Civil Procedure Notes

CIVIL PROCEDURE Two questions a court must answer, one who has done it?. That question is aimed at establishing responsibility, at enforcement and therefore it is aimed at punishment. Therefore a question which is answered by a criminal court. All criminal proceedings aimed at establishing a person responsible for a particular act. Second question is who is liable? It is asked in proceedings which are not punitive, not aimed at establishing responsibility. It is asked in proceedings which are aimed at compensation or restoration of status quo. Every person has got two capacities. Public capacity as a member of a society, this relates to a community. This is a capacity qua citizen. That capacity is the one which determines his duties to the state and that is a relationship normally handled by public law. Public law is the law of general application which determines the relationship of an individual to the state among them criminal laws. Therefore dispute settlement procedures relating to criminal law are taken care by The Criminal Procedure Act.

When there is a dispute between state and individual in his public capacity then that dispute is settled by the procedures laid down under CPA. There is a certain capacity, capacity qua individual-private life relations. There are laws which relate to civil relations. Civil is not defined under law dictionaries, we use ordinary dictionary meaning private relations between individuals. Disputes arise out of these relations are known as civil suits and the act of going to court when there is a dispute between individuals in their individual capacity is known as litigation. Lis means a dispute (Lis inter partes) Lis is not only inter partes, it must be contested and this is known as Litis Contestatio and when you go to court you get what is known litigation. Litigation is the act of invoking the jurisdiction of a tribunal of competent jurisdiction to resolve a dispute between one person known as a plaintiff, a complainant and another person known as a defendant and who is alleged to be responsible for the mischief complained off. The procedure of settling disputes of a civil nature is called the

civil procedure. The basic law for civil procedure is the Civil Procedure Code. History of civil litigation. There are four stages in the history of civil litigation: 1. Communal Stage It was characterized by the popular assembling which comprised of the members of the community including the disputants. The popular existed when the society was living a communal life. The level of development of productive forces in the community was very low hence no surplus in the community. And because of that there were no classes and hence there was no ruling group and ruled group. Property holding was communal, there were no absolute right to property, to the contrary there was relative right – usufructuary right. Once right to property depended on other people right to the property. People were interdependent one another and therefore they have to remain friends. Disputes revolved around the right to use. The whole community was free to participate in

finding a solution to a dispute and dispute settlements took a form of discussion (The Palaven) all members of the community were allowed to propose the solution. A decision reached in the popular assembling it was a compromise decision which was based on a principle win a little lose a little. It was more than arbitration, a negotiation. The principle geared at maintaining peace to the society. Society at that stage could not afford enemity because they were interdependent. This is the procedure which needed informality, no rigid rules. Disputants were members of the same community. If they belong to different community there was a self help. Self help did exist as long as there was community but in self help community do not become stable. Certain stage in dispute settlement occurred during the slave and feudal period. At the beginning dispute settlement between makers of the property class was by means of self help. The disputants raised armies and fought battles to take what they considered to be their right. When the dispute is between the non property class the procedures used were known as the judgment of God. It was believed that God

would intervene to show who has the right. Under the category you had ordeal, torture, oath. Property class they challenged one another by what was called duel. On this you get champions. These champions were employed to fight on behalf of the disputants and whoever employed a lose champion is taken as a judgment form God that he has no right. When feudalism was at its peak, movement from physical judgment to logical judgment. Judgment based on evidence. The feudal lords obtained permission from the king to hold courts in their areas and they were paid by the litigants. Litigation became one source of revenue to the rulers. There was sufficient surplus to maintain a class of people who specialized in resolving disputes. And the system they employed is the third stage of settling disputes – Inquisitorial. It comes from the word inquisition which came from the word inquire. Therefore it is the process of inquiring into a complaint. For the first time the role of the court is seen. Parties make complain before the court and the court takes active role to inquire into the dispute. The court collects the

evidences, it actively investigates the case. It prosecutes the case and eventually it decides on the dispute. Five rules of procedures which must be followed before the court plays an active role. There is a distinction between the inquisitorial and communal system. The communal system did not have a full time institution, there was no court while under the inquisitorial there was a full time institution. It was not a state institution and generally no payment except for the beer. The assembly operated on the basis of judicial knowledge. Under the inquisitorial there was permanent court as a source of revenue, independent of the community and does not know the existence of the dispute until it is before it. Does not know the evidence till it makes inquiry. Inquisitorial – Judicial ignorance, Declaration of absolute right Communal – Judicial knowledge, Interest in the future The popular assembly stage it was a stage when the assembly was active-judicial activism. In the inquisitorial system we see an amount of judicial activism when the parties are also involved in presenting the evidence while in

the stage of act of God there was judicial inactivism. Tribunal was there to regulate the fight. Our system under the Civil Procedure Code is adversarial. The litigants meet in court as enemies (adversaries). They are defending private property interests. They are the ones who know how they have acquired the property, have the evidence of the right ownership. They have active role in the process of dispute. The court is ignorance of the case. It knows the law but not the facts. It has the role of regulating procedures. Adversarial system as adopted from common law is the system which emphasizes on the passive role of the court. The court assumes the attitude of neutrality and therefore there are basic principles which adversarial follows; 1. Party prosecution Parties are in control of the litigation, conduct of the case. They are the ones who choose what steps to take and at what time. They are the masters of procedures. The court would not do anything in proceedings unless it is moved by the parties.

Reason: They are the ones who are interested in the subject matter of litigation. They are the best defendants of their own interests. The court operates on the basis of judicial ignorance, the case becomes known to the court as the parties presenting it. The court sits back and listens, it plays only one role and that is of ensuring that the fight is conducted according to rules, referred as the role of referee of the game. It was stated in the case of Jones v. National Coal Board 1 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 1 st 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 1 st 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 1 st 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.

6

Article 2(3) of JALA

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. 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 7 8 9

(1956) 23 EACA 175, 177 [1978] 4 AC 504 at 525 [1973] EA 210 at 214

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 10

(1970) HCD 235

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); 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 11

[1968] EA 670 at 683

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 12

Civil Appeal 21/1996 (Unreported)

substantive right to the 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 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

13

The Constitution of the United Republic of Tanzania, 1977 as amended

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 14

(1967) HCD 435

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 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

15

(1970) HCD 182

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 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

16

Section 30(1)

to court. No standard form of demand letter it depends upon the claim. 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 17

Section 4 of MCA

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 18

See Anisminic’s case

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 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. 19

(1971) HCD 247

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 20

Land case no. 7 of 2003

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 NSSF 22 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 2 nd 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. A person can not raise the issue of a judgment of a court of competent jurisdiction before the same court or 27 28

[1958] EA 99 164 ER 175

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 you from pleading otherwise. Preclusion eliminates certain pleadings. In the case the judge stated as follows:

29 30

[1902] 1 KB 467 [1923] 2 KB 432, 439

“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

31

[1939] 2 KB 426, 437

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 plaintiff’s favour in such former action, there is no reason 32

[1910] 2 KB 531, 536

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 of a particular fact may proceed on them as established and 33

[1842] 1 Y&C CD 585; Vol. 41 ER 754

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 2 nd 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. 21 st Century Industries Ltd. v. Sugar Board & others 34, 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 have commenced, it does not make the suit incompetent. 35

AIR Vol. 24 Bombay 1937, 25

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 Bombay 38 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.