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