary value) whereas
pecuniary jurisdiction refers to the powers of the courts to determine
civil cases of certain value of the subject matter of the case. Section 6
of the Code prohibits courts from entertaining matters which subject
matters exceed their local monetary limits/values. Generally
pecuniary jurisdiction is being provided by two statutes namely; -
Ward Tribunal act, and the MCA Cap 11 R: E 2002 as amended by the
Written Laws Miscellaneous amendment Act No. 25 of 2002.

A: Primary courts
(i) General division= Tshs. 3m-10m
(ii) Commercial Division
 Not more than 20m for immovable properties
 Not more than 15 m for movable properties.
As per Section 4(1) of the Rules of the Courts of Primary, District and
Resident Magistrate courts rules of 2008.

B: District and Resident Magistrates Courts

(i) General Division Tshs. 10 up to 100 millions
(ii) Commercial Division, This is being provided for under
Section 40(3), (A), (B) of The MCA as amended by the

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 written laws miscellaneous amendment Act No. 04 of
2004
 Immovable property any amount from Tshs.
20m up to 50m.
 Movable property any amount fromTshs.15m
up to 30m

C: High Court
(i) General Division, from Tshs. 100m and above
(ii) Commercial Division, Rule 2 of The HC commercial
Division rules of 2012
 Immovable property, at least Tshs. 100m
 Movable property, at least Tshs. 70m
Refer to the case of MS Tanzania China friendship textile vs. our
ladies of Usamabara Sisters Civ. App No.84 of 2002, CA DSM.

(5) Original jurisdiction

This refers to the powers of the civil courts to adjudicate matters for
the first instance. It is the power of the court to determine the matters
from the beginning to its finality. This power is given to all courts in
Tanzania except for the Court of Appeal, that is Primary Court,
District Court, Resident Magistrate Courts, High court and Special
Constitution Court all has said powers.
However this is not automatically conferred to District Courts, in this
Court the powers are vested to District Magistrate and not to the
court. Section 40 of the MCA gives such powers to CJ to give DCM
powers to entertain civil cases. This was also said in the case of John
Agricola vs. Rashid Juma 1990 TLR 1.

(6) Subject Matter Jurisdiction

THINGS TO CONSIDER BEFORE INSTITUTION A SUIT

1. Subject matter for the suit – whether movable or immovable.

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 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

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

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 1. There must exist two suits – one finally and conclusively
determined and another pending.
2. These suits must be before courts of competent jurisdiction.
3. These suits must have been between same parties – or parties
claiming under the same title.
4. The matters that are directly and substantially in issue between
the parties in the pending suit must have also been directly and
substantially in issue in the previously decided suit.

Effect of the doctrine

A person cannot raise an allegation which has previously been
decided against him by a court of competent jurisdiction. A
Judgement may be assailed by an appeal where a right of appeal
exists, or by applying to have the judgment set aside where it was
obtained fraudulently or collusively.
See: R.V. Hatchings (1881), 6 QB 300.

3. PARTIES TO SUIT
In every civil litigation there has to be a minimum of two parties
opposing each other in respect of a dispute. In other words there has
to be a lis inter parte with litis contestatio

The two parties to a suit are PLAINTIFF and DEFENDANT.

Plaintiff is the party who has a right to relief against the other party
(defendant). The right of relief should not be a moral right but a legal
right.
In simple civil suit there is a single plaintiff and a single defendant
while in a complex suit there are various parties.

Parties to a Civil Suit

1. Proper Party

Is that party without whom no effective decree can be issued? His

presence is necessary because the court must either give a relief or a
decree against him. Proper parties are parties who must be before the
court.

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2. Necessary Party

Is the one whose presence in court is desirable but whose absence

does not render the decree ineffective Eg. In nuisance suit over a flow
of sewage – a decree against the tenant can be affected through the
landlord. The tenant is therefore a proper party because he will bring
the landlord - he is therefore not a necessary party but a proper party
and the landlord the necessary party.
The person who will be compelled to do what is sought is the
necessary party.

JOINDER OF PARTIES

General Principle: The CPC does not compel a party to combine the
parties in pursuance of their rights nor does it prohibit joinder of the
parties.

Joinder of Plaintiffs
Order 1 rule 1 CPC provides – More than one plaintiff can sue against
one or more defendants if the right to relief claimed by them arises
out of the same act or transaction or a series of acts or transactions
and if separate suits were brought, common questions of law or fact
may arise.

Refer: Yowana Kahere V. Lunjo Estates Ltd [1959] EA 319

Kanani V. Desai Uganda High Court Civil Case No. 469/1953

Points to Consider In Joinder of Plaintiffs

These are just practical and not legal considerations
1. Parties (co-plaintiffs) must have common interests. Where it is
likely to differ in interests it is advisable that each plaintiff
should sue separately.
2. Co-plaintiffs should be represented by the same advocate to
avoid prejudice to parties.
3. Joinder of plaintiffs shortens the conclusion of the case.

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 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

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 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 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

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common question of fact being against different parties of sufficient
importance in proportion to the rest of action to render it desirable
that the whole of the matters should be disposed of at the same time,
then it will allow the joinder of plaintiffs or defendants subject to its
discretion as to how the action should be brought.

It should be noted that joinder of the parties and causes of action is

discretionary in the sense that if they are joined there is no absolute
right to have them struck out but it is discretionary in the court to do
so.’

The plaintiff can at his option join as parties all or any of the persons
jointly or severally liable on any contract including parties to bills of
exchange, hundies and promissory notes. See: Order I Rule 6 CPC.

If the Plaintiff is in doubt as to the person from whom he is to obtain

redress, he may join two or more defendants in order that the
question as to which of 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

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“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.

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.

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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.

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

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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 when the
defendant is liable to plaintiff.

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 - The Third Party can not challenge the plaintiff’s case but he
may defend himself against the defendant. i.e. pointing out that
the defendant is not entitled to any contribution or indemnity.

APPEARANCE

Three Modes of Appearance

1. Personal Appearance

A party in law is entitled to enter appearance personally except

where it is a corporation. Corporations can only appear by an
advocate.

Iboos Petrol Station V. Blackstone Utility 1955 KLR 20

A Corporation aggregate has got two types of agents. Agent for

ministerial/administrative purposes i.e. manager to cleaner.
Agent for Legal purposes who must be an advocate.

NB: A Company’s Secretary though a lawyer is not an agent.

Section 3 of the Advocates Ordinance Cap. 341 define an advocate

as a person whose name appears in the Roll of Advocates.

TLCs Act, 1971 - TLC advocates cannot act where their employers
are not involved.

Zuberi Gigi V. The Returning Officer 1974 LRT n.52 – A State

Attorney is an advocate only when he is acting on behalf of the
State.

2. By As Advocate Duly Instructed

W. V. Commissioner of Income Tax [1973] EA 187 defines who

an advocate is. To be duly instructed an advocate must be able
to answer all the material questions relating to the suit.

Clients verify this by signing the pleadings.

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See: KIWANUKA & CO V. WALUGEMBE [1969] EA 660

BUGERERE COFFEE GROWERS V. SSEBBADUKA [197O]

EA 147

KAFUMA V. KIMBOWA HUILDERS & CONTACTORS

[1974] EA 91

3. By Recognized Agent

A recognized agent is a person who holds power of attorney.

A power of attorney is a document/instrument by which a

person empowers another person to represent him or act in his
stead for certain purposes.

The person so appointed becomes an Agent of the Principal.

Order III rule I CPC provides:

“Any appearance, application or act in or to any court, required

or authorized by law to be made or done by a party in such court,
may, except where otherwise expressly provided by any law for
the time being in force, be made or done by the party in person or
by his recognized agent or by an advocate duly appointed to act
on behalf or, where the Attorney-General is a party, by a public
officer duly authorized by him in that behalf. Provided that any
such appearance shall, if the court so directs, be made by the party
in person.”

In the case of Hans Nagorsen V.BP Tanzania Ltd. High Court

Civil Case No. 239 of 1987 (DSM Registry)

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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 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:

21
 “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.

22
Presentation of the plaint must be physical. The same must be
physically presented to the Officer of the court authorized, a plaint
cannot be presented by post, telegram etc. See Order IV Rule 1
CPC.

TIME AND PLACE OF PRESENTATION OF THE PLAINT

There is no specific provision for time and place of presentation of

the plaint. Presentation can be made at any time and place
provided it has been presented to the authorized person.

This saves time as once the party delays to file his plaint he has got
to apply to the Minister for Justice for extension of time.

WHEN IS A SUIT TAKEN TO BE FILED

A suit is taken to have been filed when the necessary court fees
have been paid. Presentation of the plaint has to be coupled with
the payment of fees i.e. the plaint must be accompanied by an
official receipt evidencing payment of the necessary fees. As for
payment of the fees by cheque, date of filing is not the date when
the cheque is signed but when it has been honoured by the bank
and therefore although it is presented any time and place the
plaintiff must pay and get the receipt.

See: RATAN JAYAKISAN SHUKLA V. BAPU HIRAJI KWILO

AIR (V.24) Bomb.25

The judge stated:

“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

23
building although I don’t, for a moment, the clerk is bound to
accept out of the court hours.”

See also PILLAI V. AMIR SALUB & ORS AIR Vol.1 [1914-
Mad.488]

Note: under the Court Fees Rules, Rule 8 allows the court to grant
leave to sue in forma pauperis. In SINGH V. SINGH AIR 1937
Oush.452 it was stated that ‘….merely filing an application for
leave to sue in forma pauperis, though it is accompanied by the
plaint, does not amount to the institution of the suit there cannot
be any suit or plaint before the court until the application to sue in
forma pauperis is granted.

A PLAINT must contain precise and concise statement of the

claim against the defendant, it has to disclose a cause of action
against the defendant, and it has also to be verified by the plaintiff.

The same applies to all other pleadings.

SUMMONS - ORDER V CPC

Order V Rule 1 – Once a suit has been filed it is the duty of the
court to summon the defendant.

What is a Summons? It is a process (document) of the court

addressed to the defendant informing him that a suit has been
instituted against him and requiring him to submit to the
jurisdiction of the court either by filing a written statement of
defence (WSD) within the specified period in the summons or to
enter appearance before the court for the purposes of receiving the
directions of the court on a date specified in the summons.

PURPOSE OF SUMMONS

The procedure conforms with the rules of natural justice that no

party should be condemned unheard. It gives the defendant an
opportunity to be heard.

24
 TYPES OF SUMMONS

There are two types of summons.

1. Summons to appear

2. Summons to file a Written Statement of Defence (WSD)

NB: Summons to appear are normally issued by the High Court.

Summons to file WSD is invariably issued by Subordinate Courts.

Mandatory (Basic) Requirements of a Summons

1. Under Order V Rule 2 a summons must be signed by a Judge

or a Magistrate or any other Officer appointed by the Chief
Justice for such purposes.

2. It must bear the seal of the court.

What is a seal? It is a metal endorsement on a document. The

High Court is the only court in Tanzania with such a seal.
However, rubber stamp may be a valid seal as the endorsement
seal.

See: SATCHU V. A.G [1960] EA 508 and BAWMAN V

NADIOPE [1968] EA 306. There is a rebuttable presumption that
the person signing the summons has the authority to do so. One
cannot inquire as to the authenticity of the signature at the time
of service.

3. A summons must be accompanied by another document. Order

V Rule 3 of CPC - to enable the defendant know the nature of
the suit relating to the summons. The Plaintiff must produce
enough copies for all the defendants.

APPEARANCE

25
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.

26
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

27
being satisfied that personal service will entail unreasonable delay.
Such a summons must be by registered mail. See Order V Rule 30.
The defendant will be required to sign on the original summons as
acknowledgement and return the same to the court. The defendant
may write a letter to the court to acknowledge receipt of the
summons.

Service outside the jurisdiction of the Court but within Tanzania

Order V Rule 22 CPC

The court which issues a summons to the defendant who resides

outside its jurisdiction sends the original summons and a copy to the
court having jurisdiction in the area the defendant is known to reside.
e.g. The RM in DSM sends summons and a copy to the RM in Mbeya.

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

28
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.

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.

29
 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.

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.

30
 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

31
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.

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

32
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.

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.

33
Where a party applies to have a signature on his pleading, the court
will freely grant that application.

Rule 15 - demands that all pleadings have to be verified.

What is verification?

It is a statement by a pleader showing that he has full knowledge of

what is pleaded and indicates his bona fide of what he has pleaded.

Verification is a mandatory requirement.

Under Rule 15(2) - the party verifying must verify to the different
paragraphs separately and show which are verified according to his
knowledge, belief and information.

E.g.

VERIFICATION

I. XY, being the plaintiff in the above named suit do hereby state that
all that is stated in paras 1 to 5 above is there to in the best of my own
knowledge, what is stated in paras 6 and 7 is there to the best of my
belief and what is stated in para 8 is there to the information supplied
to me by the Dean of Students.

DATED at Dar es Salaam this……….day of November, 1988.

……………………………………….
PLAINTIFF

A plaint which is not signed/ verified is ineffective and therefore the

Officer of the court may reject it.

34
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.

35
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.

36
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. Also an effect
of amendment is not to substitute the cause of action for a new cause
of action

37
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.

38
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.

- 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.

39
- 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.

40
Even in personal actions the place where a party carries on a business
or personally works for gain may be, and often is stated instead of his
place of residence.

In case of registered company, the place where the registered office of

the company is situated or where any of the branch offices of the
company is situated.

The body of the plaint should be divided into paragraphs and

consecutively numbered.

Dates, sums and numbers should be expressed in figure. See: Order

VI Rule 2.

RETURN AND REJECTION OF PLAINT.

RETURN OF PLAINT
A plaint is return to the person who filed it in a wrong court i.e court
with no jurisdiction.
The return is made, either at the presentation of the plaint or at the
time of hearing. Only a judge or magistrate has power to return a
plaint.

41
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.

42
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.

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.

43
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.

44
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
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

45
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.

46
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.

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

47
 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.

48
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:
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.

49
 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

50
 28. Waiver
29. Want of Cause of Action.

NON-APPEARANCE
Read the provisions of Order IX, the case of EAP &BTV. Terrazo, and
Orders III and V.

The consequences of non-appearance of a party differ depending on

who does not appear.

Non-Appearance of the Defendant

When summons was not served and failure to serve the summons
was due to mistake of the plaintiff either as a result of failing to pay
court fees or his failure to pay postal charges the suit is to be
dismissed. This is because there cannot be a suit without parties.

Order IX Rule 2 – The court has power to dismiss the suit on the first
day of hearing. If by coincidence the defendant is in court the court
will not dismiss the suit.

Where neither the plaintiff nor the defendant is in court the court will
dismiss the case. Order IX Rule 3.

The summons is returned unserved and the defendant does not

appear, it is the duty of the plaintiff to apply for re-service. This

51
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.

52
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

53
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.
The sums sought to be set off should not exceed the pecuniary
limit of the court’s jurisdiction.

54
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.

55
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.
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.

56
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:-

57
 1. By way of affidavit by the plaintiff.
2. By way of oral evidence by the plaintiff.
You cannot proceed ex parte unless granted leave by the court. On
the day of hearing the plaintiff prays the matter to be heard in
chamber by the judge so that he can get leave of the court.

The Procedure in the RM’s and DM’s Court (Subordinate Courts)

- Where summons issued was for producing WSD the court may
proceed ex parte.
- Where summons issued was summons to appear the court may
enter judgment.
Ex parte procedure is penal; it should be exercised where the
defendant refuses intentionally to appear or to submit to the
jurisdiction of the court.
It must be proved that the summons was duly served.

Summons to appear is a summons for direction both in the High

Court and in the Subordinate Courts.

Summons for disposal of the suit constitute the first day of hearing
and it requires no proof like in the High Court where there should be
ex parte proof.

Where the court is not sure whether the summons was duly served it
will issue a fresh summons.

58
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

59
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.

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.

60
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.

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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.

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

62
 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.

63
 A party is not entitled to interrogate his opponent on
confidential communication between his opponent and his
legal adviser.
Those interrogatories which are injurious to the public interest
or security e.g. the defendant as a military officer to be
inquired on military matters.

GENERAL FORM OF INTERROGATORY

TITLE
Interrogatories on behalf of the above named Plaintiff (Defendant) for
the examination of the above named Defendants (Plaintiffs) pursuant
to the order herein dated……day of ……19….
Did you……………………
Were you………………….
Was it……………………..
If not weren’t you…………

(Set out the interrogatories in the form of concise questions, each

interrogatory to be set out in a separate paragraph and numbered
consecutively.)

The defendant (plaintiff) AB is requested to answer the

interrogatories numbered…….etc.

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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

65
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.

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.

66
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

67
 the right of inspect the documents. The right should be
granted within ten days of the notice.

3 grounds upon which the party may resist discovery

Documents containing exclusive evidence of title.
Documents which contain privileged communication.
The discovery is irrelevant i.e. it does not go into answering
any material fact in the suit.

ADMISSIONS
ORDER XII

There are two types of admissions under the Civil Procedure Code
Admissions made at the instance of the party admitting
himself.
Those admissions which are made at the instance of the
opposite party.

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.

68
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.

69
 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

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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

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

71
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.

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Settlement and Determination of Issues at the First Hearing

Order XIV
The order relates to framing of issues.

Framing of the issues is done in the presence of the parties and at the
first hearing.

There are three Types of Issues.

1. Issues of fact.
2. Issues of law.
3. Issues of mixed fact and law.

WHAT ARE ISSUES?

There are several definitions but the best one is given by Order XIV
rule 1(2).
Under this rule issues are material propositions of either fact or law
or mixed fact and law which must be alleged by the plaintiff in order
for him to have a right to sue and which has to be denied by the
defendant in order to constitute his defence.
Issues arise-from the allegation by the plaintiff and denials by the
defendant, they constitute the points of dispute between the parties.
THEREFORE Issues arise from the pleadings.
Whatever alleged/denied constitute an issue.

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SUPPLEMENTARY SOURCES
Issues also may arise from the documents submitted by the parties to
the court or by affidavit submitted by the party to the court.
Also issues may arise from the oral examination at the first hearing.

WHO HAS THE DUTY TO FRAME ISSUES?

Order XIV rule 1 provides that. It is the duty of the court to frame the
issues at the first hearing.
The duty is a mandatory duty. The court cannot shun away from this
duty.

There are instances where parties will help the court in framing the
issues. Where the parties are very clear as to what the real matter is
between them they can help the court frame the issues. In most cases
where the parties are represented by advocates the normal practice is
for the parties to assist the court in framing the issues. The court has
discretion to accept or reject them.

WHY FRAME ISSUES?

Framing the issues has a very important bearing. Whether the
outcome will be just or unjust it will depend on the framed issues.

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 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 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

75
 “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

76
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

Norman V. Overseas Motor Transport [1959] EA 131. In this case the
trial court failed to frame issues. On appeal the issue was whether the
failure could be fatal to the proceedings. The Court stated as follows:
“The failure to frame issues is an irregularity, the question
would appear to be whether notwithstanding the failure to frame
issues the parties at the trail knew what the real question between
them was, that the evidence on the question had been taken and the
court duly considered it.”

According to the case – where the court has failed/omitted to frame

issues, it is apparent that the parties knew what the dispute between
them was and had an opportunity to give evidence, which has been
taken into account by the court to make its decision. Such failure or
omission will not be fatal to the proceedings. It is fatal only to the

77
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.

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AFTER FRAMING THE ISSUES
Order XIV rule 6 – where the issues are between the parties and the
parties submit them to the Court with an agreement in writing that
they will be bound by the decision of the court on them the court will
have 3 things to do:
1. To ascertain whether the agreement was duly executed by
the parties.
2. To inquire as to whether the parties who have executed the
agreement have substantial interest in the outcome of the
case.
3. To see if the issues framed are fit for trial.
If the court is satisfied that the three things have been
complied with then it will proceed with the trail of the
issues only.

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.

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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

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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.

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.

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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.
The principle operates very closely with the principle of PARTY
INVESTIGATION as opposed to the PRINCIPLE OF JUDICIAL
INVESTIGATION.

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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.

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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 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

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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)

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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.

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.

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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.

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 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).

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

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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.

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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.

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

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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.

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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 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

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 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

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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 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.

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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.

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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:
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.

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 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

98
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 (7 th
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:
“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

99
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

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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
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;

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 “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.

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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
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

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 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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