Civil Procedure Notes
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Transcript of Civil Procedure Notes
CIVIL PROCEDURE
Two questions a court must answer, one who has done it?. That question is
aimed at establishing responsibility, at enforcement and therefore it is aimed
at punishment. Therefore a question which is answered by a criminal court.
All criminal proceedings aimed at establishing a person responsible for a
particular act.
Second question is who is liable? It is asked in proceedings which are not
punitive, not aimed at establishing responsibility. It is asked in proceedings
which are aimed at compensation or restoration of status quo.
Every person has got two capacities. Public capacity as a member of a
society, this relates to a community. This is a capacity qua citizen. That
capacity is the one which determines his duties to the state and that is a
relationship normally handled by public law. Public law is the law of general
application which determines the relationship of an individual to the state
among them criminal laws. Therefore dispute settlement procedures relating
to criminal law are taken care by The Criminal Procedure Act.
When there is a dispute between state and individual in his public capacity
then that dispute is settled by the procedures laid down under CPA.
There is a certain capacity, capacity qua individual-private life relations.
There are laws which relate to civil relations. Civil is not defined under law
dictionaries, we use ordinary dictionary meaning private relations between
individuals. Disputes arise out of these relations are known as civil suits and
the act of going to court when there is a dispute between individuals in their
individual capacity is known as litigation.
Lis means a dispute (Lis inter partes)
Lis is not only inter partes, it must be contested and this is known as Litis
Contestatio and when you go to court you get what is known litigation.
Litigation is the act of invoking the jurisdiction of a tribunal of competent
jurisdiction to resolve a dispute between one person known as a plaintiff, a
complainant and another person known as a defendant and who is alleged to
be responsible for the mischief complained off. The procedure of settling
disputes of a civil nature is called the civil procedure. The basic law for civil
procedure is the Civil Procedure Code.
History of civil litigation.
There are four stages in the history of civil litigation:
1. Communal Stage
It was characterized by the popular assembling which comprised of the
members of the community including the disputants. The popular existed
when the society was living a communal life. The level of development
of productive forces in the community was very low hence no surplus in
the community. And because of that there were no classes and hence
there was no ruling group and ruled group.
Property holding was communal, there were no absolute right to
property, to the contrary there was relative right – usufructuary right.
Once right to property depended on other people right to the property.
People were interdependent one another and therefore they have to
remain friends. Disputes revolved around the right to use. The whole
community was free to participate in finding a solution to a dispute and
dispute settlements took a form of discussion (The Palaven) all members
of the community were allowed to propose the solution. A decision
reached in the popular assembling it was a compromise decision which
was based on a principle win a little lose a little. It was more than
arbitration, a negotiation. The principle geared at maintaining peace to
the society. Society at that stage could not afford enemity because they
were interdependent. This is the procedure which needed informality, no
rigid rules.
Disputants were members of the same community. If they belong to
different community there was a self help. Self help did exist as long as
there was community but in self help community do not become stable.
Certain stage in dispute settlement occurred during the slave and feudal
period. At the beginning dispute settlement between makers of the property
class was by means of self help. The disputants raised armies and fought
battles to take what they considered to be their right. When the dispute is
between the non property class the procedures used were known as the
judgment of God. It was believed that God would intervene to show who has
the right. Under the category you had ordeal, torture, oath.
Property class they challenged one another by what was called duel. On this
you get champions. These champions were employed to fight on behalf of
the disputants and whoever employed a lose champion is taken as a
judgment form God that he has no right.
When feudalism was at its peak, movement from physical judgment to
logical judgment. Judgment based on evidence. The feudal lords obtained
permission from the king to hold courts in their areas and they were paid by
the litigants. Litigation became one source of revenue to the rulers. There
was sufficient surplus to maintain a class of people who specialized in
resolving disputes. And the system they employed is the third stage of
settling disputes – Inquisitorial.
It comes from the word inquisition which came from the word inquire.
Therefore it is the process of inquiring into a complaint. For the first time the
role of the court is seen. Parties make complain before the court and the
court takes active role to inquire into the dispute. The court collects the
evidences, it actively investigates the case. It prosecutes the case and
eventually it decides on the dispute.
Five rules of procedures which must be followed before the court plays an
active role. There is a distinction between the inquisitorial and communal
system. The communal system did not have a full time institution, there was
no court while under the inquisitorial there was a full time institution. It was
not a state institution and generally no payment except for the beer. The
assembly operated on the basis of judicial knowledge. Under the
inquisitorial there was permanent court as a source of revenue, independent
of the community and does not know the existence of the dispute until it is
before it. Does not know the evidence till it makes inquiry.
Inquisitorial – Judicial ignorance, Declaration of absolute right
Communal – Judicial knowledge, Interest in the future
The popular assembly stage it was a stage when the assembly was active-
judicial activism. In the inquisitorial system we see an amount of judicial
activism when the parties are also involved in presenting the evidence while
in the stage of act of God there was judicial inactivism. Tribunal was there to
regulate the fight.
Our system under the Civil Procedure Code is adversarial. The litigants meet
in court as enemies (adversaries). They are defending private property
interests. They are the ones who know how they have acquired the property,
have the evidence of the right ownership.
They have active role in the process of dispute. The court is ignorance of the
case. It knows the law but not the facts. It has the role of regulating
procedures. Adversarial system as adopted from common law is the system
which emphasizes on the passive role of the court. The court assumes the
attitude of neutrality and therefore there are basic principles which
adversarial follows;
1. Party prosecution
Parties are in control of the litigation, conduct of the case. They are the
ones who choose what steps to take and at what time. They are the
masters of procedures. The court would not do anything in proceedings
unless it is moved by the parties.
Reason: They are the ones who are interested in the subject matter of
litigation. They
are the best defendants of their own interests.
The court operates on the basis of judicial ignorance, the case becomes
known to the court as the parties presenting it. The court sits back and
listens, it plays only one role and that is of ensuring that the fight is
conducted according to rules, referred as the role of referee of the game.
It was stated in the case of Jones v. National Coal Board1 Lord Denning
drew the picture of adversarial system and he stated as follows, “Let the
advocates one after the other put weight into the scale. The nicely
calculated less or more but the judge at the end decides which way the
balance tilts be it even so slightly so firmly is this established in our law
that the judge is not allowed in a civil dispute to call a witness who he
thinks might throw some light on the fact”.
Three major elements of Adversarial System
1 [195] All ER 155
1. Under adversarial system the court is totally passive, its only
function is to listen and make decisions based on law. The only thing
court knows is the law not the case because of the nature of private
property.
2. Principle of parties prosecution.
The parties are the ones to adduce evidence, to conduct the case. The
ones who know the nature of evidence to be produced, they are the
masters of facts. They are the ones supposed to put weight in the
weighing scale. Hence they are the ones who mostly active in process of
civil litigation. But you can not have the weight unless you collect them
and hence there is a third principle
3. Parties investigation.
To investigate is to collect evidence. In the inquisitorial system it is
the court which investigates but in the adversarial system the court does
not prosecute and because of that it does not have the duty to collect
evidence hence the principle of party investigation. It is necessary parties
are left with duty to investigate because they are the ones who know the
nature of their interest in the subject matter. The two principles (2&3)
have some minor principles.
Because parties are the masters of procedure they have freedom to
choose what step to take at what stage, what to do and at what time and
what evidence to produce. They are in control of procedural and
evidence. For example Order 8 Rule 1 of the CPC, the defendant served
with the plaint may file a written statement. Rule 5, the right to decide
what to do but it is not exercised it is deemed to have been waved.
Under party prosecution parties are free to wave their procedural rights.
The calling of witnesses is the duty of the parties, Order 16 Rule 18.
They have the burden of proof, the court comes in to facilitate the calling
of witnesses.
Order 16 Rule 1: Party may apply to court for witness summons but he
may wave his right. It is the one who should pay the expenses of bringing
the witness because he is the one who is prosecuting his case.
The choice of procedural steps to take and which witness to call is called
the principle of dispostitive election. You have an election of what to do
in terms of procedures and what evidence to use. This principle goes
hand in hand with another principle and that is principle of orality of
proceedings together with the principle of mediacy as oppose to
immediacy.
Proceedings in our courts are viva voce that is by way of mouth. Because
they are oral parties must appear before the court, there is direct
interaction between the court, the parties and the witnesses. The court
hears and receives live evidence and this is what provided under Order 18
of CPC. Examination of witnesses by the court orally – Rule 4
You can not have adversarial system without orality and mediacy. Order
18 Rule 8 requires the judge/magistrate to make a record…of a witness.
There are some circumstances when there is documentation and
immediacy under adversarial system as adopted Order 19 is an exception
to the general rule that evidence must be oral and presented before the
court. Rule 1- the use of affidavit evidence. The witness is not before the
court, the court presented with a document. Now we move from orality to
documentation. Also Order 26 Rule 1 allows the court to issue
commission to examine witnesses. The witness will be examined by the
commission who is not the party of the case and he is the one who record
the evidence. The evidence follows the principle of documentation when
it is read before the court, the witness is not there. The employ of
principle of documentation and immediacy is an exception which should
be allowed very rarely.
Important: The adversarial system emphasizes on the active role of the
parties as opposed to the passive role of the court. Emphasizes on orality
of the proceedings as opposed to documentation, emphasizes on mediacy
– the interaction of the court with parties and witnesses as opposed to
immediacy which emphasizes on indirect contact between the court and
parties.
To what extent does the adversarial system guarantee access to justice?
Access to justice is a right which is in Article 13(6) of the Constitution.
Everybody has a right to a fare hearing. However access in the court
meets certain assumptions, to decide one must know his right.
When there is legal illiteracy there is no equal access to justice and when
the adversarial system requires the parties to prosecute, investigate their
cases, such things can not be done when the parties are ignorance of
substantive right – procedural.
To operate the adversarial system you must have sufficient advocates.
There are about 800 advocates and most about 95% are in big cities, most
litigants are in rural areas. Most people do not know their procedural
rights.
Money is the problem, legal assistance is expensive and few can afford
them. Access to justice in the cities is not universal.
The adversarial as imported does not guarantee equal access to justice
and our courts have tried to modify it to suit our local conditions. Our
courts have taken position that courts in Tanzania should play the
assistant role, that should be a layman lawyer should assist the parties.
Simon Chitanda v. Abdul Kisoma2 Qukima A. J. had the following to say;
“When the parties to a suit are layman conducting their own case the trial
court should scrutinize the pleading and in general furnish any necessary
guiding”. The court should assist the parties.
John Magendo v. Govani3 as per Biron, J.
A child knocked by a car in Morogoro, 6 years later his father filed a case
in his own name. The defendant rose an objection of time barred.
Magistrate dismissed the case.
He castigated, court proceedings are serious matters and not games. It
was the duty of the court to advice the party of the law.
The Manager Pars Banafish & Industrial Trade Co. v. Sajjad B.
Kerewala4 Msofe J.
In this case Mr. Robert a layman ought to have guided by the court where
possible or necessary.
Adversarial had undergone judicial modification as the three(3) cases
show. In JALA courts are directed to apply principles of common law by
modifying them to suit our conditions.
2 [1973] L.R.T 113 [1973] L.R.T. 604 [1996] T.L.R. 344 at 347
Procedure is the reflection of attitude of a society towards disputes.
Mauro Cappellati: Ideas trend in Civil Litigation [1971] 61 Mich L. Rev.
Procedures are the meeting point of ideas, conflicts and it is the cape of
good hope through which justice is realized in a spint and cheapway and
it is cape wrath where experience may lead into decisions not favourable
to a litigant. Procedure it is a balance between what is good and not good
for the society. It is valid choice which reflects society attitude.
Procedure in communal society differ from urban society. Social values
in communal differ from urban.
ANATOMY OF CIVIL PROCEDURE CODE
CPC is divided into two parts. Main part is the Act itself comprises of 101
sections. Sections enact the enabling position what can be done in civil
litigation. Give the court procedural powers. The main Act does not show
how the powers of the courts are invoked. Gives general principles but not
mechanisms to apply procedural rights.
Example: Section 22 of CPC – Commencement of a suit by presentation of a
plaint.
Section 68 – Interlocutory application made in the course of civil litigation.
Second Part comprises of two schedules. 1st schedule comprises of Orders
and Rules. Is the schedule which shows the procedures of how enabling
powers given by the main Act are put into action. Order 7 – nature of the
plaint. Order IV – procedures of presentation to the court. Every section in
the Main Act there is a corresponding Order and Rule in the 1st schedule. No
operation by the main Act without 1st schedule.
The 2nd schedule contains Rules of Arbitration. They are also brought into
play when court orders arbitration in the cause of civil litigation.
Authority: In India, Sambogh v. Sunder5, it says that where the main part of
Act contains/creates a body of rules upon the court should act, the schedule
to the Act gives you the procedures to be followed.
There is a unique situation in the CPC itself. A schedule to an Act is not part
of the Act (General Rule). There is an exception enacted under section 80 –
the rules contain in the 1st schedule and 2nd schedule shall have the same
effect as they were enacted in the main body of an Act until they are
modified, annulled or replaced in accordance with an Act. The initial Civil
Procedure Rules were enacted by parliament and were taken to be part of the
Act.
2nd unique situation, section 81 the Chief Justice is declared to be a rule
making authority in respect of 1st and 2nd schedule. Initially Rules were made
by the parliament. Gives power to amend, modify, annul or to replace them.
Is the subsidiary legislative authority for the purpose of 1st and 2nd schedule
to the Act.
Meaning: it’s an exception situation whereby a subsidiary legislative power
is given authority not only to modify but to repeal and replace Rules enacted
by the parliament. Parliament enacts general Rules but specific is left to the
court. Section 81 must be read together with section 82. Section 82
enumerates the areas in which Chief Justice can make Rules. Those areas
cover the whole 1st and 2nd schedules. Also section 81 must be read together
with section 101. Distinction between section 101 and 82 is 101 relates to
forms, type of document which are to be used in courts while section 82
relates to procedures. Section 101 empowers Chief Justice to prescribe forms
which are to be used in the process of civil litigation. Under CPC no forms
have been prescribed different form Zanzibar Decree where there are
5 [1940] I.L.R. (Bomb) 756
prescribed forms. There is a vacuum under CPC, it is silent. We must go
back to common law procedures. The forms which were used by High Court
of England by the reception clause date are to be used by the Tanzania
courts.6
CONSTRUCTION OF THE CIVIL PROCEDURE CODE
Start by the major premises, CPC does not enact substantive right it simply
enact procedural right. Does not vest any right to a litigant. Does not give or
take away any property from any litigant. Aimed at regulating procedures. It
is a procedural statute and not substantive. General rule where a law affect
the substantive rights of the citizens that law should be strictly interpreted.
Laws affecting procedures should not allowed to be masters, are hand
maidens – servants in the process of administration of justice and therefore
they should be interpreted in a way they will broke justice.
Iron & Steelwares Ltd. v. C. W. Martyr & Co.7 and Kendal v. Hamilton8
These cases are authority for the proposition that rules of procedure are not
masters, they are servants. They are supposed to facilitate the administration
of justice, are not expected to broke fair administration of justice. Lord
Pences “Procedure is but a machinery of the law, after all a channel and
means whereby law is administered and justice reached. It strangely depart
from its proper office where in the process of facilitating it is permitted to
obstruct and even extinguish legal rights and this made to govern where it
ought to subserve. It does not give right or extinguish a right.
6 Article 2(3) of JALA7 (1956) 23 EACA 175, 1778 [1978] 4 AC 504 at 525
This proposition leads to another, because procedure is a servant and not a
master and because it suppose to facilitate and does not take or give right
then rules of procedure must be given a liberal interpretation. This was held
in the case of South British Insurance Ltd. v. Mohammed Taibjee Ltd.9
Authority for the proposition that in deciding cases courts should not rely on
technicalities but rather go to the substantive of the dispute. Technicalities
do not resolve the problem simply broke a part from realizing his right. Civil
litigation is aimed at having a final and conclusive settlement of dispute. It
introduces an element of uncertainity in relations in the society. It
discourages production which the main role of the state is to facilitate
production. This proposition was adopted in our country in Karimjee
Properties Ltd. v. Khaki & Camera Prix Ltd.10 There was a preliminary
objection raised by the defendant that a plaint did not disclose a cause of
action. And the defendant was inviting the court to strike out the plaint for
failure to disclose a course of action and therefore the issue was whether a
plaint which does not disclose a course of action should inaviably be struck
out. The court was called to interpret Order VII Rule X. At that time 1970
that Rule said so, the Chief Justice expressed his regret at the state of the
law, the law required the court to struck out a plaint. He stated; He hope that
in the near future the situation will change. Shortly he amended OVIIR10 by
introducing a proviso that is of the opinion that an amendment of the plaint
will disclose a course of action then it should order an amendment instead of
striking it out.
Before that time EA Court of Appeal had made a comment on it in Nanji
Prabhudas v. Std. Bank11 classify procedural law into two (2);
9 [1973] EA 210 at 21410 (1970) HCD 23511 [1968] EA 670 at 683
1. Fundamental goes to the root of a dispute. They affect the jurisdiction of
the court or contradict a statute. Eg. Matters of Res Judicata, limitation
where it goes to the root of the case there is no option but to interpret it
strictly. However, where it is not of a fundamental nature then you should
give a procedural provision a liberal construction. According to this case
most procedural matters do not go to the root of the case and therefore they
should be given a liberal interpretation. According to this case the role of a
civil court is to do substantial justice without undue technicalities in law.
Therefore a civil court should not hasten to declare a proceeding a nullity
purely on the ground of procedure, Orthodox position. Courts in Tanzania in
recent times have developed a different approach. First is found in the case
of R. Mohammed v. THA12 The High Court had entered judgment in favour
of the plaintiff because the defendant had not filed a written statement of
defence. The issue in the appeal was whether the court correctly exercised its
power under OVIIIR14 of CPC. Ramadhan J., ruled that rules of procedures
are there to be followed, a court can not depart from a rule and the pretext is
that it is doing justice. Rules of procedures vest rights to the party.
There are other cases.
In an application to the court a wrong citation of enabling powers or known
citation of enabling powers makes the application incompetent and it ought
to be struck out. Oppose to the tradition. The court is presumed to know its
powers conferred to by the law.
Courts concentrate on deciding cases on technicalities rather than going to
the substantial right. The use of technicalities reflects laziness instead of
going into the substance matter. As a general rule procedural statutes should
be interpreted liberally because they do not vest any substantive right to the
12 Civil Appeal 21/1996 (Unreported)
party. Strictly interpretation of rules of procedure should be made only when
these rules go to the root of the jurisdiction of the court, they are
fundamental in their nature when they go into the root. When they do not
affect the jurisdiction of the court such rule generally must be given a liberal
construction. However, the Court of Appeal of Tanzania has moved away
from the principles by taking a position that rules of procedure are there to
be followed and basing on that where there is a specific procedural rule that
rule must be followed so as to introduce an element of certainty in
procedure. That is to say according to Court of Appeal the principle of
liberal interpretation of procedural statutes should not be used to introduce
arbitrariness into the procedures and therefore uncertainty. But the Court of
Appeal has gone to an extremity of even demanding a proper citation of an
enabling power being invoked. Enabling powers are matters of jurisdiction,
law and the court is supposed to take judicial notice of the law. To be
conversant with its jurisdiction and therefore, the tradition position that
procedure is not a master but a servant has been extremely watered down by
the Court of Appeal of Tanzania. The effect is the occasioning of injustice, in
that a number of cases are determined not on the basis of substantive right
but on the basis of procedural technicalities in which case the dispute
remained unresolved.
The Effects of Amendments
Article 1313 amendments to substantive law do not have a retrospective
effect. Meaning an amendment in law has no effect of taking away the right
that has already vested in a person. As a matter of general rule when we talk
about retroactivity of the law, we look forward the law affect the future and
13 The Constitution of the United Republic of Tanzania, 1977 as amended
present and not the past. Basic Constitution principle that you should not
take away people’s rights that they have already had.
Procedural law does not enact substantive right, it relates to the mode of
dispute settlement before a court of law. It does not concern itself with
substantive right, there could be some procedural right but they could not
take away somebody proprietary right.
General rule relating to retroactive to the statute does not apply. It will only
when there is a specific provision which will declare the law to have a
retroactive effect.
As far as procedural laws are concerned the General Rule is any amendment
or change in the law relating to procedure will affect proceeding which are
already in court and subsequent to that law. Procedural amendments have a
retrospective effect. Example Employment and Labour Relations Act has
taken away jurisdiction matter for ordinary courts. The Land Act has also
taken away jurisdiction of ordinary courts. Unless the law specifically
provide that it will not have a retroactive act, that law will have a
retrospective act. Section 75 of the Land Act declares that jurisdiction will
be vest in the High Court Land Division and in the District Land and House
Tribunals. But the Land Act just enact the law relating to jurisdiction. High
Court and District Land and House Tribunals will have exclusive
jurisdiction. Removed from the general division of the High Court and
Magistrates. The procedure is found in the Land Dispute Settlement Act, no.
2 of 2002. Provides for the ways jurisdiction will be exercised by the District
and House Tribunals and High Court Land Division. It is a procedural law
relating to the jurisdiction. Presumption is that, once that Act was enacted all
matters relating to land would have removed from the RMs Courts and
general High Court. Procedural statutes as the General Rule has a retroactive
effect but section 40 makes a specific provision to the effect that the Chief
Justice could extend the period in which…
The principle in Ben Bros Motors v. Patel.14 A case related to the Security of
Employment Act, before enactment of SEA ordinary courts had jurisdiction
over matters relating to summary dismissal or disciplinary termination. This
jurisdiction was taken away from ordinary courts by section 27 of SEA.
Section 28 had to be read together with section 27. This was a case of
summary dismissal and it was pending before ordinary court, the issue was
whether the SEA ousted the jurisdiction of ordinary courts. The provision in
the SEA which ousted the jurisdiction was a procedural section, it did not
affect the right of the party. In answering that question the court stated as
follows:
“When a new enactment deals with rights of action unless it is so expressed
in the Act itself, an existing right of action is not taken away, however, when
it deals with procedure only the enactment applies to all actions whether
commenced before or after the passing of an act.”
The law which gives a person a right of action creates a substantive right. An
amendment in such a law does not extinguish an existing right unless it is
expressly stated.
Prior of section 20 of the Land Act, a foreigner can own land. Under the Old
Land Ordinance a foreigner could own land. In 1998, the right was
extinguished. The right to own land is the cause of action. The law enact a
substantive right.
The case is saying there is a possibility for such a law making a specific
provision that the new Act will cover even the existing right, parliament is
the one to decide whether it should be retrospective or prospective. If the
14 (1967) HCD 435
law is silent on retrospective nature of the amendment then the General Rule
will be applied, however, under the Land Act, section 20 there was a specific
declaration of retrospective.
The case has a 2nd category of statute, that is the statute which do not relate
to right of action but deals with matters of procedure only. Those are
automatically retrospective unless expressly stated by the law. And this was
commented upon in the case of
Msige v. E. A. Railways Cooperation15 this case held that:
“The general principle seems to be that alterations in procedure are
retrospective unless there is good reason against it. The reason is that a
person’s vested right is not taken away by procedural amendments.
Procedural law has only one purpose, it is used as a means of settling
dispute. Procedural law does not declare any substantive right though will be
declared in the process of dispute settling.”
Whether an issue of trespass/mortgage is dealt with the…it does not matter
the law remains the same.
Procedural laws have a retrospective effect unless it is expressly stated
because they do not enact substantive right. Substantive laws have no
retrospective effect unless it is expressly stated.
THE PRELIMINARIES TO CIVIL LITIGATION
Litigation is the last resort to solve the dispute. Before there are negotiations,
the first preliminary is the notice before an action – a letter of demand. It is a
letter written by a potential plaintiff or his advocate to the potential
defendant laying down his claim, indicating what he is claiming, asserting
the right and making the demand for redress within the specified period and
15 (1970) HCD 182
threatening court action if those demands are not met. A greater number of
claims/disputes are resolved by demand letters.
For a person to write it he must have a legal right and not moral right. It
asserts a legal right against the potential defendant and makes a demand for
redress on the threat of court action. It is not provided for under the Code.
No section compels, it is a common law practice which is followed in
Tanzania by virtue of the reception clause. Also it is by implication in the
code, section 30 of CPC. At the time of pronouncing judgment the court is
given power to award costs to the party. To order one party in the suit to
costs to the other party it is a discretionary power of the court.16
The General Rule relating to costs is found under section 30(2) of CPC but it
is stated in the negative. Normally, costs follow the event – who loses
compensate the winner because the loser is taken to compel the winner to go
to court. But under section 30(1) the award of costs is discretionary
therefore, there is a possibility that costs will not follow the event.
Sometimes the winner pays the costs to the loser.
Demand notice serves a very important purpose that it is used to establish
that the defendant was informed about the claim, he was invited to settle
amicably and yet he becomes stubborn. He compelled the plaintiff to go to
court and therefore, when the issue of costs arise then the plaintiff will be
automatically entitled for the costs. The demand notice not only intended to
establish a litis contestatio, it is also established that the plaintiff has been
compelled to go to court. No standard form of demand letter it depends upon
the claim.
2nd STAGE
16 Section 30(1)
You have decided to go to litigation, the next question is which court will
you go? Brings to the concept of jurisdiction. All our courts are established
by statutes and therefore, the jurisdiction is determined by statute. Under
CPC, section 3 only 3 courts are concerned. It defines what court is and it
defines by way of mentioning the court.
The definition is in the context of applicability of the court, the CPC applies
to courts which are mentioned in the CPC. Section 3 and 2 must be read
together.
Jurisdiction: means power, a specific one. It is not defined under the Code
even under the JALA, nor the Interpretation of Laws and General
Applications Act.
Article 108 of the Constitution establishes the High Court but does not give
it its jurisdiction. In the Constitution there are no provisions regarding the
general jurisdiction of the High Court but Article 107A(1) it declares that the
High Court is the court of records. Where is the provision? The answer is no.
referred to common law. We have the High Court with no clear jurisdiction.
The Constitution in Article 108(1) allows parliament to enact laws which
determine the jurisdiction of the High Court. This is how the JALA was
enacted. It is a court of unlimited civil jurisdiction, both in the context of
territory and also in the context of pecuniary value of the subject matter.
The RMs and DC are courts of limited jurisdiction, both territorial and
pecuniary of the subject matter. In respect of DC they are established for a
particular district although Chief Justice may give them a wider territorial
jurisdiction.17 Section 5 the Chief Justice has power to establish RMs.
As a General Rule these are the courts which exercise limited civil
jurisdiction. DC exercises civil jurisdiction only being presided over by a
17 Section 4 of MCA
district magistrate who has been appointed by…Not all District Magistrates
have civil jurisdiction.
Jurisdiction relates to power, it is the power to hear and determine. If one
missing you do not have the power. Power to entertain the dispute, power to
decide essentially values, a power to grant a remedy/relief. Hearing involves
entertainment of the dispute by hearing the parties and their witnesses. That
is called the power to try to dispute.
Section 7 of CPC raises the presumption as to jurisdiction. Presumption is
that all civil courts are presumed to have jurisdiction to hear and determine
civil matters that are brought before them unless that jurisdiction is
expressly/implied barred. Relates only to civil courts defined under section 3
of CPC.
How this barred is effected? By a general proposition that jurisdiction is
determinable at the beginning of the case. Anything done without
jurisdiction is a nullity. However, common law have developed another
approach, although as the general principle jurisdiction is determinable at the
beginning of the trial. A court can start hearing the suit when it has
jurisdiction but in the cause of the trial it can do things which will oust it
jurisdiction.18
This presumption as to jurisdiction under section 7 stands out of the fact that
the court is the fountain of justice. Article 107A (1) the court is the final
authority in dispensation of justice. Section 7 must be read together with
Article 107A(1). This general proposition is qualified. Article 107B(2)
enacts the principle of independence of judicially. It is bound by the
Constitution and written laws. Article 107A is the major Article in the
Constitution that declares as the only instrument which has responsibility of
18 See Anisminic’s case
dispensing justice. That Article is not qualified in any way, any possibility of
another instrument to dispense justice finally and conclusive. The
Constitution is the basic law of the land. No law can supersede the
Constitution unless the Constitution allows it. Article 107A has not allowed
parliament to oust the jurisdiction of the court in the dispensation of justice
and therefore, section 7 of CPC can be taken to introduce the concept of
ouster of jurisdiction in a situation where…
OUSTER
All civil courts in Tanzania are courts which have established by statutes and
therefore to know the jurisdiction of a particular court, you must look at the
statute creating it or providing for its jurisdiction. As far as the High Court is
concerned you must look at the Constitution which established the court and
the JALA which provides for jurisdiction of High Court. As far as RM and
DC are concerned you must look at the MCA which creates the courts and
which gives the courts their jurisdiction, and generally other specific laws
dealing with specific matters eg. LMA,Probate and Administration of Estate
Act, the Bankruptcy Act, Companies Act.
Jurisdiction is given by statute and can be removed by statute. That is true
only in subordinate courts.(RM)
There are two (2) types of ouster of jurisdiction
i. Express Bar/Ouster
Occurs when a particular statute specifically removes the jurisdiction of
the court in a particular situation. It occurs when there is a specific
provision of a law which removes the jurisdiction of the court in certain
matters. Statute removing the jurisdiction must be very strictly
interpreted. First of all the Constitution had declared that courts are
fountain of justice and if the statute goes against the Constitution must be
construed strictly. In case of Mtenga v. University of Dar es Salaam19
Biron J.,
“It is trite to observe that the court is and has to be for the protection of
the public jealous of its jurisdiction and it will not lightly find its
jurisdiction ousted. The legislature may sometimes does I’m afraid too
often oust the jurisdiction of the courts in certain matters but for the court
to found that the legislature has ousted the jurisdiction, the legislature
must state so in no uncertain and in the most unequivocal terms.”
The court recognizes the Constitution position that it is the fountain of
justice, it is suppose to protect freedom and right of the public. And
therefore, it recognizes the fact that it has the duty to make sure that its
role is not easily removed. But at the same time it recognizes that courts
are established by statutes and therefore there could be some statutory
interference with its jurisdiction. When there is such interference then the
statute making the interference must be very clear not open to any
ambiguity.
ii. Implied Bar/Ouster
The law is not categorical, not clear but that does not mean that the law is
ambiguous. Mtenga’s case discussed a situation where law is ambiguous. An
implied bar does not contain ambiguity. Where an Act of parliament
purports to oust the jurisdiction then it must be very clear. The Act should be
capable of interpretation without any doubt. When we are looking at implied
bar, is when the law creates a right and provide an institution with exclusive
jurisdiction. Section 175 of Land Act creates a High Court Land Division
and gives it exclusive jurisdiction over land matters. There is a problem, the
19 (1971) HCD 247
High Court is created by Article 108, the JALA empowers the Chief Justice
to make regulations relating to the administration of the High Court and the
CJ has exercised his powers by enacting a High Court Registry Rules. They
provide for the establishment for the registry of High Court at different
places of the country. There is one High Court and known as the High Court
of the Republic of Tanzania. Those established by statute. It exercises
jurisdiction over the country. Under the High Court Registry Rules, the CJ
has established various sub registries which exercise local jurisdiction over
the zones in which they are established. Eg. DSM, Tanga, Tabora, Mwanza.
There is one Registrar of High Court and district registrars.
Zanzibar Article 114. It has concurrent jurisdiction with the High Court of
Tanzania as far as matters are concerned in Zanzibar. The suit should be
brought at the High Court for Zanzibar. The High Court of Tanzania does
not exercise jurisdiction in Zanzibar except for election matters brought
under Election Act, 1995.
Under the High Court Registry Rules another registry was created, that is the
High Court Commercial Division which deals only with commercial cases
and was created by Chief Justice under the power given to him under JALA.
There are two situations which are unique, the Land Division of the High
Court is not created by Government Notice, it is not created under the High
Court Registry Rules likewise the Labour Division. The High Court Land
Division is created under section 175 of the Land Act, 1999 while the
Labour Division of High Court is created under section 94 of Employment
and Labour Relations Act, 2004 read together with section 50 of Labour
Institutions Act, 2004.
The parliament took the role of the Chief Justice to establish registries of the
High Court by establishing the Labour Division and Land Division.
Why?
It is in the circumstances those two divisions were created. Labour and land
are the most important elements in the economic of the country. Politicians
try to control land and labour. The politicians are trying in getting away of
the control of the court, Article 107A – fountain of justice and Article 108B
– Independence of judiciary.
Registries are synonymous to divisions.
In the context of ouster, the Land Dispute Settlement Act read together with
the Land Act or the Labour Institutions Act read together with the
Employment and Labour Relations Act do not specifically declare that
matters relating to land or labour shall not be entertained by the other courts.
But by implication because such matters are to be entertained exclusive by
the related divisions of High Court which have under their administrative
tribunal, the jurisdiction of the other courts is automatically ousted. But this
is ouster by implication. The law is silent in respect of other courts while
other institutions relating to particular problem have been established.
Implied arises where institutions for dispute settlement are established by
statutes and statutes are silent on the role of ordinary courts. The
establishment of these courts must be in such a way that they are given
exclusive jurisdiction, if not there is a presumption that they can have
concurrent jurisdiction with ordinary courts. Where there is no absolute bar
there is a presumption of the concurrence of jurisdiction. Where a tribunal is
given exclusive jurisdiction the implication is no other tribunal can entertain
the dispute. Michael Mwailupe v. CRDB20 MJ. Kileo:
The issue: Whether the High Court Land Division has exclusive jurisdiction
in matters relating to mortgage.
20 Land case no. 7 of 2003
The plaintiff filed a case concerning mortgage, the defendant raise an
objection to the effect that a mortgage was a commercial transaction. The
court over ruled the objection by holding that all matters relating to land
where within the exclusive jurisdiction of Land Division of the High Court.
Dunia Worldwide Ltd. v. PSRC & another21 related to sell of factory assets
including immovable properties and it was conducted by tender. Objection
was taken to the effect because the assets concerned a factory which was
permanently affixed on land then that was a land dispute so commercial
division was not competent to entertain. MJ. Mjasiri over ruled the objection
and said although it was a sale of land it was a commercial transaction by
tender and therefore the commercial division of the High Court has
jurisdiction.
Tambueni Abdallah & 89 others v. The NSSF22 The case was looking at
Industrial Court Act and the issue was that whether ordinary courts have
jurisdiction over industrial disputes. The court of Appeal held that the
Industrial Court now Labour Court have exclusive jurisdiction over matters
relating to industrial dispute.
Although under the Industrial Court Act there was no express provision
relating to ouster of the jurisdiction of the court.
Whether it is an express bar or imply bar depends upon the statute you are
dealing with. You must look at the words of the statute. In Tanzania there
has been a movement of creation of administrative tribunals to settle
disputes relating to certain areas in our country eg. Labour, land, tax with an
appellate system which goes to a specific division of the High Court or
tribunal presided by the judge. They do not expressly oust the jurisdiction of
21 Commercial case no. 58 of 200522 Civil Appeal no. 33 of 2000
ordinary courts but by creating exclusive jurisdiction in these tribunals
function in the ordinary courts is implied removed. Hence when considering
section 7 of CPC one must think more of implied bar than express bar.
Express bars are limited.
Concurrent jurisdiction – all with the same original jurisdiction. Block
appellate right. Section 13 of CPC – rule of procedure and not jurisdiction.
Under CPC the lowest court is the District Court with regard with pecuniary
limitation.
Doctrine of Res Judicata and Res Sub Judice.
Res means thing, judicata comes from the word judice which means before
the court. That has been before the court.
Res judicata stated as a doctrine of common law but it has been enacted into
CPC under section 9. It is a doctrine which prevents a party to bring a fresh
suit on the same subject matter and against the same defendant(s) when the
dispute has been already a subject of litigation before a court of competent
jurisdiction and that court has already made a final and conclusive
determination. In other words is a doctrine that bars a relitigation. A person
is not allowed to invoke a jurisdiction of a court as many times as he wants.
The doctrine is centred on one public policy, interest Reipublicae Ul sit finis
Lituum that is it is the interest of the public that litigation should come to a
speedy end. Why? Disputes weaken the society, bringing insecurity as far as
property is concerned. the state is there to promote production and not to
discourage production by entertaining prolong litigations. Also the doctrine
of res judicata is intended to maintain the dignity of the court, works hand in
hand with stare decise (precedent)
When several cases are brought between the same parties on the same
issue(s) base on the same evidence(s) there is likelihood of having
inconsistent decisions on the same dispute that will not create confidence of
the court, and that will not create certainty in the law. The law must be
certainty, predicts of the consequence.
Lockyer v. Ferrman23 gave us the policy behind the doctrine of Res Judicata.
The case said Res Judicata is based on two points of policy. One it is
intended to prevent hardship being caused on the party who is sued. Rich
plaintiff(s) may use the court system to harass poor defendant(s). The
doctrine is based on the principle that no person should be vexed twice on
the same matter. Litigation is not intended to torture people but legal relief.
Res Judicata in criminal cases it relates to 3 pleas, Autrefois convict –
already convicted on the same facts, autrefois acquit – already acquitted on
the same facts, pardon. They are based on Article 13 of the Constitution.
Secondly, it is based on public policy that there must be an end to litigation.
“The rule of res judicata may thus be put upon 2 grounds, the one the
hardship to the individual that he should not be vexed twice on the same
cause and the other public policy that it is in the interest of the state that
should be an end of litigation.”
The case is supported by the case of Dillard v. McKnight.24 The doctrine is
based on sound public policy that there should be an end to litigation. People
had have one fair trial may not have an issue of adjudicated upon for the
second time. It prevents inconvenience upon parties. Res Judicata therefore
has got three roles to play:
23 (1867) L. R 24724 11 AIR 835
i. As regards the parties, they should not be vexed twice. They should be
allowed to go and engage in production activities. They should be saved
from embarrassment of being in court permanently for the same issue(s).
On the part of the court, multiple actions between the same parties and on
the same subject matter wastes the time of the court. The court has got to
hear evidence(s) and can not do that repeatedly on the same case.
Multiple actions between the same parties on the same subject expose the
court to the possibility of making conflicting decisions. This invalidate
the dignity of the court. On the part of the state internecine actions
weaken society, affects production and that contradict the main aim of
the state.
“Development in the law of Res Judicata” 65 Havard Law Review 818
Mauro Capallatti
Besides putting the other party to the expense of 2nd trial, and both him and
his witness to that inconvenience multiple actions waste the time of the court
especially intelligent evaluation of the background of the case requires
covering the same ground gone over before. Where there are several cases
between the same parties and on the same subject matter, the same evidence
is going to be needed and therefore repeatition of the same thing at the
different time. That is expensive, time wasting, boring.
Howett v. Tarte25 developed a position to the effect that the doctrine of res
judicata relates to the doctrine of estoppel. It is a doctrine which prevents a
party from questioning the decision of a court other than by way of an
appeal. And the case of Humphries v. Humphries26 commented on the
decision of Howett v. Tarte (supra).
25 10 C. B (NS) 81326 [1910] 2 KB 531
This is in accordance with justice for while interest reipublicae that litigation
should seize so far as the matters directly adjudicated upon are concerned its
not expedient that litigants should be deprived of independent defence
though over sight when matter can again properly be raised in court.
There are some circumstances when the law will allow the bringing of a
fresh suit, the case is equating the doctrine as the doctrine of expedience that
is not vexing people twice on the same subject matter but should not be used
at the expense of justice. Therefore, the doctrine may be misapplied where
an important point of law was not raised or judgment was obtained by fraud
which is no judgment and therefore will not bar relitigation. A judgment
issued by a court with no jurisdiction is no judgment and can not be used to
bar relitigation.
Judgment obtained in technicalities of the law is no judgment. But
expedience should not be placed aside easily. The rule of expedience is
based on the desire to give stability to court decisions. A judicial system
which does not guarantee the stability of its decision is not worth of its
name.
Edward W. Clearly: Res Judicata re-examined. 5 Yale Law Journal 339 at p.
345
“Besides wasting the time of the courts and litigants to permit multiple
actions leaves undesirable uncertainty in the economic affairs of those
subject to them, this the social interest in preserve free maintainability of
property can be undermined by allowing repeated litigations of the same title
on various grounds existing at the time the first action was brought.
Effective operation of courts in the social and economic scheme requires
their decisions have the respect of and be observed by the parties, the
general public and the courts themselves. Accordingly insufficient weight
prior decisions encourages disrespect and disregard of the courts and their
decisions and invite litigations.”
We are looking at the stability of the economy, stability of the court’s
decision then you must look at the respect of the court. Authoritative
decision. Ram Dev. Malik v. Albert Callow.27 Those are matters relating to
the doctrine
THE DOCTRINE
Has its origin in a very old case, the Duchess of Kingstone’s case.28 There
were proceedings against the Duchess of Kingstone for annulment of his
marriage on the ground of adulterous and the court annulled the marriage.
Subsequently the Duchess was brought before an Eclesiastical court on
charges of bigamy. The issue was whether the charges of bigamy could
stand in views of the fact that is pervious proceedings that the court had
annulled his marriage. The court came up with two propositions:
i. A judgment of court of concurrent jurisdiction on a point is as a plea bar
and as evidence conclusive on any matter between the same parties on
the same subject matter coming either directly or corattelary before the
same court or another court of concurrent jurisdiction.
A person can not raise the issue of a judgment of a court of competent
jurisdiction before the same court or another court of competent
jurisdiction for purpose of questioning it.
Judgment of courts of exclusive jurisdiction is as a plea also a bar and as
evidence conclusive. Res Judicata applies in all circumstance, all courts
27 [1958] EA 9928 164 ER 175
does not have objection. The issue is whether the court has competent
jurisdiction.
The case has the following to say:
But neither the judgment of concurrent or exclusive jurisdiction is evidence
of any matter which came corattelary in question within their jurisdiction no
any matter incidentally cognizable by argument from the judgment.
You can not raise a judgment to question it so long as it is directed clearly.
The doctrine of Res Judicata is not a doctrine of procedure, is a doctrine of
evidence. Is more related to the doctrine of estoppel than to procedure itself.
In order to know the previously decided suit is the same as the present suit
you must look at the pleadings – the record. It goes to evidence than
procedure.
Bynoe v. Bank of England29 restated the doctrine of Res Judicata, said that so
long as there is a decision which has not been reversed, a party shall not be
allowed to bring the same cause of the same case. It used the word
conviction. The judge had the following to say:
“There is however one broad principle lying at the root of the whole matter
to which we drew attention as long as a conviction stands no one against
who it is produceable shall be permitted to aver against it.”
A conviction which is produceable (doctrine of evidence – you produce
evidence), you can not aver against it/question it
It is a doctrine of preclusion (prevention), prevented from arguing against it.
This is what under the Law of Evidence as estoppel by records.
29 [1902] 1 KB 467
Ord v. Ord30 is the case which related the doctrine of estoppel to the doctrine
of Res Judicata. Estoppel prevents you from pleading otherwise. Preclusion
eliminates certain pleadings. In the case the judge stated as follows:
“The words res judicata explain themselves if the race (thing) actually and
directly in dispute has been already adjudicated upon of course by a
competent court it can not be litigated again. There is a wider principle often
treated as covered by the plea of res judicata that prevents litigants from
relying on a claim/defence which he had opportunity of putting before the
court in the earlier proceeding and which he chose not to put forward. The
litigant must admit that which has been declared judiciary to be the truth
with regard to the dispute in order to see what the fact is that he must admit
the truth of one has to see what is the precise question and fact that has been
disputed and decided. You look at the record and see the judgment.
Marginson v. Blackburn Borough Council31 is a case which put forward a
proposition that a doctrine is a broader rule which prohibits the reassessing
of a cause of action which has been litigated to a fresh. You look at the
centre of dispute and itself. Cause of action – asserted by one party and
denied by the other party. Whether that cause of action was in agenda in a
previous suit, if not then it can not be res judicata.
In other words, a person is prohibited from bringing into court a dispute
which had been already determined. Ord’s case (supra) told us is a doctrine
of evidence. How do you know it was an agenda? By looking at the records
and that is why it is called a doctrine of evidence and not procedure.
30 [1923] 2 KB 432, 43931 [1939] 2 KB 426, 437
Marginson’s case says it is estoppel by res judicata, a party can not reopen
what has been already closed. He is estopped from raising it again, it is
estoppel by records.
Point that the doctrine is a doctrine of evidence is further elaborated in
Humphreys v. Humphreys.32 The decision is important for the proposition
that the doctrine is found on the doctrine of estoppel. The judge stated that:
“Estoppel is merely a rule of evidence and if a plaintiff can object to the
reception of evidence on a particular fact because it is an issue which was
properly raised by him and was one could have been traversed/opposed by
the defendant in a former action and has been determined in the plaintiff’s
favour in such former action, there is no reason for disallowing the objection
but if there is no such definite issue then the objection will fail.”
Major points from the case:
The doctrine is a broader rule of evidence and to this broader rule of
evidence prohibits/bars relitigation over matters which have already been a
subject of litigation and conclusive decision by a court of competence
jurisdiction. A judgment of a court of competent jurisdiction is binding upon
the parties falling the same capacity or upon persons litigating under the
part’s title. Look at the nature of the dispute.
Res Judicata is not binding upon the judgment of the court or parties who
were not parties to it. You must look at the identity of the parties. It will bind
if the parties are the same.
Barr v. Jackson33 is an elaboration of the decision of the Duchess of
Kingstone’s case. The court stated as follows:
32 [1910] 2 KB 531, 53633 [1842] 1 Y&C CD 585; Vol. 41 ER 754
The rule against repeating a matter adjudicated is subject to those restrictions
that however essential the establishment of a particular fact may proceed on
them as established and however binding and conclusive the decision may as
to immediate and direct object be those facts are not all necessarily
established conclusive between the parties and that either may again
litigating them for any other purpose as to which they may come into
question provided the immediate subject of the decision being not attempted
to withdraw from its operation as to defeat its direct object.
Circumstances you can use a judgment of previous case but not for the
purpose of defeating the purpose. For the purpose of establishing what
transpired in the previous decision. You can question the judgment on the
appeal.
Elements in the Doctrine of Res Judicata
There are four elements which must co-exist in order to bring the doctrine
into play:
i. There must exists two suits, one suit be pending and another suit must be
decided.
A suit is no defined in the CPC and neither in the Interpretation of Laws
and General Clauses Act but generally it is a proceeding of civil nature
but not all proceedings of civil nature are suits. In order to know you
must look on how it commenced. There are several ways of starting
proceedings in a civil court:
Filing a plaint/chamber summons supported by an affidavit
Filing an originating summons
Filing a notice of motion
Petition/memorandum
Under the Bankruptcy Act, Probate and Administration of Estates Act,
Companies Act, LMA one files a petition. Under the Law Reform Fatal
Accidents & Miscellaneous Provision Act when one wants to file
application for prerogative orders uses a chamber summons supported by
an affidavit and a statement. Also originating summons are used under
the Basic Right and Freedom Enforcement Act and in Equity. In laws
relating to declarations, what is going to be used depends upon the law
you want to use.
The CPC has only one form of commencing civil proceedings, that is
provided under section 22 read together with O. IV r. 1.
O. XLIII r. 2 – Chamber summons supported by an affidavit.
Applications for injunction, prohibition.
Application is a proceeding of civil nature but it is not a suit because it
does not commence by a presentation of a plaint. There is a proviso
which allows the making of oral applications or obtaining orders of the
court by the party filing a memorandum of agreement on issue.
Application may be in writing or orally. In writing must be by chamber
summons and supported by affidavit. They are oral with the leave of the
court.
Section 9 of CPC – Res Judicata relating to a suit or an issue. It is a suit
if brought by a way of a plaint. You look at the cause of action when you
want to apply the doctrine to a suit. But under section 9 there are some
rooms to look to an issue rather than a suit. Generally therefore one must
look what the court decided. It would be the cause of action/issue relating
to the proceedings. That is why even matters determined in applications
could be the subject of the doctrine.
When we look at the concept of a former suit, that has no reference to the
time of filing it, does not mean the first one to be filled. But former suit
(section 9) has reference to the time of decision. Look at the date of
decision and not at the date of filing. It is this decided case which will bar
the court from trying the case which is pending. The time is in relation to
the decision.
ii. Competence of the court.
Both suits must be before courts of competence jurisdiction. The
consequences of filing a suit in incompetent court are that any proceeding
will be declared a nullity, as good as no decision at all. It can not bind
anybody. Even parties can not consent to be tried with the court of
incompetent jurisdiction. Jurisdiction is a question of law and when a
court assume jurisdiction which does not have everything is a nullity.
A previous suit which has been decided by a court without competent
jurisdiction can not operate as res judicata and bar the subsequent suit
from proceeding. This second element is more relevant in respect of the
previous suit than in the subsequent suit because what bars the
subsequent suit for proceeding is the previous suit. Where the pending
suit is before a court with no competent jurisdiction it will be decided on
the issue of jurisdiction and not res judicata. Jurisdiction is determined at
the beginning.
Competence of jurisdiction as a matter of general rule is relevant only in
respect of the previous suit. Jurisdiction could be of a court of concurrent
or exclusive jurisdiction. So long it is a judgment made by a court of
competent jurisdiction the doctrine will be applied when the pending case
is on the court of concurrent jurisdiction, exclusive or the same court.
The issue is whether the previous suit was decided by a competent court.
MCA does not provide for the definition of a court, there is establishment
of court. Section 3, 4 and 5. The definition of court under one law is
contextual, depends upon the context in which the word is used. To know
the meaning you must look at what is described as court in a particular
law. For the purpose of CPC, the court will be DC, RM’s C, HC (Section
3). Decisions of Primary Court do operate as res judicata once it is
established that a Primary court was competent to try that issue. But
Administrative tribunals are not courts and there decisions can not
operate as res judicata in respect of matters which are pending in
ordinary courts. The doctrine relates only where there are courts within
the meaning of the law. Whether the court in the 2nd suit is of competence
jurisdiction or not it is a question of law. You look at the law creating the
court also the law giving it jurisdiction, and subject matter of the
litigation. It is the court which is to decide on whether the previous court
was of competent jurisdiction.
The question is whether the person is authorized to receive a plaint. 21st
Century Industries Ltd. v. Sugar Board & others34, the court was called to
interpret the court of Appeal Rules which require the Registrar to endorse
documents presented to the court of Appeal. Earlier point the Registrar has
to personally endorse the documents presented but in this case Ramadhan J.
as he then was came to different conclusion. Endorsement is not necessary to
be done by the Registrar personally. It can be done by a personal authorized
by the Registrar and acting on behalf of the Registrar.
Use document by anology when the presentation of a document is to be
made to court the one to receive it should not necessarily to be the presiding
officer of the court. Any person authorized could do that.
34 Civil Appeal no. 58/2004
The test whether a person is authorized is whether he has employed as a
Registrar Officer in that particular court. If it is YES commences the
presentation.
Next question, what time and place can a presentation be made? It is for the
purpose of the law of limitation. No provision under the code which says
that the plaint must be presented during office hours. The assumption is that
a plaint is presented at any time provided the person receiving it accepts it.
The code is also silent as to the place of presentation. The court is not a
building, presiding officer plus court’s seal and clerk make a court. There is
no rule which prevents a judge from entertaining a suit while he is at home.
The case of Kitwana Kondo, Mapigano J. when he was at home issued an
injunction. Therefore we are to be guided by Indian authorities which
interpretation of the provision is in parimatelia with our provision OIVR1.
We do not have authority on this. In India; Ratan Javakisan Shekal v. Bapu
Hiraji Kunbi.35 Point on the time and place of presentation. The court said,
“The Judge can accept the plaint out any hour he chooses though outside
office hours and at any place he chooses. I see no reason to doubt that the
clerk of the court who is a dully constituted officer of a court with the power
to accepts the plaint, can receive that plaint outside office hours and outside
the court buildings, although I don not for a moment suggest that the clerk is
bound to accept the plaint out of court hours”.
A plaint can be presented to the proper officer at any time and place. OIV
does not prevent the presentation outside court building or working hours
however, the officer to whom the plaint is presented has discretion, he can
refuse to receive the plaint outside working hours and court buildings. By
35 AIR Vol. 24 Bombay 1937, 25
receiving the plaint outside, the clerk is not committing any illegality. The
suit would have commenced, it does not make the suit incompetent.
There are two categories of officer authorized to receive plaints;
i. Judicial Officers: These are judges, magistrates and Registrars can receive
plaint any where and at any time. They constitute a court.
ii. Ministerial Officers/Administrative Officers
Indian authorities have come up with a proposition when a plaint is
presented to the ministerial officer, the presentation cannot commence
immediately.
Also where a formal step must be taken, the suit does not commence until
that formal step has been taken. For example, when it is necessary to have a
consent, the mere presentation of a plaint does not have the effect of
commencing the suit or there is a need of certificate e.g. Matrimonial
proceedings for dissolution of marriage cannot commence unless there is a
certificate of Conciliation Board and therefore a presentation of the
certificate to the court is conditional.
Presentation must be accompanied with the payment of fees, the mere
presentation of the plaint does not commence a suit, but the court has power
to allow the plaintiff to sue in forma pauperis that is to sue as a pamper (poor
person). So long as the leave is not granted the mere presentation of a plaint
does not constitute the commencement of the suit. This was held in the
Indian case of Ponnusami Chittiar v. Naicker.36 In this case Wallace J, made
the following observations; “It is clear that a suit commences with the
presentation of a plaint, this where leave of the court is required. The suit is
not deemed to have commenced if that leave was not obtained”.
Proper Presentation:
36 AIR (Vol. 16) 1929 Madras 480
Provisions of OVI and OVII. The plaint is the 1st document is a suit, it is a
pleading and therefore it must comply with general rules of pleading
provisions of OVIIR1
It must have a title containing the name of the court and place where the
court is sitting. Names of the parties, plaintiff and defendant. It must be
precise and concise statement of the material facts (Short and clear) giving
rise to a cause of action/complaint. These are the facts if opposed by
defendant must be proved by the plaintiff in order to be entitled to relief.
A plaint also must make a statement of the value of the subject matter,
pecuniary value and an assertion that the court has jurisdiction to try it. A
plaint must contain a prayer for a relief, what court should do for you.
OVIIR1 must be read together with OVI in particular it must comply with
OVIR14 and OVIR15 which requires the pleading to be signed by the
pleader, a plaintiff/his advocate/agent. The signature is not an oath like in
affidavity. It is an indication of the bonafides of the action that the plaint is
presented in good faith. OVIR14 provides that…party and his advocate.
There has been some arguments that rule is mandatory. Basil Pesambili
Mramba v. Mwananchi Publishing Co. Ltd.37 Kalegea J., said “once a plaint
is signed by the party, it is properly before the court that although the
provision of OVIR14 appears to require the advocate also to sign but in
essence they cannot be mandatory, the pleading is complete when it is
signed by the party himself. The plaint must also verified, there must be a
statement to effect that all the statement is true to the knowledge of a person
verifying.
Verification is not an oath, therefore cannot be held of perjury. Verification
is done by the parties themselves or a by a person who to the satisfaction of
37 Civil Case No. 164/2007
the court has knowledge of the fact. When the plaint contains all these
elements it is a proper plaint. It can have technical defects but if you can
identify all these proper elements is a proper plaint.
Proper presentation involves a presentation of the document which on its
face complies with the rules of pleading. Any other document is not a plaint
and therefore its presentation will not be taken as proper presentation for the
commencement of the civil suit, only when the document complies with
provisions of OVIR14, OVIR15 and OVIIR1. they are mandatory
requirements
Princeline Ltd. v. The Trustees of the Port of Bombay38 the judge who
interpreted OIVR1 had the following;
“OIVR1 prescribed that every suit shall be instituted by presenting a plaint
to the court or such officer as it is appoint on its behalf, it further prescribed
that every plaint shall comply with the rules contained in OVI and OVII as
far as they are applicable, in order therefore a plaint can be properly be
presented to the court it must comply with the provision of OVIR14 and
OVIR15 and it is only when a plaint which complies with these rules so far
they are applicable is presented to the court that a suit can be said to be
instituted in the court. Strictly speaking therefore unless and until a plaint is
presented to the court complying with the provision contained in OVIR14
and OVIR15. It cannot be said that a proper plaint is presented to the court
by a party. In order to have a suit commenced, there must be a properly
drawn plaint.
38 AIR (Vol. 37) 1950, Bomb. 130