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.
2
3
[1973] L.R.T 11
[1973] L.R.T. 60
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.
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.
4
[1996] T.L.R. 344 at 347
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.
5
[1940] I.L.R. (Bomb) 756
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 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
6
Article 2(3) of JALA
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.
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
7
(1956) 23 EACA 175, 177
[1978] 4 AC 504 at 525
9
[1973] EA 210 at 214
8
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
10
(1970) HCD 235
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);
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.
11
[1968] EA 670 at 683
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 party. Strictly interpretation of rules
12
Civil Appeal 21/1996 (Unreported)
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
technicalities in which
basis of procedural
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 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.
13
The Constitution of the United Republic of Tanzania, 1977 as amended
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:
14
(1967) HCD 435
“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 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.
15
(1970) HCD 182
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 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.
16
Section 30(1)
2nd STAGE
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 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
17
Section 4 of MCA
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
18
See Anisminic’s case
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
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.,
19
(1971) HCD 247
“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 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.
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
20
Land case no. 7 of 2003
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.
21
22
Commercial case no. 58 of 2005
Civil Appeal no. 33 of 2000
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 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 d
octrine 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.
23
(1867) L. R 247
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:
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
24
11 AIR 835
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
25
10 C. B (NS) 813
case of Humphries v. Humphries26 commented on the
decision of Howett v. Tarte (supra).
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
26
[1910] 2 KB 531
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.
27
28
[1958] EA 99
164 ER 175
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 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.
Ord v. Ord30 is the case which related the doctrine of
estoppel to the doctrine of Res Judicata. Estoppel prevents
29
30
[1902] 1 KB 467
[1923] 2 KB 432, 439
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
31
[1939] 2 KB 426, 437
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.
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
32
[1910] 2 KB 531, 536
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:
The rule against repeating a matter adjudicated is subject to
those restrictions that however essential the establishment
33
[1842] 1 Y&C CD 585; Vol. 41 ER 754
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
34
Civil Appeal no. 58/2004
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.
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 receiving the plaint outside, the clerk is not
committing
any
illegality.
The
suit
would
commenced, it does not make the suit incompetent.
35
AIR Vol. 24 Bombay 1937, 25
have
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:
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.
36
AIR (Vol. 16) 1929 Madras 480
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.
37
Civil Case No. 164/2007
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 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
38
AIR (Vol. 37) 1950, Bomb. 130
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.