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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
When the dispute is between the non property class the procedures used were known as the judgment of God. Certain stage in dispute settlement occurred during the slave and feudal period. It . A decision reached in the popular assembling it was a compromise decision which was based on a principle win a little lose a little. This is the procedure which needed informality. Society at that stage could not afford enemity because they were interdependent. no rigid rules. The disputants raised armies and fought battles to take what they considered to be their right. a negotiation. If they belong to different community there was a self help. It was more than arbitration. Disputants were members of the same community. The principle geared at maintaining peace to the society.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. Self help did exist as long as there was community but in self help community do not become stable. At the beginning dispute settlement between makers of the property class was by means of self help.
was believed that God would intervene to show who has the right. torture. Therefore it is the process of inquiring into a complaint. Under the category you had ordeal. Litigation became one source of revenue to the rulers. The court collects the . Parties make complain before the court and the court takes active role to inquire into the dispute. On this you get champions. Property class they challenged one another by what was called duel. And the system they employed is the third stage of settling disputes – Inquisitorial. oath. When feudalism was at its peak. It comes from the word inquisition which came from the word inquire. There was sufficient surplus to maintain a class of people who specialized in resolving disputes. The feudal lords obtained permission from the king to hold courts in their areas and they were paid by the litigants. For the first time the role of the court is seen. 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. Judgment based on evidence. movement from physical judgment to logical judgment.
Under the inquisitorial there was permanent court as a source of revenue. In the inquisitorial system we see an amount of judicial activism when the parties are also involved in presenting the evidence while in . Declaration of absolute right Communal – Judicial knowledge. There is a distinction between the inquisitorial and communal system. It prosecutes the case and eventually it decides on the dispute. independent of the community and does not know the existence of the dispute until it is before it. Inquisitorial – Judicial ignorance.evidences. Five rules of procedures which must be followed before the court plays an active role. it actively investigates the case. It was not a state institution and generally no payment except for the beer. Interest in the future The popular assembly stage it was a stage when the assembly was active-judicial activism. The assembly operated on the basis of judicial knowledge. there was no court while under the inquisitorial there was a full time institution. The communal system did not have a full time institution. Does not know the evidence till it makes inquiry.
Tribunal was there to regulate the fight. The court assumes the attitude of neutrality and therefore there are basic principles which adversarial follows. Party prosecution Parties are in control of the litigation. . 1. The litigants meet in court as enemies (adversaries). It knows the law but not the facts. The court is ignorance of the case. It has the role of regulating procedures. They have active role in the process of dispute. conduct of the case. They are the ones who choose what steps to take and at what time. The court would not do anything in proceedings unless it is moved by the parties. Our system under the Civil Procedure Code is adversarial. They are the ones who know how they have acquired the property. They are defending private property interests.the stage of act of God there was judicial inactivism. have the evidence of the right ownership. Adversarial system as adopted from common law is the system which emphasizes on the passive role of the court. They are the masters of procedures.
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”. referred as the role of referee of the game. The court operates on the basis of judicial ignorance. 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 court sits back and listens.Reason: They are the ones who are interested in the subject matter of litigation. They are the best defendants of their own interests. It was stated in the case of Jones v. Three major elements of Adversarial System 1  All ER 155 . it plays only one role and that is of ensuring that the fight is conducted according to rules. the case becomes known to the court as the parties presenting it.
Principle of parties prosecution. 2. to conduct the case. its only function is to listen and make decisions based on law. Parties investigation. Under adversarial system the court is totally passive. To investigate is to collect evidence. It is .1. Hence they are the ones who mostly active in process of civil litigation. The only thing court knows is the law not the case because of the nature of private property. But you can not have the weight unless you collect them and hence there is a third principle 3. They are the ones supposed to put weight in the weighing scale. The parties are the ones to adduce evidence. The ones who know the nature of evidence to be produced. they are the masters of facts. 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.
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. They have the burden of proof. what to do and at what time and what evidence to produce. They are in control of procedural and evidence. It is the one who should pay the expenses of bringing the witness because he is the one who is prosecuting his case.necessary parties are left with duty to investigate because they are the ones who know the nature of their interest in the subject matter. Order 16 Rule 18. the defendant served with the plaint may file a written statement. The calling of witnesses is the duty of the parties. the right to decide what to do but it is not exercised it is deemed to have been waved. Rule 5. Under party prosecution parties are free to wave their procedural rights. For example Order 8 Rule 1 of the CPC. Because parties are the masters of procedure they have freedom to choose what step to take at what stage. . The two principles (2&3) have some minor principles.
there is direct interaction between the court. Proceedings in our courts are viva voce that is by way of mouth. 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 . 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. You have an election of what to do in terms of procedures and what evidence to use. The court hears and receives live evidence and this is what provided under Order 18 of CPC. Because they are oral parties must appear before the court. Order 18 Rule 8 requires the judge/magistrate to make a record…of a witness. Examination of witnesses by the court orally – Rule 4 You can not have adversarial system without orality and mediacy.The choice of procedural steps to take and which witness to call is called the principle of dispostitive election. the parties and the witnesses.
The witness is not before the court. the witness is not there.court. Now we move from orality to documentation.the use of affidavit evidence. The employ of principle of documentation and immediacy is an exception which should be allowed very rarely. 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. Also Order 26 Rule 1 allows the court to issue commission to examine witnesses. the court presented with a document. To what extent does the adversarial system guarantee access to justice? . Important: The adversarial system emphasizes on the active role of the parties as opposed to the passive role of the court. 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. Emphasizes on orality of the proceedings as opposed to documentation. Rule 1.
Everybody has a right to a fare hearing. When there is legal illiteracy there is no equal access to justice and when the adversarial system requires the parties to prosecute. To operate the adversarial system you must have sufficient advocates. Most people do not know their procedural rights. There are about 800 advocates and most about 95% are in big cities. Our courts have taken position .Access to justice is a right which is in Article 13(6) of the Constitution. Money is the problem. The adversarial as imported does not guarantee equal access to justice and our courts have tried to modify it to suit our local conditions. Access to justice in the cities is not universal. investigate their cases. to decide one must know his right. most litigants are in rural areas. such things can not be done when the parties are ignorance of substantive right – procedural. However access in the court meets certain assumptions. legal assistance is expensive and few can afford them.
Abdul Kisoma2 Qukima A.T 11  L. court proceedings are serious matters and not games. Simon Chitanda v. The defendant rose an objection of time barred. The court should assist the parties. He castigated.R. J. John Magendo v. A child knocked by a car in Morogoro. “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”. 6 years later his father filed a case in his own name. had the following to say. Magistrate dismissed the case. that should be a layman lawyer should assist the parties.that courts in Tanzania should play the assistant role. 2 3  L. It was the duty of the court to advice the party of the law. J. 60 .R. Govani3 as per Biron.T.
Procedure it is a balance between what is good and not good for the society. 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. v. Kerewala4 Msofe J. Procedure is the reflection of attitude of a society towards disputes. Adversarial had undergone judicial modification as the three(3) cases show. 4  T.R.L. In JALA courts are directed to apply principles of common law by modifying them to suit our conditions. It is valid choice which reflects society attitude. 344 at 347 . Mauro Cappellati: Ideas trend in Civil Litigation  61 Mich L. Rev.The Manager Pars Banafish & Industrial Trade Co. Procedures are the meeting point of ideas. Sajjad B. In this case Mr. Robert a layman ought to have guided by the court where possible or necessary.
Give the court procedural powers. Gives general principles but not mechanisms to apply procedural rights. 1st schedule comprises of Orders and Rules. 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 . Social values in communal differ from urban. Main part is the Act itself comprises of 101 sections. ANATOMY OF CIVIL PROCEDURE CODE CPC is divided into two parts. The main Act does not show how the powers of the courts are invoked. Sections enact the enabling position what can be done in civil litigation. Section 68 – Interlocutory application made in the course of civil litigation. Example: Section 22 of CPC – Commencement of a suit by presentation of a plaint.Procedure in communal society differ from urban society. Second Part comprises of two schedules. Is the schedule which shows the procedures of how enabling powers given by the main Act are put into action.
(Bomb) 756 . 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. Initially Rules were made by the parliament. There is a unique situation in the CPC itself. A schedule to an Act is not part of the Act (General Rule). 5  I. Sunder5.R.L. The initial Civil Procedure Rules were enacted by parliament and were taken to be part of the Act. 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. No operation by the main Act without 1st schedule. annulled or replaced in accordance with an Act. Authority: In India. They are also brought into play when court orders arbitration in the cause of civil litigation. 2nd unique situation. The 2nd schedule contains Rules of Arbitration. Sambogh v.Rule in the 1st schedule. section 81 the Chief Justice is declared to be a rule making authority in respect of 1 st and 2nd schedule.
Distinction between section 101 and 82 is 101 relates to forms. modify. We must go back to common law procedures. The forms which were used by High Court of . Under CPC no forms have been prescribed different form Zanzibar Decree where there are prescribed forms. Also section 81 must be read together with section 101. Section 101 empowers Chief Justice to prescribe forms which are to be used in the process of civil litigation. 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.Gives power to amend. Section 82 enumerates the areas in which Chief Justice can make Rules. There is a vacuum under CPC. Those areas cover the whole 1 st and 2nd schedules. annul or to replace them. Section 81 must be read together with section 82. it is silent. Is the subsidiary legislative authority for the purpose of 1 st and 2nd schedule to the Act. Parliament enacts general Rules but specific is left to the court. type of document which are to be used in courts while section 82 relates to procedures.
6 Article 2(3) of JALA . CPC does not enact substantive right it simply enact procedural right.6 CONSTRUCTION OF THE CIVIL PROCEDURE CODE Start by the major premises. are hand maidens – servants in the process of administration of justice and therefore they should be interpreted in a way they will broke justice. Aimed at regulating procedures. General rule where a law affect the substantive rights of the citizens that law should be strictly interpreted.England by the reception clause date are to be used by the Tanzania courts. It is a procedural statute and not substantive. Does not vest any right to a litigant. Does not give or take away any property from any litigant. Laws affecting procedures should not allowed to be masters.
Martyr & Co.Iron & Steelwares Ltd. This was held in the case of South British Insurance Ltd. This proposition leads to another. they are servants.9 Authority for the proposition that in deciding cases courts 7 8 9 (1956) 23 EACA 175.7 and Kendal v. 177  4 AC 504 at 525  EA 210 at 214 . 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. v. 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. v. Lord Pences “Procedure is but a machinery of the law. It does not give right or extinguish a right. after all a channel and means whereby law is administered and justice reached. Hamilton8 These cases are authority for the proposition that rules of procedure are not masters. They are supposed to facilitate the administration of justice. Mohammed Taibjee Ltd. are not expected to broke fair administration of justice. C. W.
v. Technicalities do not resolve the problem simply broke a part from realizing his right. He hope that in the near future the situation will change. 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. It introduces an element of uncertainity in relations in the society. the law required the court to struck out a plaint. At that time 1970 that Rule said so. He stated. Shortly he amended OVIIR10 by introducing a 10 (1970) HCD 235 . Khaki & Camera Prix Ltd. the Chief Justice expressed his regret at the state of the law. This proposition was adopted in our country in Karimjee Properties Ltd. Civil litigation is aimed at having a final and conclusive settlement of dispute.should not rely on technicalities but rather go to the substantive of the dispute. It discourages production which the main role of the state is to facilitate production. The court was called to interpret Order VII Rule X. 10 There was a preliminary objection raised by the defendant that a plaint did not disclose a cause of action.
Std. Fundamental goes to the root of a dispute. 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. Before that time EA Court of Appeal had made a comment on it in Nanji Prabhudas v. limitation where it goes to the root of the case there is no option but to interpret it strictly. However. Bank11 classify procedural law into two (2). Therefore a civil court should not hasten to declare a proceeding a nullity purely on the ground of procedure.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. Eg. where it is not of a fundamental nature then you should give a procedural provision a liberal construction. Courts in Tanzania in recent times have developed a different 11  EA 670 at 683 . Matters of Res Judicata. They affect the jurisdiction of the court or contradict a statute. According to this case the role of a civil court is to do substantial justice without undue technicalities in law. Orthodox position. 1.
THA12 The High Court had entered judgment in favour of the plaintiff because the defendant had not filed a written statement of defence. Ramadhan J. The use of technicalities reflects laziness instead of going into the substance matter. The issue in the appeal was whether the court correctly exercised its power under OVIIIR14 of CPC. Mohammed v.. There are other cases. Courts concentrate on deciding cases on technicalities rather than going to the substantial right.approach. 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. Oppose to the tradition. 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. As a general rule procedural statutes should be interpreted liberally because they do not vest any 12 Civil Appeal 21/1996 (Unreported) . First is found in the case of R. The court is presumed to know its powers conferred to by the law.
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. Strictly interpretation of rules of procedure should be made only when these rules go to the root of the jurisdiction of the court. law and the court is supposed to take judicial notice of the law. 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. But the Court of Appeal has gone to an extremity of even demanding a proper citation of an enabling power being invoked.substantive right to the party. However. When they do not affect the jurisdiction of the court such rule generally must be given a liberal construction. they are fundamental in their nature when they go into the root. To be conversant with its jurisdiction and therefore. the tradition position that procedure is not a master but a servant has . Enabling powers are matters of jurisdiction.
The effect is the occasioning of injustice. 1977 as amended . 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.been extremely watered down by the Court of Appeal of Tanzania. it relates to the mode of dispute settlement before a court of law. Basic Constitution principle that you should not take away people’s rights that they have already had. It does not concern itself with substantive right. there could 13 The Constitution of the United Republic of Tanzania. Procedural law does not enact substantive right. As a matter of general rule when we talk about retroactivity of the law. The Effects of Amendments Article 1313 amendments to substantive law do not have a retrospective effect. we look forward the law affect the future and present and not the past. Meaning an amendment in law has no effect of taking away the right that has already vested in a person.
Example Employment and Labour Relations Act has taken away jurisdiction matter for ordinary courts. . But the Land Act just enact the law relating to jurisdiction. Procedural amendments have a retrospective effect. 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. Unless the law specifically provide that it will not have a retroactive act. 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. Removed from the general division of the High Court and Magistrates. General rule relating to retroactive to the statute does not apply. that law will have a retrospective act. High Court and District Land and House Tribunals will have exclusive jurisdiction. It will only when there is a specific provision which will declare the law to have a retroactive effect.be some procedural right but they could not take away somebody proprietary right. The Land Act has also taken away jurisdiction of ordinary courts.
no. Section 28 had to be read together with section 27. Patel. 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 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. This was a case of summary dismissal and it was pending before ordinary court. Provides for the ways jurisdiction will be exercised by the District and House Tribunals and High Court Land Division. once that Act was enacted all matters relating to land would have removed from the RMs Courts and general High Court. 14 A case related to the Security of Employment Act. It is a procedural law relating to the jurisdiction. 2 of 2002.The procedure is found in the Land Dispute Settlement 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. Presumption is that.
procedural section. The right to own land is the cause of action. Under the Old Land Ordinance a foreigner could own land. parliament is the one to decide whether it should be retrospective or prospective. 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. In 1998. Prior of section 20 of the Land Act. an existing right of action is not taken away.” The law which gives a person a right of action creates 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. the right was extinguished. If the law is silent on retrospective nature of the amendment then the . however. when it deals with procedure only the enactment applies to all actions whether commenced before or after the passing of an act. it did not affect the right of the party. The law enact a substantive right. a foreigner can own land. An amendment in such a law does not extinguish an existing right unless it is expressly stated.
Procedural laws have a retrospective effect unless it is expressly stated because they do not enact substantive 15 (1970) HCD 182 . The case has a 2nd category of statute. The reason is that a person’s vested right is not taken away by procedural amendments. Procedural law does not declare any substantive right though will be declared in the process of dispute settling. 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.General Rule will be applied. section 20 there was a specific declaration of retrospective. that is the statute which do not relate to right of action but deals with matters of procedure only. E. Those are automatically retrospective unless expressly stated by the law. Procedural law has only one purpose. however. under the Land Act. A. And this was commented upon in the case of Msige v. it is used as a means of settling dispute.” Whether an issue of trespass/mortgage is dealt with the…it does not matter the law remains the same.
Substantive laws have no retrospective effect unless it is expressly stated. section 30 of CPC. It asserts a legal right against the potential defendant and makes a demand for redress on the threat of court action. indicating what he is claiming. For a person to write it he must have a legal right and not moral right. it is a common law practice which is followed in Tanzania by virtue of the reception clause. Before there are negotiations. At the time of pronouncing judgment the court is given power to . Also it is by implication in the code. asserting the right and making the demand for redress within the specified period and threatening court action if those demands are not met. No section compels. It is not provided for under the Code.right. 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. THE PRELIMINARIES TO CIVIL LITIGATION Litigation is the last resort to solve the dispute. A greater number of claims/disputes are resolved by demand letters.
there is a possibility that costs will not follow the event. Normally. To order one party in the suit to costs to the other party it is a discretionary power of the court.award costs to the party. he was invited to settle amicably and yet he becomes stubborn. He compelled the plaintiff to go to court and therefore. it is also established that the plaintiff has been compelled to go 16 Section 30(1) . when the issue of costs arise then the plaintiff will be automatically entitled for the costs.16 The General Rule relating to costs is found under section 30(2) of CPC but it is stated in the negative. Sometimes the winner pays the costs to the loser. costs follow the event – who loses compensate the winner because the loser is taken to compel the winner to go to court. The demand notice not only intended to establish a litis contestatio. Demand notice serves a very important purpose that it is used to establish that the defendant was informed about the claim. But under section 30(1) the award of costs is discretionary therefore.
Section 3 and 2 must be read together. Jurisdiction: means power. 2nd STAGE You have decided to go to litigation. nor the Interpretation of Laws and General Applications Act. We have the High . All our courts are established by statutes and therefore. No standard form of demand letter it depends upon the claim. the jurisdiction is determined by statute. It defines what court is and it defines by way of mentioning the court. 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. It is not defined under the Code even under the JALA. The definition is in the context of applicability of the court. a specific one. the CPC applies to courts which are mentioned in the CPC. Article 108 of the Constitution establishes the High Court but does not give it its jurisdiction. the next question is which court will you go? Brings to the concept of jurisdiction. referred to common law. section 3 only 3 courts are concerned.to court. Where is the provision? The answer is no. Under CPC.
it is the power to hear and determine. If one missing you do not have the power. The RMs and DC are courts of limited 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. In respect of DC they are established for a particular district although Chief Justice may give them a wider territorial jurisdiction. It is a court of unlimited civil jurisdiction. This is how the JALA was enacted. both in the context of territory and also in the context of pecuniary value of the subject matter. The Constitution in Article 108(1) allows parliament to enact laws which determine the jurisdiction of the High Court. Jurisdiction relates to power. As a General Rule these are the courts which exercise limited civil jurisdiction.17 Section 5 the Chief Justice has power to establish RMs. both territorial and pecuniary of the subject matter. power to decide essentially 17 Section 4 of MCA .Court with no clear jurisdiction. Power to entertain the dispute.
Section 7 of CPC raises the presumption as to jurisdiction. How this barred is effected? By a general proposition that jurisdiction is determinable at the beginning of the case. However. Article 107A (1) the court is the final authority in 18 See Anisminic’s case . a power to grant a remedy/relief. 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. common law have developed another approach.values. 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. although as the general principle jurisdiction is determinable at the beginning of the trial. Relates only to civil courts defined under section 3 of CPC.18 This presumption as to jurisdiction under section 7 stands out of the fact that the court is the fountain of justice. Anything done without jurisdiction is a nullity. That is called the power to try to dispute. Hearing involves entertainment of the dispute by hearing the parties and their witnesses.
As far as the High Court is concerned you must look at the . you must look at the statute creating it or providing for its jurisdiction. Article 107A has not allowed parliament to oust the jurisdiction of the court in the dispensation of justice and therefore. Article 107A is the major Article in the Constitution that declares as the only instrument which has responsibility of dispensing justice. The Constitution is the basic law of the land.dispensation of justice. any possibility of another instrument to dispense justice finally and conclusive. 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. It is bound by the Constitution and written laws. This general proposition is qualified. That Article is not qualified in any way. Article 107B(2) enacts the principle of independence of judicially. No law can supersede the Constitution unless the Constitution allows it. Section 7 must be read together with Article 107A(1).
LMA. 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. Jurisdiction is given by statute and can be removed by statute.Constitution which established the court and the JALA which provides for jurisdiction of High Court. It occurs when there is a specific provision of a law which removes the jurisdiction of the court in certain matters.Probate and Administration of Estate Act. and generally other specific laws dealing with specific matters eg. the Bankruptcy Act. That is true only in subordinate courts. 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 . Express Bar/Ouster Occurs when a particular statute specifically removes the jurisdiction of the court in a particular situation.(RM) There are two (2) types of ouster of jurisdiction i. Statute removing the jurisdiction must be very strictly interpreted. Companies Act.
the legislature must state so in no uncertain and in the most unequivocal terms. 19 (1971) HCD 247 . When there is such interference then the statute making the interference must be very clear not open to any ambiguity. “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.case of Mtenga v. And therefore. But at the same time it recognizes that courts are established by statutes and therefore there could be some statutory interference with its jurisdiction.” The court recognizes the Constitution position that it is the fountain of justice. 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. it recognizes the fact that it has the duty to make sure that its role is not easily removed. it is suppose to protect freedom and right of the public. University of Dar es Salaam 19 Biron J..
They provide for the establishment for the registry of High Court at different places of the country. There is a problem. not clear but that does not mean that the law is ambiguous.ii. An implied bar does not contain ambiguity. Those established by statute. Mtenga’s case discussed a situation where law is ambiguous. When we are looking at implied bar. The Act should be capable of interpretation without any doubt. 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. Under the . is when the law creates a right and provide an institution with exclusive jurisdiction. There is one High Court and known as the High Court of the Republic of Tanzania. Implied Bar/Ouster The law is not categorical. It exercises jurisdiction over the country. the High Court is created by Article 108. Section 175 of Land Act creates a High Court Land Division and gives it exclusive jurisdiction over land matters. Where an Act of parliament purports to oust the jurisdiction then it must be very clear.
It has concurrent jurisdiction with the High Court of Tanzania as far as matters are concerned in Zanzibar. Mwanza. Zanzibar Article 114. The High Court Land Division is created under section 175 of the Land Act. the CJ has established various sub registries which exercise local jurisdiction over the zones in which they are established.High Court Registry Rules. Tabora. 1999 while the Labour Division of High Court is created under . Eg. The suit should be brought at the High Court for Zanzibar. Under the High Court Registry Rules another registry was created. it is not created under the High Court Registry Rules likewise the Labour Division. The High Court of Tanzania does not exercise jurisdiction in Zanzibar except for election matters brought under Election Act. There is one Registrar of High Court and district registrars. There are two situations which are unique. 1995. Tanga. DSM. 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. the Land Division of the High Court is not created by Government Notice.
The parliament took the role of the Chief Justice to establish registries of the High Court by establishing the Labour Division and Land Division. In the context of ouster. 2004 read together with section 50 of Labour Institutions Act.section 94 of Employment and Labour Relations Act. But by implication because such matters are to be entertained exclusive by the related divisions of High . 2004. 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. Registries are synonymous to divisions. 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. Article 107A – fountain of justice and Article 108B – Independence of judiciary.
Court which have under their administrative tribunal. The court over ruled the 20 Land case no. Kileo: The issue: Whether the High Court Land Division has exclusive jurisdiction in matters relating to mortgage. Michael Mwailupe v. The plaintiff filed a case concerning mortgage. 7 of 2003 . The law is silent in respect of other courts while other institutions relating to particular problem have been established. Where there is no absolute bar there is a presumption of the concurrence of jurisdiction. The establishment of these courts must be in such a way that they are given exclusive jurisdiction. Where a tribunal is given exclusive jurisdiction the implication is no other tribunal can entertain the dispute. if not there is a presumption that they can have concurrent jurisdiction with ordinary courts. Implied arises where institutions for dispute settlement are established by statutes and statutes are silent on the role of ordinary courts. CRDB20 MJ. the jurisdiction of the other courts is automatically ousted. the defendant raise an objection to the effect that a mortgage was a commercial transaction. But this is ouster by implication.
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. 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. Tambueni Abdallah & 89 others v. The court of Appeal held that the Industrial Court now Labour Court have exclusive jurisdiction over matters relating to industrial dispute. The NSSF 22 The case was looking at Industrial Court Act and the issue was that whether ordinary courts have jurisdiction over industrial disputes.objection by holding that all matters relating to land where within the exclusive jurisdiction of Land Division of the High Court. 33 of 2000 . v. PSRC & another 21 related to sell of factory assets including immovable properties and it was conducted by tender. 58 of 2005 Civil Appeal no. 21 22 Commercial case no. Dunia Worldwide Ltd.
You must look at the words of the statute. Block appellate right. Hence when considering section 7 of CPC one must think more of implied bar than express bar. . Express bars are limited. Labour. Whether it is an express bar or imply bar depends upon the statute you are dealing with. Under CPC the lowest court is the District Court with regard with pecuniary limitation. land. In Tanzania there has been a movement of creation of administrative tribunals to settle disputes relating to certain areas in our country eg.Although under the Industrial Court Act there was no express provision relating to ouster of the jurisdiction of the court. Section 13 of CPC – rule of procedure and not jurisdiction. Concurrent jurisdiction – all with the same original jurisdiction. 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.
judicata comes from the word judice which means before the court. Why? Disputes weaken the society. Also the doctrine of res .Doctrine of Res Judicata and Res Sub Judice. 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. Res means thing. bringing insecurity as far as property is concerned. interest Reipublicae Ul sit finis Lituum that is it is the interest of the public that litigation should come to a speedy end. 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. The doctrine is centred on one public policy. A person is not allowed to invoke a jurisdiction of a court as many times as he wants. In other words is a doctrine that bars a relitigation. the state is there to promote production and not to discourage production by entertaining prolong litigations.
Ferrman23 gave us the policy behind the d octrine of Res Judicata. The case said Res Judicata is based on two points of policy. predicts of the consequence. Lockyer v. 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. Litigation is not intended to torture people but legal relief. and that will not create certainty in the law. Rich plaintiff(s) may use the court system to harass poor defendant(s). autrefois acquit – already acquitted on the same facts. They are based on Article 13 of the Constitution. pardon. One it is intended to prevent hardship being caused on the party who is sued. The law must be certainty. Autrefois convict – already convicted on the same facts. The doctrine is based on the principle that no person should be vexed twice on the same matter.judicata is intended to maintain the dignity of the court. 23 (1867) L. Res Judicata in criminal cases it relates to 3 pleas. R 247 .
On the part of the court. As regards the parties.” The case is supported by the case of Dillard v. McKnight. People had have one fair trial may not have an issue of adjudicated upon for the second time. it is based on public policy that there must be an end to litigation. Multiple actions 24 11 AIR 835 . They should be saved from embarrassment of being in court permanently for the same issue(s). Res Judicata therefore has got three roles to play: i.Secondly. 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. they should not be vexed twice. multiple actions between the same parties and on the same subject matter wastes the time of the court. It prevents inconvenience upon parties.24 The doctrine is based on sound public policy that there should be an end to litigation. They should be allowed to go and engage in production activities. The court has got to hear evidence(s) and can not do that repeatedly on the same case. “The rule of res judicata may thus be put upon 2 grounds.
“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. boring. That is expensive. On the part of the state internecine actions weaken society. the same evidence is going to be needed and therefore repeatition of the same thing at the different time. B (NS) 813 . Tarte25 developed a position to the effect that the doctrine of res judicata relates to the doctrine of estoppel. time wasting. And the 25 10 C.between the same parties on the same subject expose the court to the possibility of making conflicting decisions. It is a doctrine which prevents a party from questioning the decision of a court other than by way of an appeal. affects production and that contradict the main aim of the state. 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. Howett v. This invalidate the dignity of the court. Where there are several cases between the same parties and on the same subject matter.
case of Humphries v. Humphries26 commented on the decision of Howett v. Judgment obtained in technicalities of the law is no judgment. A judgment issued by a court with no jurisdiction is no judgment and can not be used to bar relitigation. But expedience should not be placed aside 26  2 KB 531 . 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. 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. Tarte (supra). There are some circumstances when the law will allow the bringing of a fresh suit. 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.
5 Yale Law Journal 339 at p.” We are looking at the stability of the economy. stability of the court’s decision then you must look at the respect of the . 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. Effective operation of courts in the social and economic scheme requires their decisions have the respect of and be observed by the parties. Accordingly insufficient weight prior decisions encourages disrespect and disregard of the courts and their decisions and invite litigations.easily. Edward W. The rule of expedience is based on the desire to give stability to court decisions. 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. A judicial system which does not guarantee the stability of its decision is not worth of its name. Clearly: Res Judicata re-examined. the general public and the courts themselves.
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. Ram Dev.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. Malik v. Albert Callow. the Duchess of Kingstone’s case. Authoritative decision. A person can not raise the issue of a judgment of a court of competent jurisdiction before the same court or 27 28  EA 99 164 ER 175 .27 Those are matters relating to the doctrine THE DOCTRINE Has its origin in a very old case. 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.court. Subsequently the Duchess was brought before an Eclesiastical court on charges of bigamy.
Res Judicata applies in all circumstance. The doctrine of Res Judicata is not a doctrine of procedure.another court of competent jurisdiction for purpose of questioning it. . all courts does not have objection. You can not raise a judgment to question it so long as it is directed clearly. The issue is whether the court has competent jurisdiction. Is more related to the doctrine of estoppel than to procedure itself. 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. is a doctrine of evidence. It goes to evidence than procedure. In order to know the previously decided suit is the same as the present suit you must look at the pleadings – the record. Judgment of courts of exclusive jurisdiction is as a plea also a bar and as evidence conclusive.
Estoppel prevents you from pleading otherwise. prevented from arguing against it. a party shall not be allowed to bring the same cause of the same case. Ord30 is the case which related the doctrine of estoppel to the doctrine of Res Judicata. Bank of England29 restated the doctrine of Res Judicata. This is what under the Law of Evidence as estoppel by records. It used the word conviction. said that so long as there is a decision which has not been reversed. In the case the judge stated as follows: 29 30  1 KB 467  2 KB 432. Preclusion eliminates certain pleadings. 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.Bynoe v. 439 . you can not aver against it/question it It is a doctrine of preclusion (prevention).” A conviction which is produceable (doctrine of evidence – you produce evidence). Ord v.
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.“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. Cause of action – asserted by one party and denied by the other party. Whether that cause of action 31  2 KB 426. You look at the centre of dispute and itself. 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. Marginson v. 437 . You look at the record and see the judgment.
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
 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
 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
. what is going to be used depends upon the law you want to use.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. In laws relating to declarations. The CPC has only one form of commencing civil proceedings. Also originating summons are used under the Basic Right and Freedom Enforcement Act and in Equity. 1. 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. LMA one files a petition. Probate and Administration of Estates Act. that is provided under section 22 read together with O. Companies Act. IV r.
Application may be in writing or orally. that has no reference to the time of filing it. Applications for injunction. You look at the cause of action when you want to apply the doctrine to a suit. prohibition. XLIII r. When we look at the concept of a former suit. does not mean the first . Generally therefore one must look what the court decided. In writing must be by chamber summons and supported by affidavit. Application is a proceeding of civil nature but it is not a suit because it does not commence by a presentation of a plaint.O. 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. It is a suit if brought by a way of a plaint. They are oral with the leave of the court. Section 9 of CPC – Res Judicata relating to a suit or an issue. That is why even matters determined in applications could be the subject of the doctrine. But under section 9 there are some rooms to look to an issue rather than a suit. 2 – Chamber summons supported by an affidavit. It would be the cause of action/issue relating to the proceedings.
This second element is more relevant in respect of the previous suit than in the subsequent suit because what . Jurisdiction is a question of law and when a court assume jurisdiction which does not have everything is a nullity. ii. Even parties can not consent to be tried with the court of incompetent jurisdiction. Competence of the court.one to be filled. It is this decided case which will bar the court from trying the case which is pending. The consequences of filing a suit in incompetent court are that any proceeding will be declared a nullity. It can not bind anybody. But former suit (section 9) has reference to the time of decision. Both suits must be before courts of competence jurisdiction. 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. Look at the date of decision and not at the date of filing. The time is in relation to the decision. as good as no decision at all.
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 could be of a court of concurrent or exclusive jurisdiction. Competence of jurisdiction as a matter of general rule is relevant only in respect of the previous suit. MCA does not provide for the definition of a court. the court will be DC. HC (Section 3). Jurisdiction is determined at the beginning. depends upon the context in which the word is used. exclusive or the same court. there is establishment of court. 4 and 5. To know the meaning you must look at what is described as court in a particular law. RM’s C. 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. Section 3. The definition of court under one law is contextual. The issue is whether the previous suit was decided by a competent court. For the purpose of CPC. Decisions of Primary .
as he then was came to different conclusion. 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. Endorsement is not 34 Civil Appeal no. You look at the law creating the court also the law giving it jurisdiction. the court was called to interpret the court of Appeal Rules which require the Registrar to endorse documents presented to the court of Appeal. and subject matter of the litigation. 58/2004 . Whether the court in the 2nd suit is of competence jurisdiction or not it is a question of law. It is the court which is to decide on whether the previous court was of competent jurisdiction. 21 st Century Industries Ltd. The doctrine relates only where there are courts within the meaning of the law.Court do operate as res judicata once it is established that a Primary court was competent to try that issue.The question is whether the person is authorized to receive a plaint. Sugar Board & others34. v. Earlier point the Registrar has to personally endorse the documents presented but in this case Ramadhan J.
when he was at home issued an injunction. The assumption is that a plaint is presented at any time provided the person receiving it accepts it. Next question. Any person authorized could do that. what time and place can a presentation be made? It is for the purpose of the law of limitation. It can be done by a personal authorized by the Registrar and acting on behalf of the Registrar.necessary to be done by the Registrar personally. 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. If it is YES commences the presentation. The court is not a building. Therefore we . The case of Kitwana Kondo. There is no rule which prevents a judge from entertaining a suit while he is at home. Mapigano J. presiding officer plus court’s seal and clerk make a court. No provision under the code which says that the plaint must be presented during office hours. The code is also silent as to the place of presentation. The test whether a person is authorized is whether he has employed as a Registrar Officer in that particular court.
25 . Bapu Hiraji Kunbi. The suit would have commenced. although I don not for a moment suggest that the clerk is bound to accept the plaint out of court hours”. he can refuse to receive the plaint outside working hours and court buildings. the clerk is not committing any illegality.are to be guided by Indian authorities which interpretation of the provision is in parimatelia with our provision OIVR1. it does not make the suit incompetent. In India. We do not have authority on this. A plaint can be presented to the proper officer at any time and place. 24 Bombay 1937. “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. Ratan Javakisan Shekal v. OIV does not prevent the presentation outside court building or working hours however. can receive that plaint outside office hours and outside the court buildings. 35 AIR Vol.35 Point on the time and place of presentation. the officer to whom the plaint is presented has discretion. The court said. By receiving the plaint outside.
They constitute a court. the mere presentation of the plaint does not commence a suit. ii.g. when it is necessary to have a consent.There are two categories of officer authorized to receive plaints. Judicial Officers: These are judges. the suit does not commence until that formal step has been taken. Ministerial Officers/Administrative Officers Indian authorities have come up with a proposition when a plaint is presented to the ministerial officer. the mere presentation of a plaint does not have the effect of commencing the suit or there is a need of certificate e. 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. Also where a formal step must be taken. For example. the presentation cannot commence immediately. magistrates and Registrars can receive plaint any where and at any time. Presentation must be accompanied with the payment of fees. but the court has power to allow the plaintiff to sue . i.
made the following observations. It must be precise and concise statement of the material facts (Short and clear) giving rise to a cause of action/complaint. plaintiff and defendant. Proper Presentation: Provisions of OVI and OVII. This was held in the Indian case of Ponnusami Chittiar v. this where leave of the court is required. The plaint is the 1st document is a suit. “It is clear that a suit commences with the presentation of a plaint.in forma pauperis that is to sue as a pamper (poor person). 36 AIR (Vol. 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. So long as the leave is not granted the mere presentation of a plaint does not constitute the commencement of the suit. Naicker. These are the facts if opposed by defendant must be proved by the plaintiff in order to be entitled to relief. 16) 1929 Madras 480 . Names of the parties.36 In this case Wallace J. The suit is not deemed to have commenced if that leave was not obtained”.
37 Kalegea J. OVIR14 provides that…party and his advocate. said “once a plaint is signed by the party. what court should do for you. the pleading is complete when it is signed by the party himself. 37 Civil Case No. It is an indication of the bonafides of the action that the plaint is presented in good faith. Basil Pesambili Mramba v. Ltd.A plaint also must make a statement of the value of the subject matter. 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. 164/2007 . pecuniary value and an assertion that the court has jurisdiction to try it. 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. There has been some arguments that rule is mandatory. A plaint must contain a prayer for a relief. The signature is not an oath like in affidavity.. 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. Mwananchi Publishing Co. a plaintiff/his advocate/agent.
OVIR15 and OVIIR1. When the plaint contains all these elements it is a proper plaint. 130 . “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. 37) 1950. It can have technical defects but if you can identify all these proper elements is a proper plaint. only when the document complies with provisions of OVIR14. it further prescribed that every plaint shall comply with the rules contained in OVI and OVII as 38 AIR (Vol. The Trustees of the Port of Bombay 38 the judge who interpreted OIVR1 had the following. Verification is done by the parties themselves or a by a person who to the satisfaction of the court has knowledge of the fact. Bomb. they are mandatory requirements Princeline Ltd. therefore cannot be held of perjury.Verification is not an oath. 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. Proper presentation involves a presentation of the document which on its face complies with the rules of pleading. v.
In order to have a suit commenced. there must be a properly drawn plaint. It cannot be said that a proper plaint is presented to the court by a party. Strictly speaking therefore unless and until a plaint is presented to the court complying with the provision contained in OVIR14 and OVIR15. 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.far as they are applicable. .
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