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2.0 Preliminaries to Litigation

I. Text Books

1. D.F. Mulla, Code of Civil Procedure 1908: in 2 volumes.

A practitioners book to be used carefully because
some of the principles do not apply in Tanzania.
2. Rao and Chitaley Code of Civil Procedure: in 3 volumes
3. Bullen and Leaks Precedents on Pleadings edited by I.H.
Jacob Suitable for practice drafting.
4. I.H. Jacob Chittys Queens Bench Forms. It gives
method of drafting and interrogating. It covers many
things except Plaints.
5. Lord EVERSHED Atkins Court Forms 33Volumes very
relevant to students.
6. Odgers On Pleadings
7. Shaukut Mahmood The Code of Civil Procedure 1908
8. Flemming Civil Procedure America book.
9. Spry Civil Procedure in East Africa

II. Statutes
Civil Procedure Is a procedure of litigation before the
Courts in civil matters. It does not give any litigant a right
but it enacts a procedure through which a right can be

It is a Procedural law unlike Substantive law which gives a

right to a litigant.
Functions of Civil Procedure
It helps resolve the arguments presented from the parties.
Civil Procedure helps in making availability of right clear
through procedural rules.
Procedural law assures you that the rights given by the
substantial law are obtainable.

The Civil Procedure Code of Tanzania is divided into two

1. The Main Act
2. The Schedules
In Tanzania the Schedules are regarded as part of the Act
which is a departure from the general rule of interpretation
that, neither schedules nor preambles are part of the Act.
Construction of the Civil Procedure Code
Since Civil Procedure is adjectival law and a way of
facilitating administration of justice or rather the way
through which a right is obtained, the provisions of Civil
Procedure Code should be given the literal meaning.
All rules of procedure must be geared at speedy ending of
litigations and at a lower cost. Procedure is a servant which
should facilitate and not hinder the administration of justice.
175, 177.
Procedural statutes must be interpreted liberally. This
position is illustrated in KENDAL V HAMILTON (1878)4 AC 504
at page 525:

Procedure is but a machinery of the law after all, the

channel and means whereby is administered and justice
reached. It strangely departs from its proper office when in
place of facilitating it is permitted to obstruct and even
extinguish legal rights and thus made to govern where it
ought to subserve.
Procedural Statutes should not be construed in such a
technical way that will make the court fail to do substantial
justice between the parties.
Preliminaries to Litigation
In any litigation of a civil nature there must be two things coexisting:
1. Parties to a dispute
NB: Not all disputes go to court but only those which are
The claimant must present a demand note upon the
prospective defendant in East Africa it is called a Letter of
A LETTER OF DEMAND: Is a letter presented to the
prospective defendant by the prospective plaintiff laying
down the claims by the prospective plaintif against the
prospective defendant and demanding a remedy at the
threat of being sued. There is no a prescribed form of a
letter of demand provided it provides the necessary
Three things in a Letter of Demand:
1. Concise statement of claim - which should contain
particulars sufficient for the prospective defendant to
know what is required by him.
2. That letter should contain a clear and unambiguous
demand that the claim should remain good.
3. The letter should prescribe a limitation period normally
14 days within which the claim should be met or else
legal proceedings may be instituted without any further

notice. This is what has made the letter be referred to

as a notice with an intention to sue.
NB. The Civil Procedure Code does not provide for a letter of
demand. It is provided for in the Advocates Remunerations
and Taxation of Costs Rules GN 193 of 1924 under Rule 61 it
is provided as follows:
If the Plaintiff in any action has not given the
defendant notice of his intention to sue, and the defendant
pays the amount claimed or found to
be due, at or before
the first hearing no advocates fee will be allowed except on
the special orders of the judge."
Section 13 of the Civil Procedure Code provides that every
suit should be instituted in the Court of the lowest grade
competent to try it.
What is Jurisdiction?
Is the power to hear and determine matters which are
litigated before a tribunal. Jurisdiction is a question of law a
creature of statute e.g. in Tanzania the High Court is
established by the Constitution and the subordinate courts
are established by the Magistrates Court Act, No. 2 of 1984.
Jurisdiction is determined before the beginning of the
Refer the case of Anisminic Case which is just persuasive
for Tanzania.

1. Territorial Jurisdiction
Every court has a limited area is i.e. geographical area in
which it operates. This is provided by statute establishing
that court and in some cases by the subsidiary legislation.

In Tanzania there is only one court having jurisdiction over

the whole country, this is the High Court of Tanzania.
There are two High Courts in the United Republic of Tanzania.
These are the High Court of the United Republic of Tanzania
and the High Court of Zanzibar. The two High Courts have
concurrent jurisdiction.
Note: The High Court of the United Republic has no
jurisdiction over matters of
Zanzibar but over matters
arising from the mainland, except over matters
to election. The High Court of Zanzibar has no jurisdiction
over election petitions arising from the Mainland but for
matters of petition arising
The High Court of the United Republic of Tanzania has
several registries. However the High Court has no territorial
The High Court Registries Rules give guidance on the
procedure of filing a case in registry in which the case arises,
or the area where the parties reside. There is an exception to
this rule depending on the circumstances of the case
therefore, a case can be filed in any registry but it will be
transferred to its proper registry.
District Court
Territorial jurisdiction of a District Court is the boundaries for
which the district is established.
Refer the Magistrates Courts Act, 1984.
Note: That there are two types of District Magistrates. Those
designated as Civil Magistrates - who are entitled to hear
civil cases. And those not designated to hear civil cases.
Resident Magistrates Courts

Magistrates of the RMs Courts have a wider jurisdiction.

Their territorial jurisdiction is the region in which that court is
Refer the Magistrates Court Act, 1984.
Primary Courts
Territorial jurisdiction of Primary Court is limited to the
district where it is established.
Eg. the Primary Court Manzese is the Primary Court of
Kinondoni at Manzese.
Jurisdiction in respect of Immovable Property
The court in which area the property is situated has
jurisdiction over the property. In claims relating to
immovable property the party can chose between where the
claim arose and the area where the other party voluntarily
resides and/or works for gain. Primary Court has unlimited
jurisdiction over property held under customary law and in
matters of Islamic Law.

2. Exclusive Jurisdiction
This is jurisdiction vested in a particular court in exclusion of
any other court. This jurisdiction is normally vested in that
court by a statute e.g. Workmens Compensation Ordinance
which vests exclusive original jurisdiction over matters
relating to the Ordinance to the District Court; and the Rent
Restriction Act(REPEALED & LAND ACT CAP 113 IS IN
EXISTANCE) which grants exclusive original jurisdiction over
matters relating to landlord and tenant to the Housing
3. Concurrent Jurisdiction
Courts are said to exercise concurrent jurisdiction when they
can exercise original jurisdiction over the same matter.

4. Pecuniary Jurisdiction
Refer to Magistrates Courts Act, 1984.
All courts except the High Court are courts of limited
-1- The Magistrates Courts Act provides for unlimited
jurisdiction over Islamic & Customary Law to Primary Courts
but the Act does not provide specifically
jurisdiction over civil matters related to Islamic
Customary Law.
-2- Under the MCA all civil proceedings in respect of Islamic
and Customary
law must be commenced in primary
court unless the Republic or the President is a party or the
High Court has granted leave to the parties to
commence the civil proceedings.
-3- A primary court has no jurisdiction to civil case unless
customary law is a applicable or the proceedings are for the
recovery of civil debts of interest due to the United Republic
of Tanzania or Local Authorities.


1. Subject matter for the suit whether movable or
Movable Property the suit most be field in the court
within which the subject matter is situated.
Immovable property where the property is suited.
Refer section 13 of the CPC
Pecuniary jurisdiction.
The place where the defendant resides or works for gain.
NB: Suit may either follow the defendant or the cause of
A company may be sued or sue where there is head office or
branch or sub-office of the company.

1. Francis Mwijage v Boniface Kabalemeza (1968) HCD n.
2. Sheikh Kassim Suleman v Ayubu Kamgila (1968) HCD n.
3. Walumu Jilala v John Mongo (1968) HCD n. 81
4. Edward Kalemela v Muyebe Rwenjege (1968) HCD n. 80
Is a Common Law doctrine included in the Civil Procedure
Code. It has two elements Res meaning matter and judicata
meaning already adjudicated.
Res judicata bars subsequent litigations involving matters
substantially and directly the same between the same
parties or parties claiming on the same thing.
-Res Judicata applies only to civil litigations.
The doctrine of Res judicata is based on two well known
maxims of Common law.
1. interest reipubicae est ut sit finis litium i.e. it is in the
public interest that there be an end to litigation.
2. nemo debet bis vexari pro aedem causa i.e. no one
should be in jeopardy twice on the same ground.
Elements of Res Judicata
Refer Section 9 of the CPC
1. There must exist two suits one finally and conclusively
determined and another pending.
2. These suits must be before courts of competent
3. These suits must have been between same parties or
parties claiming under the same title.

4. The matters that are directly and substantially in issue

between the parties in the pending suit must have also
been directly and substantially in issue in the previously
decided suit.
Effect of the doctrine
A person cannot raise an allegation which has previously
been decided against him by a court of competent
jurisdiction. A Judgement may be assailed by an appeal
where a right of appeal exists, or by applying to have the
judgment set aside where it was obtained fraudulently or
See: R.V. Hatchings (1881), 6 QB 300.
In every civil litigation there has to be a minimum of two
parties opposing each other in respect of a dispute. In other
words there has to be a lis inter parte with litis contestatio
The two parties to a suit are PLAINTIFF and DEFENDANT.
Plaintiff is the party who has a right to relief against the
other party (defendant). The right of relief should not be a
moral right but a legal right.
In simple civil suit there is a single plaintiff and a single
defendant while in a complex suit there are various parties.
Parties to a Civil Suit
1. Proper Party
Is that party without whom no effective decree can be
issued? His presence is necessary because the court must
either give a relief or a decree against him. Proper parties
are parties who must be before the court.
2. Necessary Party
Is the one whose presence in court is desirable but whose
absence does not render the decree ineffective Eg. In


nuisance suit over a flow of sewage a decree against the

tenant can be affected through the landlord. The tenant is
therefore a proper party because he will bring the landlord he is therefore not a necessary party but a proper party and
the landlord the necessary party.
The person who will be compelled to do what is sought is the
necessary party.
General Principle: The CPC does not compel a party to
combine the parties in pursuance of their rights nor does it
prohibit joinder of the parties.
Joinder of Plaintiffs
Order 1 rule 1 CPC provides More than one plaintiff can sue
against one or more defendants if the right to relief claimed
by them arises out of the same act or transaction or a series
of acts or transactions and if separate suits were brought,
common questions of law or fact may arise.
Refer: Yowana Kahere V. Lunjo Estates Ltd [1959] EA 319
Kanani V. Desai Uganda High Court Civil Case No.
Points to Consider In Joinder of Plaintiffs
These are just practical and not legal considerations
1. Parties (co-plaintiffs) must have common interests.
Where it is likely to differ in interests it is advisable that
each plaintiff should sue separately.
2. Co-plaintiffs should be represented by the same
advocate to avoid prejudice to parties.
3. Joinder of plaintiffs shortens the conclusion of the case.
4. It is less expensive to sue jointly than separately in
terms of mobilizing the parties and witnesses.
5. Suing jointly does not require presentation of third party
notice against some of the plaintiffs.


6. Where the defendant is successful against some of the

plaintiffs, there is a real likelihood that the successful
plaintiff will be found to be jointly liable to the
Cause of action
Means all the facts which have to be proved by plaintiff in
order to be entitled to a relief or the facts which are going to
be proved in the court in order to obtain relief.
Joinder of Plaintiffs
The test is whether the plaintiffs are jointly interested in the
same subject matter.
The Plaintiff sued under Cap. 360 for damages on his own
behalf as the dependant of his deceased son and at the
same time he sued as the administrator of the estate of his
deceased son. The issue was whether there was a proper
joinder of plaintiffs. It was held that there was nothing wrong
for a person to sue in a dual capacity.
Joinder of Defendants
Rule 3 of Order 1
It is not necessary that every defendant should be interested
as to all the reliefs claimed in any suit against him. The rule
does not require that all questions of law or fact must be
common to all the parties. It is sufficient that there is a
common question either of law or of fact.
1. A brought a suit against B, C, D and E for recovery of
certain documents of title and the goods in suit were his
property; that defendant B obtained from him the
documents of title relating thereto by fraud and made
them over to defendant C; that defendant C wrongfully
dealt with them and sold the goods to defendants D and


E; that D and E claimed to retain the goods and

documents of title.
Held: The right to relief against each of the defendants is
based upon the same act, namely, the alleged fraud of B,
and this is so notwithstanding the fact that there may
have been subsequent acts or transactions in which the
different defendants are individually concerned and which
may enable them to raise distinct defences. If different
suits were instituted, at least one common question of fact
would arise, namely the exact nature of the act imputed
to B, which would have to be investigated, presumably on
the same evidence separately adduced in several suits.
2.A holder of 100 shares in a company, brought an action
against the company, its several directors and promoters
and executors of a deceased director and promoter, as
against the companys cancellation of the allotment to
him of his shares and return of his money by paid him with
interest, damages as against the defendants other than
the company and rectification of the companys register of
members by the removal of his name therefrom. He
alleged that he had applied for the shares upon the faith
of, and induced by the misrepresentations contained in
the prospectus issued by and with the authority of the
defendants (other than the company and executors) and
of the deceased.

Held: In substance, the shareholder has one grievance, call it

a cause of action or what you like, and in substance he has
one complaint, and all the persons he sues, have according
to him, been guilty of conduct which gives him a right to
relief in respect of one thing which they have done, namely
issuing of the prospectus.
See also the case of Thomas V. Moore (1918) IKB 555 per
Lawrence, J.
that the court has discretion as to allowing the joinder of the
defendants and that as there was a common question of fact

to be tried.the court would in exercise of that

discretion allow the two defendants to be joined in one
action. As a General Rule: where claims by or against
different parties involve or may involve a common question
of fact being against different parties of sufficient
importance in proportion to the rest of action to render it
desirable that the whole of the matters should be disposed
of at the same time, then it will allow the joinder of plaintiffs
or defendants subject to its discretion as to how the action
should be brought.
It should be noted that joinder of the parties and causes of
action is discretionary in the sense that if they are joined
there is no absolute right to have them struck out but it is
discretionary in the court to do so.
The plaintiff can at his option join as parties all or any of the
persons jointly or severally liable on any contract including
parties to bills of exchange, hundies and promissory notes.
See: Order I Rule 6 CPC.
If the Plaintiff is in doubt as to the person from whom he is to
obtain redress, he may join two or more defendants in order
that the question as to which of the defendants is liable, and
to what extent may be determined as between all parties.
See: Order I Rule 7 CPC.

Under Which






1. In joining defendants one has to look at the connection

between the defendant and the cause of action. See:
Order I Rule 3 CPC
2. Rights to relief must arise out of the same act or
3. If separate suits are brought against the defendants
there would be common question(s) of law.




OTHERS [1964] EA80.81






[1965] EA 18

Although the word same must govern the words series of

acts or transactions it is not necessary that all defendants
should be interested in the relief claimed in the suit but it is
necessary that there must be a cause of action in which all
the defendants are more or less interested although the
relief asked against them may vary:
Reference should be made to Section 111 of the Evidence
Act, 1967. That, the plaintiff must prove the case against the
defendant or all the defendants on balance of probability.


Where several plaintiffs claim a right to relief against one
defendant or several defendants jointly and such persons
have the same interest in the subject matter of the suit then
a member of them may sue on behalf of all.
They are actions normally filed against a public or a
particular social group, trade union, local authority or in
declaratory actions against the Government.
The persons suing are known as Representatives. Before
they file the suit they must first obtain a representation
order by filing an Application (chamber summons) and
Notice must be given in Mass Newspaper to invite


If there is no objection the court will grant the

representative suit shall bind all the parties.


Addition of defendant necessitates amendment of the
pleadings in order to incorporate the new defendant into the
action and he must be served with a copy of the pleadings.
NB: Addition of defendant is subject to the Law of Limitation.
Order I Rule 12: Where there is a joinder of parties whether
plaintiffs or defendants, some of them will be allowed to
appear, plead and conduct the case on behalf of the others.
Where there is more than one plaintiff or defendant, the
parties may appoint one of them to proceed on behalf of the
others provided the authorization must be in writing and
signed by the parties. The parties not appearing in court will
be bound by the decision of the court.


A procedure under which a party who is not an original party
to the proceedings is brought to the suit and thereby made a
party to the suit. The third party is neither a plaintiff nor a
It is a procedure which enables the court to make orders in
favour of the defendant against the third party when the
defendant is found liable to the plaintiff.
In effect it is a procedure which enables the court to
entertain two suits simultaneously thereby saving time and
reduce costs of litigation.
This procedure is available to the defendant only./


The relevant provisions for Third party Procedure are Paras

(a), (b) and (c) of rule 15 of Order I of the CPC.
In the Case of Bhamji Laxman limited V. National Sisal
Authority & the NBC. High Court Civil Case No.60 of 1993
Mwaikasu J., stated in the said case that:
At this juncture let it be pointed out that a Third Party
Notice is for all
practical purposes, a form of a claim by
the defendant instituted against
the third party, for the
reliefs sought. As the defendants claim against
the third
party hinger on the nature of
the claim of the plaintiff against the
defendant, it is for a
fair and just a;djudication of the dispute imperative that
the third party should be supplied with sufficient facts
as to make him
know adequately the nature of the claim
as to be in a position to prepare a proper and adequate
defence. The need for such sufficient facts to enable
third party identify the nature of the claim comes to the fore
when one
reads Rule 17 of Order 1 of the CPC.

Conditions For Third Party Proceedings

The applicant must establish
contribution or indemnity.






Refer: Parry V. Carson In order to bring himself within the

ambit of Order 1 Rule 14 the applicant must show upon the
face of the pleadings and upon his supporting affidavit that
he would be entitled to indemnity from the third party in
respect of the amount which the plaintiff claims from him in
the event of that claim be successful.
Refer also:

WALUSIMBI V. A.G (U) [1959] EA 223


Ch. D.261


WYNE V. TEMPEST [1897] 1Ch.110 at 113 per

Chitty, J;
A right to indemnity may arise under express or implied
contract or by reason of an obligation from the relation of the
parties, such an obligation arises in equity from the relation
of the parties when two trustees are liable for a breach of
trust and one has applied the trust fund to his own use; in
that case the trustee who has so dis-applied the fund is
liable to indemnify his co-trustee; so where a man has
requested another to hold as a trustee for him shares upon
which there is liability for calls or the like the trustee is
entitled to an indemnity not merely out of the trust property
but by the cestui que trust i.e. the beneficiary.
Note: - The right to indemnity is a contractual right while the
right to contribution is an equitable right.
- Joint tortfeasor has a duty to contribution against his


Edward Kirondoke Kaggwa V. Castapereira [1963] EA 213
Third Party Procedure is limited to claims to contribution or
indemnity only and it cannot be extended to a right for

Refer Insurance Claims.

Overseas Touring Road Services V. Africa Produce
Agency [1962] EA
190, 191.



Order I Rule 14(2) CPC
The defendant desiring to issue a third party notice must file
an application to Court for leave to issue the third party
notice. The application has to be made ex parte supported
by an affidavit. The affidavit will disclose the grounds upon
which the application is made. It must disclose a cause of
- Once there has been service to the Third Party , he
becomes a party to the proceedings
- The Third Party is liable when the defendant is liable
when the defendant is liable to plaintiff.
- The Third Party can not challenge the plaintiffs case
but he may defend himself against the defendant. i.e.
pointing out that the defendant is not entitled to any
contribution or indemnity.

Three Modes of Appearance
1. Personal Appearance
A party in law is entitled to enter appearance personally
except where it is a corporation. Corporations can only
appear by an
Iboos Petrol Station V. Blackstone Utility 1955 KLR 20


A Corporation aggregate has got two types of agents.

Agent for ministerial/administrative purposes i.e. manager
to cleaner. Agent for Legal purposes who must be an
NB: A Companys Secretary though a lawyer is not an
Section 3 of the Advocates Ordinance Cap. 341 define an
advocate as a person whose name appears in the Roll of
TLCs Act, 1971 - TLC advocates cannot act where their
employers are not involved.
Zuberi Gigi V. The Returning Officer 1974 LRT n.52 A
State Attorney is an advocate only when he is acting on
behalf of the State.
2. By As Advocate Duly Instructed
W. V. Commissioner of Income Tax [1973] EA 187
defines who an advocate is. To be duly instructed an
advocate must be able to answer
all the material
questions relating to the suit.
Clients verify this by signing the pleadings.
EA 147
[1974] EA 91
3. By Recognized Agent
A recognized agent is a person who holds power of


A power of attorney is a document/instrument by which

a person
empowers another person to represent him
or act in his stead for certain
The person so appointed becomes an Agent of the
Order III rule I CPC provides:
Any appearance, application or act in or to any court,
required or authorized by law to be made or done by a
party in such court, may, except where otherwise
expressly provided by any law for the time being in force,
be made or done by the party in person or by his
recognized agent or by an advocate duly appointed to act
on behalf or, where the Attorney-General is a party, by a
public officer duly authorized by him in that behalf.
Provided that any such appearance shall, if the court so
directs, be made by the party in person.
In the case of Hans Nagorsen V.BP Tanzania Ltd.
Court Civil Case No. 239 of 1987 (DSM Registry)


Hans was authorized only to settle the claim against the

Defendant and not to act as authorized agent in terms of
the provisions of Order III rule I of the CPC. Instead Hans
Nagorsen filed a suit as the Attorney of the Plaintiff.
Kyando J, held:
I would readily agree that authorization to settle a
claim is not the same thing as authorization to appear,
apply or do any act in or to any court within the
meaning of those words as used in Order III rule l of
CPC. As I see it, Mr. Nargosen was authorized to
negotiate settlements out of court, of the claim. He
certainly was not, by the above letter, authorized to
institute a suit or suits. The institution of the present
suit by him was done without authority or power


It was also stated in the above case that. Where a party

is unable to sign the pleading it may be signed by any
person duly authorized by him to sign or to sue or defend
on his behalf.

In another case, Amirah Ahmed Jaffer V. Abdulrasul Ahmed

JAFFER & 2 Others. High Court Misc. Civil Case No.48 of
1992 (DSM).
Mapigano J, stated as follows:
As every lawyer perfectly understands, a power of
attorney is a formal instrument by which one person
empowers another to represent him or act in his stead for
certain purposes. Under Order III rule 2 (a) of CPC a
grantee of such powers is competent to go to law and
make application on behalf of the grantor, providing that
the instrument gives him such authority, and I am acutely
aware that the terms of such instrument should receive a
strict construction as giving only such authority as it
confers expressly or by necessary implication.
The trial Judge went on to say:
By the same token where the principal himself makes
or does an application, appearance or act, his attorney
has no locus.

Section 22 and Order IV of CPC
SUIT Is a proceeding of a civil nature which has been
commenced by the presentation of a plaint or in any other


manner which has been prescribed by the rules made

under the Civil Procedure Code. Refer Mansion House Ltd
V. Wilkinson (1945) EACA 98.
The word plaint has no statutory interpretation.
It can however be defined to be a memorandum
presented to court by a claimant setting forth his reasons
of complaint and the relief he is seeking from the court. So
as to be a plaint it has to comply with the rules of
pleadings as provided under Orders VI and VIII of the


Any person whose legal right has been infringed upon has
a right to bring a suit against the infringer/intruder.
Order III Rule 1
Any act which may be done by a party to the proceedings
may be done by his agent or advocate duly instructed.
As a general rule a plaint must be presented by the
plaintiff himself or by the person duly authorized.
Presentation of the plaint must be physical. The same
must be physically presented to the Officer of the court
authorized, a plaint cannot be presented by post,
telegram etc. See Order IV Rule 1 CPC.


There is no specific provision for time and place of
presentation of the plaint. Presentation can be made at
any time and place provided it has been presented to the
authorized person.


This saves time as once the party delays to file his plaint
he has got to apply to the Minister for Justice for
extension of time.


A suit is taken to have been filed when the necessary
court fees have been paid. Presentation of the plaint has
to be coupled with the payment of fees i.e. the plaint must
be accompanied by an official receipt evidencing payment
of the necessary fees. As for payment of the fees by
cheque, date of filing is not the date when the cheque is
signed but when it has been honoured by the bank and
therefore although it is presented any time and place the
plaintiff must pay and get the receipt.
(V.24) Bomb.25
The judge stated:
The Judge can accept a plaint at any hour he chooses
though outside office hours and at any place he chooses
and I see no reason to doubt that the Clerk of the court
who is a duly constituted officer of the court with power to
accept a plaint can accept that plaint outside office hours
and outside the court building although I dont, for a
moment, the clerk is bound to accept out of the court
See also PILLAI V. AMIR SALUB & ORS AIR Vol.1 [1914Mad.488]
Note: under the Court Fees Rules, Rule 8 allows the court
to grant leave to sue in forma pauperis. In SINGH V.
SINGH AIR 1937 Oush.452 it was stated that .merely
filing an application for leave to sue in forma pauperis,
though it is accompanied by the plaint, does not amount

to the institution of the suit there cannot be any suit or

plaint before the court until the application to sue in forma
pauperis is granted.
A PLAINT must contain precise and concise statement of
the claim against the defendant, it has to disclose a cause
of action against the defendant, and it has also to be
verified by the plaintiff.
The same applies to all other pleadings.
Order V Rule 1 Once a suit has been filed it is the duty of
the court to summon the defendant.
What is a Summons? It is a process (document) of the
court addressed to the defendant informing him that a suit
has been instituted against him and requiring him to
submit to the jurisdiction of the court either by filing a
written statement of defence (WSD) within the specified
period in the summons or to enter appearance before the
court for the purposes of receiving the directions of the
court on a date specified in the summons.
The procedure conforms with the rules of natural justice
that no party should be condemned unheard. It gives the
defendant an opportunity to be heard.

There are two types of summons.
1. Summons to appear
2. Summons to file a Written Statement of Defence


NB: Summons to appear are normally issued by the High

Court. Summons to file WSD is invariably issued by
Subordinate Courts.
Mandatory (Basic) Requirements of a Summons
1. Under Order V Rule 2 a summons must be signed by a
Judge or a Magistrate or any other Officer appointed by
the Chief Justice for such purposes.
2. It must bear the seal of the court.
What is a seal? It is a metal endorsement on a
document. The High Court
is the only court in
Tanzania with such a seal. However, rubber stamp may
be a valid seal as the endorsement seal.
See: SATCHU V. A.G [1960] EA 508 and BAWMAN V
NADIOPE [1968] EA 306. There is a rebuttable presumption
that the person signing the
summons has the authority to
do so. One cannot inquire as to the authenticity
signature at the time of service.
3. A

summons must be accompanied by another

document. Order V Rule 3 of CPC - to enable the
defendant know the nature of the suit relating to the
summons. The Plaintiff must produce enough copies for
all the defendants.

Appearance by the defendant means the defendants
submission to the court and his intention to defend his case.
Appearance under the Code means attendance in person
or by an advocate in court on the date stated in the
summons which is also the date of hearing. Once the


defendant is present, either in person or by an advocate

when the case is called up that is sufficient appearance.
Methods of Serving Summons
The general principle is that service of summons should be
made upon the defendant himself personally.
The person who does the delivery of the summons is the
Court Process Server or the Court Bailiff (Officer of the
court specifically appointed for purposes of serving
processes of the court). Refer: Order V Rules 9 to 15 CPC.

Exceptions to the general principle:

1. Where the defendant has an agent authorized to
receive summons the summons will be served on the
2. Where the suit relates to any business or work and the
defendant does not reside within the jurisdiction of the
court then service may be made on the Manager of the
3. Where the suit relates to immovable property service of
the summons must be made to the agent with
authority to deal with that property.
4. Where the defendant cannot be found, nor has an
agent or authority to receive summons then the
summons may be served on any adult member of the
household except the servant.

Proof of Service of Summons

Order V Rule 16 CPC


The person who receives the summons must acknowledge

receipt by signing on the original summons which is then
returned to the court and he retains the copy. Where the
party refuses to receive the summons the Process - Server
leaves the copy aside and swears on the affidavit that the
bearer has refused to receive the summons and that a copy
thereof has been left on him. Witnesses addresses may also
be mentioned.
Where the defendant or his agent cannot be found and no
adult member of the family leave of the court is sought to
have a copy of the summons affixed at the place which is
known to be the defendants last place of aboard.
Substituted Service (in substitution of personal service)
Order V Rule 20 CPC
The rules relating the substituted
service are exception to Rule 12 of Order V in that they allow
service of the summons by a method which directly does not
involve the defendant. A plaintiff desiring to serve the
defendant with substituted service must get leave of the
court. He must apply by showing grounds and reasons for
this. Substituted service is done by publication in the
newspapers or by affixing the copy of the summons at the
court - house or at a public place where pubic notices are
Note: Substitution of summons does not include copy of the
plaint. The copy of the plaint will remain in the registry and
the defendant will be free to go
there to collect it.
Other Forms of Service of Summons
Service by Post
Order V Rule 21 CPC
It is secured on application by the plaintiff. The application is
made orally on the mention date. Such order is granted only
upon the court being satisfied that personal service will
entail unreasonable delay. Such a summons must be by
registered mail. See Order V Rule 30. The defendant will be

acknowledgement and return the same to the court.
defendant may write a letter to the court to acknowledge
receipt of the summons.
Service outside the jurisdiction of the Court but
within Tanzania
Order V Rule 22 CPC
The court which issues a summons to the defendant who
resides outside its jurisdiction sends the original summons
and a copy to the court having jurisdiction in the area the
defendant is known to reside. e.g. The RM in DSM sends
summons and a copy to the RM in Mbeya.
Note: This applies only to subordinate courts. A subordinate
court cannot send a
summons to the High Court.
When a summons is received by that court it is served in the
normal way. This court then returns to the court which issued
the summons the original summons signed by the defendant
with a covering letter stating how the same was served.
Where the defendant resides within the jurisdiction of
Zanzibar the court may either send it by post or physically
by Officer of the court. Alternatively the court may send it
directly to the subordinate court in Zanzibar.
If the defendant is in Prison the summons will be sent
through the Officer In -Charge of the Prison together with
the copy of the plaint.
If the defendant is a member of the Armed Forces then the
summons is sent to his Commanding Officer who has the
duty to send the copy to the defendant and return the
original signed by the defendant.
Where the defendant is an employee in the Civil Service then
he may be served through his superior.
Service of Summons to Defendant outside Tanzania

There are two categories of countries.

1. Kenya, Uganda, Malawi and Zambia. These have
specific agreement with Tanzania as to service of civil
processes. Summons to these countries is served by:

Post registered mail where the address of the

defendant is known.


Directly to the court of that country with

jurisdiction over the place where the defendant
resides. On receipt the court will receive it as if
it was its own summons.


By the plaintiff or his agent sending the

summons personally with permission of the

2. Other Countries than those mentioned above.

These falls into two categories:
(conventions) as to service of civil processes.
2. Those countries which Tanzania has no agreement.

Where we have conventions the service is in accordance

with the agreement. Regardless of this summons may be
served by post or through the court of that country. In
Tanzania the Magistrate prepares the summons, sends it
with the plaint to the High Court, for translation where the
country is not an English speaking country. The Registrar
of the High Court then sends it to the Principal Secretary
of the Ministry of Foreign Affairs which will prepare a
document to be sent to that foreign country.


Service through the foreign court will be as effectual as

our own Local Courts.

What is Pleading?
It is a legal term which connotes the presentation of ones
claim (case) before the court.
Generally, pleadings comprise of two things;
1. The documents which are presented before the court
in preparation of the suit. These documents lay bare
the material facts of the case.
2. The process of preparing the documents.

Order VI Rule 1 defines pleadings as the plaint, the written

statement of defence and the reply to the written statement
of defence and any other document produced to court for
the purpose of preparing the suit.
The definition is not exhaustive. Pleadings also include the
process of preparing the documents which lays bare the
facts of the case and it includes the documents themselves.
In other words pleading is an art of preparing the documents
and on the other hand it is the product of this art.

Functions of Pleadings
Pleadings serve three purposes:

Pleadings inform the court about the nature

of the parties case by identifying the area
of controversy between the parties.



Pleadings serve the purposes of bringing the

parties to the issue. i.e. they establish litis


Pleadings put the dispute on record. They

define the area upon which the decision of
the court is sought and they put those areas
in court. Once there is decision the matter
becomes res judicata.

NB: Every party in civil litigation is entitled to know the

Thorp V. Holdworth (1876) 3 Ch. D. 637,639 (Leading Case)
The whole object of pleading is to bring the parties to an
issue and the whole meaning of the rules was to prevent the
issue being enlarged which would prevent either party from
knowing when the cause came on for trial, what the real
point to be discussed and decided was. In fact, the whole
meaning of the system is to narrow the parties to definite
issues and thereby to diminish expense as delayed
especially as regards the amount of testimony required at
the hearing.
See also Palmer V. Gudagni [1906] 2Ch. 494,497
Esso Petroleum Co. Ltd V. Southport Corpn. [1939/59] AC
The function of pleading is to give fair notice of the case
which has to be met so that the opposing party may direct
evidence to the issues disclosed by them.
Joseph Marco V. Pascal Rweyemamu (1977) LRT 59
Zalkha Binti Mohd Juma Mazige [1970] HCD 132
N.J. Amin Ltd. V.B. Patel Co. Ltd. [1969] HCD 17

1. Only matters which are in dispute between the
parties should be the subject of decision by the court.
2. The purpose of pleadings is not to set out the whole
case. Pleadings are not evidence. They comprise only of
the allegations to be supported by evidence.
3. Pleadings relate to material facts only and not the
law. Material facts are those which constitute the cause
of action. They constitute a right and the infringement
of that right and the consequence of the infringement
of that right.
4. As a general rule you do not plead particulars. There
are certain exceptions to this rule e.g. in Negligence
[which is a very wide tort], in fraudulent cases you
must specify the nature of the fraudulent behaviour,
Misrepresentation, Undue influence, Breach of Trust,
Willful default. In all these actions the party pleading
them must give the particulars.
Refer Order VI CPC and the case of Northwestern Salt
Co. Ltd.

Certainty & Particularity in Pleading

The question of certainty was brought up in the case of
William V. Wilcox 112 ER 857,863. The case gives tactics to
be used in pleading.
The CJ said:
The certainty or particularity of pleading is directed
not to the disclosure of the case of a party but to informing
the court, the jury and the opponent of the specific
proposition for which it contains and a scarcely important
objects that bringing the parties to issue on a single and
certain point avoiding prolixity and uncertainty which would
very probably arise from stating all the steps which lead up
to that point.

According to the case there are two categories of facts

1. The material facts

2. The subordinate facts

Material facts:
They are those facts which lay out the cause of action.
Subordinate facts:
They are those facts which may properly be called evidence.
In the process of pleading you are required to plead the
material facts and not the subordinate facts.
See: Gautret V. Egerton 1867 LR 2CP 371, 374
Lumb V. Bealimont 49 LR 772
Millington V. Lorring 43 LT 657
The Nature of Pleading Certain Facts
Under Rule 6 - where a condition precedent is alleged, the
facts disclosing such condition have got to be specifically
Under Rule 8 - where a contract is illegal, a bare denial will
relate to existence of the illegality.
Under Rule 10 - where a state of mind is pleaded it is enough
to allege that state of mind, e.g. malice or knowledge.
Rule 13 - you do not plead law because law is a matter of
judicial notice.
Subsequent pleading cannot raise new grounds.
A pleading which is not signed is a defective pleading as it is
required by the Rule 14 to be signed by the party himself or
his advocate or where the party is absent from the
jurisdiction of the court or where he is unable to sign, by a
duly authorized person.


The requirement of signatures is a requirement of law;

however the absence of signature is not fatal to the
proceedings. Therefore, where a pleading is not signed, the
defect may be curable by allowing the party to sign.
Where a party applies to have a signature on his pleading,
the court will freely grant that application.
Rule 15 - demands that all pleadings have to be verified.
What is verification?
It is a statement by a pleader showing that he has full
knowledge of what is pleaded and indicates his bona fide of
what he has pleaded.
Verification is a mandatory requirement.
Under Rule 15(2) - the party verifying must verify to the
different paragraphs separately and show which are verified
according to his knowledge, belief and information.

I. XY, being the plaintiff in the above named suit do hereby
state that all that is stated in paras 1 to 5 above is there to
in the best of my own knowledge, what is stated in paras 6
and 7 is there to the best of my belief and what is stated in
para 8 is there to the information supplied to me by the
Dean of Students.
DATED at Dar es Salaam of November, 1988.


A plaint which is not signed/ verified is ineffective and

therefore the Officer of the court may reject it.
The object of verification is to fix responsibility on the party
pleading and to prevent false pleadings being recklessly filed
or false allegations recklessly made.
Order VI Rule 16 empowers a court at any of the proceeding
to strike out or amend any matter in the pleadings which
according to it are offensive.
Situations in which striking out of pleadings may be
ordered:I. Where the pleadings or certain parts of the pleadings are
unnecessary i.e. for being prolix.
II. When the court is of the opinion that such pleadings do
embarrass the opponent eg. where the pleadings are so



opponent will

be unable


understand them.
III. Where the court is of the impression that the pleadings
tend to prejudice that opposite party.
IV. Where the court is of the opinion that the pleadings will
tend to delay a fair trial.


NB. The provision of Order VI Rule 3 must be read together

with the provisions of Order VI Rule 16 and the case of N.J.
Amin V. B. Patel & Co. Ltd

[1969] HCD 17.

In the case of Knowles V. Roberts 1883 38 Ch. D 263 it was

observed that courts should not dictate to the parties how
they should frame their case. However, this is subject to the
limitation that the parties must not offend against the rules
which have been laid down by the law.
Where a party to civil proceedings alleges a scandalous
matter it will be struck out only when it is irrelevant,
however , not every indecent or offensive is not material is
to be considered as scandalous.
If the scandalous matter is relevant it will not be struck out.
As a general principle courts have discretion to order
amendment of the pleadings at any stage. Order VI Rule 17
can be employed at any stage before judgment but it is









detrimental to parties.
See the case of Motohov V. Auto Garage Ltd [1971] HCD 81
per Biron J,
The making of amendments is not merely a matter of the
power of court but it is a duty so that substantive justice will
be made.


Although Order VI Rule 17 is a permissive provision the High

Court has interpreted the conditions as mandatory.
In Tanzania amendments are the duty of the court.
The party seeking amendment is the one to pay the costs of
Endevain V. Cohen (1889)43 Ch. D. 187
Clarapede V. Commercial Union Association (1883) 32
WR 262.
When an inconvenience is suffered by a party can be
assessed in monetary terms and therefore attorned by the
court for the interest of determining it the court will allow
Although amendment will freely be granted an advocate will
suffer the costs.

A professional lawyer should not make

an application to amend pleadings.

Principle: The court will allow amendment when the
inconvenience caused can be assessed in monetary terms to
compensate the opposite party.
Shivji V. Pallegrino
The amendments are ordered only for the purposes of
making the existing pleadings clear. They are made to


elaborate the cause of action pleaded. Amendment will not

be awarded where the effect of granting it will be to
introduce a new course of action. Also an effect of
amendment is not to substitute the cause of action for a new
cause of action
Therefore, Order VI rule 16 cannot be used where through
negligence a party has failed to join causes of action where
he could have done so in the beginning.
When an order for amendment is granted the party who has
been allowed to amend must do so within 14 days. If he
cannot do so he cannot amend his pleadings unless he is
allowed an extension of time by the court.
Order VII CPC.
A plaint is a court document, it should contain a title. What
comprises of the title of a plaint? Refer: Rule 1 (a) (b) &
(c).The name of the court, the number of the case and the
names of the parties.
In the body of the plaint the first paragraph should contain
the description of the plaintiff. Where there is more than one
















description of the defendant. Where there is more than one

defendant, each will be described in separate paragraph.


The main body of the plaint will constitute the facts which
show the cause of action.
Towards the end of the plaint there should be a statement
to the effect that a claim has been made and the defendant
has refused to accede to it.
There has to be a paragraph towards the end to show that
the court has jurisdiction. This is followed by prayer for
reliefs. See: Rule 2.
Note: that a relief not prayed cannot be granted.
At the end of the prayer of relief there must be a signature
of the plaintiff or any person entitled by the law. Then
comes verification which should be signed at the left hand
corner by an Advocate or Magistrate.
Normally there is no specific type of paper to use but the
practice is pleadings are written in light green paper which
is less than 800 grams.
In England, there is a rule it must be an A4 paper. In
Tanzania it must be in a foolscap.
General notes on Plaint.


The names together with the description and the place

of residence or place of business must be set out in the
title part of the plaint.

If the plaintiff is unable to give the full name of the

defendant it is better to state in the body of plaint that,
in spite of his best endeavor,

the plaintiff could not

ascertain the full name of the defendant.


A corporation must sue or be sued in its full corporate


Partners may be sued in the firms name.

The capacity

in which the plaintiff sues or the

defendant is being sued ordinarily be set out in the

body of the plaint.

Dual capacity, as where the plaintiff sues in

representative capacity as also in his own right should

be clearly stated.

Rule 1 (b) and (c) of Order VII requires that the place of
the plaintiff or the defendant is to be stated in the
plaint. It does not say anything about the place where


the plaintiff or the defendant carries on business or

personally works for gain.

Place of residence however, can only apply to person

actions. It cannot apply to a firm, corporation or

Even in personal actions the place where a party carries on a

business or personally works for gain may be, and often is
stated instead of his place of residence.
In case of registered company, the place where the
registered office of the company is situated or where any of
the branch offices of the company is situated.
The body of the plaint should be divided into paragraphs and
consecutively numbered.
Dates, sums and numbers should be expressed in figure.
See: Order VI Rule 2.




A plaint is return to the person who filed it in a wrong court

i.e court with no jurisdiction.
The return is made, either at the presentation of the plaint or
at the time of hearing. Only a judge or magistrate has power
to return a plaint.
It is a judicial act in the sense that the judge or the
magistrate must give reasons for the return and these must
be recorded.
Order VII Rule 10(2) the wrong court has no power to dismiss
the suit. You do not have jurisdiction to entertain the suit
therefore you do not have power to dismiss the suit.
The proper approach is not to dismiss it but to return it to the
proper court.
This exercise may be at any stage of the suit. It depends
upon the time the court discovers.
Order VII Rule 11
There are three circumstances under which a court may
reject a plaint:
I. Where the plaint does not disclose a cause of action.


II. Where it appears to the court that the claim is undervalued. After the court has given power to the plaintiff to
value it properly and the plaintiff has declined to do so.
III. Where on the face of the plaint the suit appears to be
barred under any law. Eg. The Law of Limitation Act,
Security of Employment, res judicata, res sub judice, etc.
The flexible approach of courts of Tanzania has resulted into
the amendment of rule 11 by GN 228/1971. Under the
amendments the Chief Justice used his power of making
rules under section 81CPC to add a proviso to rule 11 which
states: Provided that where the court is of the opinion that,
by allowing an amendment the plaint will disclose a cause of
action, the court may order an amendment instead of
rejecting the plaint. The implication is that
When the court rejects the plaint it must state that the
reasons for so doing as this order are appellable.
Rejection of a plaint is not a decision of the case on merits
and therefore the doctrine of res judicata will not apply Rule
13 Order VIII.
A rejection of the plaint under this rule does not operate by
itself as a bar to the plaintiff against filing a fresh suit on the
same subject matter and of the same parties.



There are two documents:
1. Those which form the basis of the claim.
2. Those which form the evidence to support the plaintiffs
Those documents which form the basis of the claim will be
annexed to the plaint but those which form the evidence
need not be annexed to the plaint.
Those in category 1 must be in the parties power of
A list of those documents which are not in the power of
possession of the party and which will be used in evidence
may be annexed to the plaint or listed at the foot of the
Consequences of not disclosing the documents
The party proposing to rely on the documents cannot
produce them in court unless granted leave of the court.
Although those documents will be inadmissible they may
assist in cross-examination. Order Vii Rule 18(2).
The principle of contingent cumulation requires a party to
plead every remedy/cause of action which is available
however contradictory.


Eg. I never ran him over.

Even if I ran him over, which is denied, I was not negligent.
Even if the court finds me liable for running him over I was
not negligent.
Even if I ran him over, and even if I was negligent, which is
denied, the defendant was contributory negligent.
NB. The contradictions are allowed because they help frame
the issue.
The Principle of Preclusion says that the party cannot lead
evidence on anything which was not pleaded. If one does not
plead it he is precluded from leading evidence on it.
Written Statement of Defence is a pleading presented by the
defendant intended to traverse the allegations written on the
Two occasions under which the defendant may present the
Once the defendant has been given a summons to appear
he does not have the need to do anything and he
cannot be penalized for not filing WSD.
Under order VIII rule 1 a defendant summoned to
appear may file a WSD








When a summons to file WSD has been issued the

defendant is required to file the WSD on or before the
date indicated.
The day of filing WSD is the day of hearing and not the
day of mention.

However the court has power to extend

the period of filing WSD.

Contents of WSD
Order VIII rule 2. WSD should contain all facts which will
show that the plaintiffs suit is not maintainable. These
may be questions of fact eg failure of consideration or
questions of law. Eg res judicata, limitation, illegality etc.
General rule
Each and every allegation in the plaint has got to be
Allegations denied or admitted must be specifically stated
in the WSD.
Each paragraph of the plaint should be denied separately.
Several words are used in traversing e.g. para (i) and (ii)
are admitted. They are normally the addresses. You
cannot deny the defendants address but yours. Eg
incases where you are not using the address of the


Para (iii) is denied. Even if there was a contract, which is

denied, there was a failure of consideration.
Para (iv) is denied. Even if there was a contract and
consideration, which is denied, the defendant asserts that
the contractual amounts were paid.
NB The technique of confession and avoidance is used in
writing the WSD in which the defendant
Admits the existence of some facts but at the same
time avoids the legal

consequences of the existence of

those facts.
Eg X admits the existence of a contract but there were no
vegetables, which is denied, the defendant asserts that
the vegetables were rotten and therefore unfit for human
consumption. Under Order VII rule 3 general denials are
bad in law.
(x) Save as hereunder expressly admitted the defendant
denies each and every facts contained in the plaint as if
the same were set fort seriatim and specifically traversed
D paragraph help against the presumption that whatever
is not specifically and denied is admitted.
Note: Although as a general rule a general denial is not
admissible, it is acceptable where there has been already
specific denial. Where there is not specific denial, a
general denial is inadmissible, and the defendant will be
taken to have admitted the rest.


Refer Warner V. Sampson [1959] All ER 120 at 123 per

Denning; LJ
It is used [general denial] in nearly every defence that
goes out from the temple [inns of court where barristers
operate from, in England] it comes at the end the pleader
has early gone throughin the statement of claim and
dealt with them. Some he has admitted, others he has
denied. Whenever knows there is a serious contest he
takes no instructions on a particular allegation he covers it
by a general denial of this kind so that he can, if need be,
put the plaintiff
In this cross-suit the defendant will be required to present
a WSD into sections:
The Defence.

2. A statement of claim against the

Although the plaintiff may not exercise his right to reply he is
duty bound to present a WSD to the counter-claim.
Rule 12 provides where a defendant has set up a counterclaim the court may order separate trials when it is in the
opinion of the court that the plaintiffs claim and the
defendants counter-claim cannot be heard simultaneously.
Note: In counter-claim it is mandatory that the plaintiff
should file his reply.
In Set-Off the plaintiff has an option of replying or not.


When is a Suit Ready for Hearing?

This will depend on the case.
When there is no counter-claim or set-off the pleadings are
closed and the suit is deemed ready for hearing once the
plaintiff files a reply to the WSD.
When there is a set-off or counter-claim and the plaintiff has
in his reply raised a defence to such a set-off or counterclaim pleadings will be deemed to be closed and the suit
ready for hearing after the defendant has filed his reply to
the reply.
Where he has already replied, rule 13 provides that, no
further pleading can be presented to the court subsequent to
the reply of the WSD other than a defence to set-off or
counter-claim without the leave of the court.
Consequences of Failure to present a WSD or a Defence to
There are different consequences depending on different
The court

may pronounce judgment against the person

who was supposed to present the defence. In a case

where the Summons was for appearing and he has
been given an order for appearing.
Where the summons was to file a WSD there are 2


Where the claim is for a liquidated amount of money

which does not exceed T.Sh.1,000/= the plaintiff
may make an application to the court in writing for
leave to prove his case ex-parte by affidavit or by
oral evidence.
Where the amount exceeds 1,000/= and in any other
case the court may pronounce judgment after exparte proof.
General Defences available in drafting a WSD
1. Accord & Satisfaction in law of contract.
2. Acquiescence.
3. Conditions Precedent.
4. Custom and Usage.
5. Capacity.
6. Estoppel
7. Fraud
8. Illegality
9. Jurisdiction



Laches [lashes] i.e. equitable limitation.


Misjoinder of parties & of causes of action.


Non-joinder of parties & causes of action




Notice insuffiency of Notice





Penalty as opposed to damages

Defence under protest






Remoteness of Damages


Res Judicata


Res Sub judice






Undue Influence




Lack of Special Damages




Want of Cause of Action.

Read the provisions of Order IX, the case of EAP &BTV.
Terrazo, and Orders III and V.
The consequences of non-appearance of a party differ
depending on who does not appear.
Non-Appearance of the Defendant
When summons was not served and failure to serve the
summons was due to mistake of the plaintiff either as a


result of failing to pay court fees or his failure to pay postal

charges the suit is to be dismissed. This is because there
cannot be a suit without parties.
Order IX Rule 2 The court has power to dismiss the suit on
the first day of hearing. If by coincidence the defendant is in
court the court will not dismiss the suit.
Where neither the plaintiff nor the defendant is in court the
court will dismiss the case. Order IX Rule 3.
The summons is returned unserved and the defendant does
not appear, it is the duty of the plaintiff to apply for reservice. This application has to be made within 3 months. If
not within this period, the court will dismiss the suit per
Order IX Rule 5.
A suit may not be dismissed under rule 5 where the plaintiff
shows the court that the defendant in proof of it at the trial,
sometimes the pleader denies, sometimes he does not admit
each and every allegation but whatever phrase is used it all
comes back to the same thing. The allegation has to be
regarded as if were specifically set out and traversed
seriatim. In other words it is traversed no more no less. The
effect of the traverse has been known to generations of


pleaders. It casts upon the plaintiff the burden of proving the

allegations denied. So this general denial does no more than
put the plaintiff into proof.
In law of banking one account can be used to set off a debt
in another account.
Generally: Is a mutual extinction of mutual debts in which
two people (defendant & plaintiff) stand reciprocally as
creditors and debtors.
Under the doctrine of Set Off: A defendant who stands in a
position of creditor to the plaintiff, has a right to raise a
defence of set off against the plaintiff.
In case he is found liable to the plaintiff then the sums that
will be found owing to him from the plaintiff should be set off
against his liability to the plaintiff.
What is owed by the plaintiff is cancelled by what the
plaintiff owes him. In the final analysis he will be required to
pay the balance.


2 Types of Set Off

Legal Set Off & Equitable Set Off
A Legal Set Off exists when there is a liquidated sum of
money and the plaintiff must owe the defendant the
liquidated sum of money.
An Equitable Set Off The amount owing is not liquidated. It
will be settled by adjudication.
The Whole Doctrine In Essence
It is found under Order VIII rule 6. It is a doctrine under which
here is an extinction of debts of which 2 persons are
reciprocally debtors to one another.
The two debts are extinguished by creditor of which these
two people are creditors reciprocally to one another.
Under the doctrine a defendant in a suit for recovery of
money, who holds a position of creditor against a plaintiff,
may claim a set off against the plaintiff.
5 Conditions to be met before Order VIII rule 6 comes into
The suit must be for recovery of money.


The defendant has to have the monetary claim against

the plaintiff






claim. It it is a debt it must be due.

The defendants claim must be for a liquidated sum of
Both parties must be in the same capacity i.e. Where
the plaintiff is suing in a representative capacity and
owes the defendant a certain amount of money in his
personal capacity, that money cannot be set off
because the liability of the plaintiff to the defendant is
not in a representative capacity. The defendant did not
lend the money to the plaintiffs child.
The sums sought to be set off should not exceed the
pecuniary limit of the courts jurisdiction.

Note the following:

1. A set off in its nature is an independent action. But for
avoidance of multiplicity of suits there should not be
two suits.
2. Order VIII rule 6 is a legal set off. CPC does not have
provisions for equitable se off. However, Order VIII does
not take away the right to an equitable set off. Where it
can be shown that a defendant will have a right to set
off independently of the Code the Order VIII will not be


used to prevent him from exercising that equitable

Difference between Legal and Equitable Set Off:
1. A court is bound to entertain and adjudicate upon a
legal set off once it is pleaded. However, where an
equitable set off is pleaded the court has a discretion to
entertain it and adjudicate on it or order that it be
brought in separate suit.

Whereas a legal set off is a matter of right an

equitable set off is not a right but discretional.

2. The amount recoverable. In a legal set off the amount
must be liquidated. One the other hand in an equitable
set off the amount is not ascertained.
3. In a legal set off it is important that the crossed
demand should have arisen in the same transaction
while in the equitable set off the cross-demand need
not have arisen in the same transaction.
Note: 1. Section 2(2) of the Judicature and Application of
Laws Ordinance

(JALO) provides for the application

of Equity in TZ.

Section 95 of the CPC provides for the inherent

powers of the Court.

What Happens When There is a Set-Off?


According to Rule 6 of order VIII a decree may be passed

against the plaintiff in respect of a set-off. Where there is a
set-off the WSD is deemed to be a plaint to the extent of setff. In the reply to the WSD the defendant will be required to
raise defences against the set-off.
It is in its nature different from set-off.
Whereas rule 6 relates to a claim for a liquidated amount of
money, a Counter-Claim is general. It relates to any suit.
Under rule 9(1) A defendant may raise a counter-claim
against the plaintiff when any cause of action vests in the
defendant at the time of presentation of the WSD.
What should be established is: the fact that one of the
parties is the defendant and the other is the plaintiff. Also
one has got to establish that they occupy the same position
personal or representative capacity.
Distinction Between a Set-Off and a Counter-Claim
Set-off in its nature is a statutory defence. The statute allows
raising a defence by set-off.
A counter-claim in its nature a cross-suit because it
embraces any cause of action which can be legally
sustained. In that cross-suit the defendant becomes the
plaintiff and the original plaintiff becomes the defendant.


Is actively avoiding service of the summons or he has failed

after exercising all efforts to discover the residence of the
defendant or for any other sufficient cause.
The sufficient cause should be ejusdem generis to other
things under rule 5.
Dismissal in all instances i.e. rules
1, 2, 3, & 5 cannot be res judicata because no evidence &
no hearing.
Where the defendant has been served and he is not in
If the suit is in the High Court and summons is proved to
have been properly served the plaintiff will be allowed to
prove his case ex parte.
Ex parte hearing does not mean that the plaintiff must win.
He must give sufficient evidence to convince the court.
Where the defendant is in court and the plaintiff has been
allowed to proceed ex parte, the defendant will not be
allowed to produce any evidence or cross-examine.
Ex-parte proof may be made in two ways:1. By way of affidavit by the plaintiff.
2. By way of oral evidence by the plaintiff.


You cannot proceed ex parte unless granted leave by the

court. On the day of hearing the plaintiff prays the matter to
be heard in chamber by the judge so that he can get leave of
the court.








(Subordinate Courts)
- Where summons issued was for producing WSD the court
may proceed ex parte.
- Where summons issued was summons to appear the court
may enter judgment.
Ex parte procedure is penal; it should be exercised where the
defendant refuses intentionally to appear or to submit to the
jurisdiction of the court.
It must be proved that the summons was duly served.
Summons to appear is a summons for direction both in the
High Court and in the Subordinate Courts.
Summons for disposal of the suit constitute the first day of
hearing and it requires no proof like in the High Court where
there should be ex parte proof.
Where the court is not sure whether the summons was duly
served it will issue a fresh summons.


Since rule 6 to Order IX is intended to punish a disobedient

defendant, it can be shown although the summons was duly
served the defendant has not failed to appear because of his
abstinence the court will not proceed further. Order IX rule
6(1) O where it is proved that the summons was not served
to give defendant sufficient time to appear the court will fix
another time and adjourn the hearing. If it was the plaintiffs
fault he will be ordered to pay the costs of adjournment.
Where the Defendant appears after the order for
Order IX rule 7 where the court has ordered ex parte proof
under rule 6 but proof is not taken on that day then the
defendant may, on the day to which the hearing has been
ordered adjourned, make application under rule 7 to make
an order to set aside the ex parte orders. The application
must be by way of a chamber summons supported by an
In the application the defendant must show his sufficient
causes for his non-appearance. The court has discretion to
set a side the ex-parte judgment. The court must be satisfied
that the non-appearance was due to sufficient reasons.
Where the Plaintiff and the Defendant do not Appear


The Court shall dismiss the plaintiffs claim and if the

defendant has a counter-claim the court will proceed ex
parte in respect of that counter-claim.
Where the defendant has not admitted part of the plaintiffs
claim but admits part of it.
Order IX rule 8 the dismissal under this rule is res judicata.
Order IX rule 9 the plaintiff may apply to the court which
dismissed the suit for an order setting aside the ex parte
decree passed against him. This is by way of chamber
summons supported by an affidavit with sufficient grounds to
persuade the court to set aside the dismissal order.
NB: An order to set aside the dismissal under order IX rule
8 cannot be made

unless the defendant has been notified.

An order to set aside the dismissal order cannot be

made ex parte.
Difference between ex parte judgment and ex parte
An ex parte decree is a decree which arises out of judgment
which was entered against the defendant either after failing
to file WSD or for his non-appearance on the first day of


Where the defendant appears on the first day of hearing but

does not appear on the day of judgment he cannot be said to
be given an ex parte judgment but an ex parte decree.
Remedy for ex parte judgment
Refer Order IX rule 13.
Sufficient Cause depends on the material circumstances of
the case e.g. ignorance of procedure,
Illness of the party or his advocate, Lack of transport etc.
T.M. Sanga V. Sadrudin G. Alibhai & Ors [1977] LRT 51
It points out circumstances under which the rule (rule 13)
can be applied.
1. Uncertainty of the service of the summons is
sufficient reason for allowing an application to set
aside an ex parte judgment and decree thereof.
2. It is important to consider whether there are any
triable issues in case the judgement is set aside.
When the court sets aside the ex parte judgment it sets a
date for proceeding with the suit and hearing will continue
as if no judgment had been entered.



The court is required to examine the parties to ascertain









contestation) and if they are what the real points of

controversy between them.
This examination as also the purpose of framing the issues.
Order X rule 1 makes it mandatory for the court to examine
the parties. Under rule 3 of Order X the examination must
be reduced in writing and form part of the record. Compare
with the Pre-trial Conferences in the US system.
Every party has a right to know the nature of its opponents
There are several ways through which the party will know
the nature of his opponents case. E.g.1. Pleadings. 2.
Interrogatories. 3. Discovery of Documents. 4. Inspection of
What are Interrogatories?
Interrogation is the act of questioning.
Interrogatories are, therefore, written questions put by a
party to civil proceedings to his opponent which must be
answered by his opponent by his filing an affidavit in answer
to the interrogatories. These interrogatories are normally
put to the opponent in preparation for the hearing of the


Functions of Interrogatories
1. They enable the party presenting them to know the
nature of the opponents case. They enable the
opponent to prepare his case e.g. evidence etc.
2. They shorten the proceedings in that the opponent
may admit certain facts and once these facts are
admitted no need of evidence. The answers to the
interrogatories help to determine which evidence is
necessary and which is not.
3. They lessen expenses of litigation.

Marriot V. Chamberlain (1868) 17 QBD 154

Every party to civil proceedings is entitled to know the
nature of his opponents case so that he may know before
hand what case he has to meet at the hearing. However
such a party is not entitled to know facts which constitute
exclusively the evidence of his opponents case since an







evidence once he knows of it or he may manufacture

evidence to oppose it.
Interrogatories which should not be admitted at all:


A party is not entitled to administer interrogatories for

obtaining a discovery of facts which constitute the
exclusive evidence of his adversarys case or title.
A party is not entitled to interrogate his opponent on
confidential communication between his opponent
and his legal adviser.
Those interrogatories which are injurious to the public
interest or security e.g. the defendant as a military
officer to be inquired on military matters.


Interrogatories on behalf of the above named Plaintiff
(Defendant) for the examination of the above named







datedday of 19.
Did you
Were you.
Was it..
If not werent you
(Set out the interrogatories in the form of concise questions,
each interrogatory to be set out in a separate paragraph
and numbered consecutively.)


The defendant (plaintiff) AB is requested to answer the

interrogatories numbered.etc.
Served this day of 19.

Advocate for the

Plaintiff (Defendant)
The above named Defendant (Plaintiff)
NB:1. The affidavit should be within 10 days and it is called
affidavit for answer

of interrogatories.

2. Failure to answer the interrogatories invite penalty. If

the party refuses to

answer them he shall be

penalized in costs or in some instances he may


his case struck out. This is governed by Order XI rule 18.

Answer to interrogatory
It is a matter of law.
The party who is supposed to answer a question on
interrogatory is supposed to file an affidavit under Order XI
rule 7.
The affidavit should be made to make the questions
answered precisely and correctly.


No exception can be taken in the affidavit. The party should

not refuse to answer any question. However, any just
exception/objection may be raised in the affidavit e.g. the
grounds that it is fishing interrogatory i.e. when its sole
purpose is to discover the evidence of the opponent.







inadequate he may demand full or further answers under

order XI rule 9 by application to the court.
Whereas interrogatories may be termed as a discovery of
facts there is a procedure of discovering documents.
Discovery is governed by rule 10 Order XI.
Any party may without affidavit applies to court by order to
his opponent discover on oath all the documents which are
in his power or possession and which he is going to rely upon
his case. Therefore discovery is a process under which a
party to civil proceedings discloses all the documents he is
going to rely upon in his case.
Discovery is a disclosure of documents made at the instance
of the opposite party.
Refer Section 64 of the Evidence Act


NB: Compare and Contrast orders XI rule 1, XI rule 10 and

XLIII rule 2.
2 Ways of Discovery of Documents
Annexing them to the pleadings
Mentioning them in the pleadings either in the main
body of the pleadings or in the list of documents to
be relied on. Order VII rule 14.
Categories of Discovery
Voluntary Discovery the party discloses the documents he
has and he uses them without the leave of the court.
Compelled discovery is made at the instance of the party
and under the order of the court.
When the order for discovery is made, the party is supposed
to file an affidavit for documents.
Once the affidavit is filed two things may occur:The court at any stage of the suit may order the party







documents before the court.

The opposite party may alternatively at any time of the
proceedings give notice to the party who made the
discovery for the production of the documents for
purposes of inspection either by himself or by his


advocate. It is the duty of the party who holds such

documents to grant the party the right of inspect the
documents. The right should be granted within ten
days of the notice.
3 grounds upon which the party may resist discovery
Documents containing exclusive evidence of title.
Documents which contain privileged communication.
The discovery is irrelevant i.e. it does not go into
answering any material fact in the suit.
There are two types of admissions under the Civil Procedure
Admissions made at the instance of the party admitting
Those admissions which are made at the instance of
the opposite party.
As a General Rule
A party is not prohibited from admitting certain facts.
Normally this is done where the party is sure that contesting
the facts will be of no benefit to him but delay fair conclusion
of the suit and imposes on him more expenses.


When you admit you pay less costs because you dont put
anybody into trouble.
Rule 1 Order XII enables the party to the proceedings admit
the truth of the part of the opponents case or the whole of
it. i.e. Voluntary Admission.
Rule 2 of the same Order provides that at any stage of the
proceedings a party may require his opponent to admit
certain facts or document by A DOCUMENT TO ADMIT facts
or document. Hence there is a admission of facts and
admission of documents.
Where a party refuses to admit any of the facts he will bear
the costs of proving them since evidence will have to be lead
by calling of witnesses etc.
1. Any admission made is for the purposes of the suit
only and not for any other purposes or persons.
2. There has to be filed a notice to admit in the
following format;
(Under Order XII Rule 2 of the Civil Procedure Code)


TAKE NOTICE that you are required to admit the following

facts for the purposes of the above-named suit only.
1. That you lived with the petitioner as husband and
wife for 11 years.
2. That in that period you were blessed by 3 issues.
3. That you subsequently married Y under the Christian
4. That before marrying Y you had jointly with the
petitioner acquired the following assets..
TAKE NOTICE that you are required to admit the said facts
within six days after the service of this notice and in default
whereof you shall bear the costs of proving them.
Dated of .1988




Section 64 of the EVIDENCE ACT requires primary evidence

to be given.
Under section 68 of the Evidence Act secondary evidence
may be given. If the document is in the possession of the
opponent, a notice must be served on that party to produce
the document within 10 days. Failure to produce the
document will make the party to produce secondary
i.e. Admit or Ill produce evidence to prove them and if you
dont Ill have notice to produce them.
1. O.XI rule 13 is used when you want to inspect the
2. Section 68 is used when you want to use the








possession of your opponent. If he refuses to produce

them then you will use secondary evidence.
Production and Impounding of Documents
Order XIII of Civil Procedure Code
All parties have the duty to produce all documents they are
going to rely upon as evidence and which are in their


possession or power, at the first hearing of the suit. This is a

requirement of law under Rule 1 Order XIII.
I such documents are not produced at the first hearing then
the Court may grant leave for its production.
Rule 2 prevents production of the documents at a later stage
which were supposed to be produced at the first hearing.
Note: The impoundment of documents does not mean
admissibility of the documents
The Court is merely concerned about the preservation
of those documents.
They are not admitted at that stage as exhibit but as a
Order XIII empowers the court at any stage of the
proceedings to reject any evidence it considers irrelevant or
Upon admitting the documents as part of the evidence the
court will have to endorse on the documents.
Those documents which have been admitted as evidence
must be returned to the person who produced them in court


at the conclusion of the case or if there is an appeal at the

conclusion of the appeal.
Settlement and Determination of Issues at the First Hearing
Order XIV
The order relates to framing of issues.
Framing of the issues is done in the presence of the parties
and at the first hearing.
There are three Types of Issues.
1. Issues of fact.
2. Issues of law.
3. Issues of mixed fact and law.
There are several definitions but the best one is given by
Order XIV rule 1(2).
Under this rule issues are material propositions of either fact
or law or mixed fact and law which must be alleged by the
plaintiff in order for him to have a right to sue and which has
to be denied by the defendant in order to constitute his


Issues arise-from the allegation by the plaintiff and denials

by the defendant, they constitute the points of dispute
between the parties.
THEREFORE Issues arise from the pleadings.
Whatever alleged/denied constitute an issue.
Issues also may arise from the documents submitted by the
parties to the court or by affidavit submitted by the party to
the court.
Also issues may arise from the oral examination at the first
Order XIV rule 1 provides that. It is the duty of the court to
frame the issues at the first hearing.
The duty is a mandatory duty. The court cannot shun away
from this duty.
There are instances where parties will help the court in
framing the issues. Where the parties are very clear as to
what the real matter is between them they can help the
court frame the issues. In most cases where the parties are
represented by advocates the normal practice is for the
parties to assist the court in framing the issues. The court
has discretion to accept or reject them.



Framing the issues has a very important bearing. Whether
the outcome will be just or unjust it will depend on the
framed issues.
1. It is the issues that direct the parties as to how they
are going to adduce their evidence and not the
pleadings. The issues determine the relevance of the
2. It is the issues which fix the case. A court cannot
refuse to make decision on an issue which has been
framed. The issues are framed to direct the court to
the nature of decision to be made even where the
issue though framed but not pleaded.
Odd Jobs V. Mubia [1970] EA 476.
You can have an issue framed and not pleaded but the court
must decide on the issue.
On the point of that the court has no jurisdiction to decree
on an issue nor been pleaded. The attitude adopted by this
court is not as strict as appears to be as it appears to be in
India. In East Africa, the position is that the Court may allow
evidence to be called and may base its decision on
unpleaded issue if it appears from the course followed at the


trail that the unpleaded issue has in fact been left for the
court for decision.
The decision is supported by the case of NKALUBO V.
KIBIRIGE [1973] EA 103.
At page 105. The same issue arose and the Court of Appeal
reiterated the case of Odd Jobs.
As per the court
While the general rule is that relief not founded on
pleadings will not be

given, a court may allow evidence

to be called and may base its decision




issue if it appears from the course followed at the trial that

the unpleaded issue has in fact been left for the court for
The case introduces the proviso that the freedom of the
court to allow evidence to be adduced on an issue not
pleaded and to base its decision on such issue is not
extensive to an extent of allowing the court to make a
decision on a completely new course of action which was not
See also
1. Mgonja V. Kihiyo
2. Gondij V. Caspar Air Charter Ltd. (1956) 23 EACA
139; 140.
3. Blay V. Pollard & Morris [1930] All ER (Rep) 610,612.
4. Joseph Marco V. Pascal Rweyemamu [1977] LRT 59


In the case of Blay V. Pollard it was said Cases must be

decided on the issues on record and if it is desired they must
be placed on the record by amendment.
In the present case, the issue on which the judge decided
was raised by himself without amending the pleadings in my
opinion he was not entitled to take such a cause.
In another case which was decided in 1932 by the House of
Lords in Bell V. Lever Bros [1932] AC 161 at 216. In this case
the court ruled that a trial court may, with the consent of the
parties, frame and decide on an issue which does not appear
in the pleadings.
Failure to frame issues is a procedural irregularity which may
not be fatal to the proceedings. It will be fatal to the
proceedings when an appellate court forms an expression
that the failure has occasioned injustices to one of the
Norman V. Overseas Motor Transport [1959] EA 131. In this
case the trial court failed to frame issues. On appeal the
issue was whether the failure could be fatal to the
proceedings. The Court stated as follows:


The failure to frame issues is an irregularity, the

question would appear to be whether notwithstanding the
failure to frame issues the parties at the trail knew what the
real question between them was, that the evidence on the
question had been taken and the court duly considered it.
According to the case where the court has failed/omitted to
frame issues, it is apparent that the parties knew what the
dispute between them was and had an opportunity to give
evidence, which has been taken into account by the court to
make its decision. Such failure or omission will not be fatal to
the proceedings. It is fatal only to the proceedings only when
it is apparent on the face of the record that the parties did
not know what the real issue was between them.
The framing of issues like practice of pleading is intended to
avoid taking of the parties by surprise, and also, intended to
assist the court in understanding the case.

The first rule of the thumb where there are both

issues of fact and law in the same suit and the determination
of the issues of law may dispose of the suit then the court
must frame those issues first.

There is no use calling

evidence where the law is clear. The issues of law will be


preliminary issues because their determination will dispose

of the suit. This quickens the process of litigation.
Issues of law are a matter of Judicial Notice. Eg Limitation,
wrong parties, jurisdiction, res judicata, capacity etc.

Framing of the issues of fact comes next.

Note that:- All issues whether of law or fact have got to be

framed in the affirmative. E.g. in issues of law whether the
suit is time barred, whether the suit is not time barred. In
issues of fact whether X is Ys legitimate son / whether X is
Ys illegitimate son.

Issues are not framed in argumentative way.

Issues must be concise, precise and clear questions of

mostly not more than 8 words.


Order XIV rule 6 where the issues are between the parties
and the parties submit them to the Court with an agreement
in writing that they will be bound by the decision of the court
on them the court will have 3 things to do:
1. To ascertain


the agreement was duly

executed by the parties.

2. To inquire as to whether the parties who have
executed the agreement have substantial interest in
the outcome of the case.


3. To see if the issues framed are fit for trial.

If the court is satisfied that the three things have
been complied with

then it will proceed with the

trail of the issues only.

The court has got power to amend the issues at any time of
the trail but it has to be before judgment.
Certain issues can be added by the court in the course of
The suit is now ready for hearing.
After framing of the issues the court may however find no
case to hear and the case will come to an end.
Order XV rule 1: The court is empowered to pronounce
judgment at the first hearing when it is of the impression
that the parties are in no dispute on the points of fact or
points of law. That impression is formed by the court looking
at the pleadings.


Exists in two ways:
1. Where the court establishes that there is no litis
contestatio (contested dispute).
2. Where there are admissions either in the pleadings or
as a result of a notice to admit issued under the
provisions of Order XII.
In both situations the court is empowered to pronounce
judgment and this judgment is a judgment on merit since it
has gone in the substance of the suit.
In a situation where there are more than two parties Order
XV rule 2 will come into play. In this case the court may
pronounce judgement in respect of the parties not in dispute
and will allow the proceedings to go into full hearing in
respect of those parties who are in dispute.
This rule applies mostly in cases where there are more than
one defendant.
Where summons to appear has been issued but at the first
hearing the party has without sufficient cause failed to
produce the witnesses under Order XV rule 4 the Court has
power to pronounce judgment against the party who has
failed to bring the witnesses.



In this case a distinction was made between a dismissal for
lack of prosecution and a judgment under Order XV rule 4.
Technically a dismissal for lack prosecution is not the same
as judgment entered upon.
In one situation what a court does is merely to dismiss the
suit. This happens only against the defendant. You cannot
technically dismiss the defendant. A dismissal for lack of
prosecution is only to the plaintiff.


Where the defendant does not appear and the case is
coming for hearing he suffers an ex parte decree.
Where the defendant turns up but does not comply with the
requirement of the summons to appear eg he does not bring
the witnesses (evidence) judgment will be pronounced
against him in terms of order XV rule 4.
There are two types:Witnesses to give oral testimony before the court, and
Witnesses who are summoned merely for the purposes
of giving/producing documents.


It is the duty of a party to civil proceedings to prove his case.

In the course of hearing we are applying 2 principles of civil
litigation namely:
1. The principle of party prosecution.
2. The principle of Dispositive Election.
The conduct of the case is left to the party to the
proceedings. They are the ones to prosecute their own cases
and to decide which step to take next. The court participates
in the proceedings as a passive arbiters.
The principle operates very closely with the principle of
Under party investigation it is the parties who are supposed
to investigate and collect evidence of their own case. The
Court is ignorant of the case. Refer THE NATURE OF
Therefore it the party himself who will know the nature of the
evidence he will use and the sources thereof.


It relates to what the party can and cannot tell the court.


The party has a choice of whether he should tell the court

anything or not thus he has the election of what to say and
what not to.
The court will assist the parties to compel the witnesses to
appear. Order XVI has the procedure of securing the court
Rule 1 Order XVI provides that at any time after the suit has
been instituted the court may issue witness summons, at
any stage of the case the court may issue summonses
against persons who are necessary to appear before it to
produce documents etc. These summonses are issued on
application by the parties who intend to use the witnesses.
Where the witness does not appear even after due service of
the summons the court will issue a proclamation will be
affixed at the door of the witness or at any other
conspicuous place.
Order XVI rule 10 (2).
The court may order attachment of his property and when
the witness appears the attachment will be raised provided
he pays the court broker.
Another alternative is that the Court has got discretion to
issue arrest warrant with or without bail.


The court may order the witness to be placed under custody

but will the witness give evidence in favour of the party who
has summoned him?
Order XVI allows the court to play an active role in the
proceedings and therefore it is not totally true that courts in
TZ are operating typically under adversarial system.
A witness may not be desired by the party but the court may
summon him. Order XVI rule 14. Under this rule the court
may on its own motion and at any stage of the proceedings
summon a witness who was not summoned by the parties.
This happens especially when the court requires eg expert
opinion. Eg Accountant in fraud cases, medical doctor,
engineer etc.
Refer Joseph Marco V. Pascal Rweyemamu [1977] LRT 59
Thobias Zenda V. Herman Zenda [1977] LRT 23
In the case of Joseph the court stated that where an
additional witness is summoned by the court under O.XVI
Rule14 such witness becomes a court witness and not a
witness for any party to the dispute.
The case of Thobias acknowledges that the court has power
to summon an additional witness if it thinks it necessary so
to do.


Order XVII
Under Rule 1 (1) the court has power to adjourn the hearing
to a future date. It is a discretionary power which has to be
exercised judiciously. There must be sufficient reasons for
Once evidence is taken the hearing is supposed to continue
from day to day until all the witnesses in attendance have
been examined unless the court sees it necessary to adjourn
the hearing till the next hearing.
Agreeing on Adjournment
1. Shabani Mbaga & Another V. Karadha Co. Ltd. [1975]
LRT 13 (HC)
2. A.S. Masikini V. George Mbugus [1976] LRT 62 (CA)
In the two cases advocates for both parties filed letters of
consent for an adjournment.
Per Mustafa J., A consent letter filed by the parties wanting
to remove a case from the hearing list cannot automatically
remove the case from the hearing list no more than an
application for an adjournment or notice of an intention to
apply for an adjournment of a case. An adjournment cannot
be granted as of right but can only be granted for sufficient
course. It therefore involves the exercise of discretion by the


court and this must be exercised judiciously. Once the

pleadings are closed in a case it is the duty of the court to
dispose of the case with reasonable dispatch.
The business of this court is subject to the vagaries of the
business activities of advocates engaged by the litigants
concerned, although a consent letter might be a factor which
may be taken into consideration in an application for an
adjournment. Such consent cannot almost certainly result in
From the 2 cases above we have 3 propositions:1. No adjournment can be opted at the instance of the







circumstances are beyond his control.

2. The engagement of an advocate in another court is
not a ground for adjournment.
3. Illness of a lawyer cannot be a ground for an
adjournment when it is found as a matter of fact that
a party who represented by the advocate had
enough time to engage another lawyer.
The period within which the adjournment should be
granted depends on the decision of the Court.


Where the parties do not appear on the date of hearing

after adjournment it is the discretion of the Court to
further adjourn or terminate the case.
1. Those which are granted for specific date.
In this the court appoints a specified day on which
to proceed with the
See Order XVII rule 2.
2. Adjournment sine die.
Adjournments sine die are those which do not
provide for a specific
date. The matter is simply adjourned unless certain
actions are taken.
The party seeking hearing has got to apply to the
court for fixing of the
date of hearing.
Here there are two positions:1. Where adjournment lasts for one year
If the plaintiff does not apply for hearing date after one
year it is the duty of the court to issue a notice to the


plaintiff to show cause why should not the suit be

struck out.
A general adjournment should not last for more than a
year. If the plaintiff is serious about his case he will not
stay for more than one.
2. In


other case where there has been


adjournment and the case

has stayed pending for a period of three years the court
has the duty to strike it off without giving the plaintiff
any notice.








When a suit is struck out under this rule the plaintiff
may bring a fresh
suit subject to the Law of Limitation.
The Order enacts the principle of Orality of Proceedings
as distinguished from Pleadings.
It also enacts the principle of MEDIACY as opposed to
IMMEDIACY. The court must see the parties and hear





(Commission to examine witnesses).





What is the Order of Hearing?

As a general rule it is the plaintiff who has the right to
begin unless the defendant admits the plaintiffs
allegations but gives counter-allegations in which he
will have to begin.
The person on whom the burden of proof lies is the one
who has the right to begin.
He begins by giving an opening address which comprise
of the general overview of his case and will tell the
court the way he will proceed discharging his burden of
He will in the opening speech tell the court in summary
the nature of evidence and witness he has. In practice it
is not always the case.
Opening speeches are rarely given.
As a practitioner you should see whether there is an
ideal situation for making a speech in the court.
After the opening address
The Plaintiff gives his address. It is at this stage he can
give evidence on oath and call his witnesses one by


After the Plaintiff has stated his evidence then the

defendants gets a chance to state his case in open
audience and gives his evidence.
Immediately after this the defendant has the right to
address the court on all the evidence. This is normally
called the Final Submission.
Then the Plaintiff has the right to reply.
It is the plaintiff who begins and it is him who

Technical Hearing
Under the Criminal Procedure Act section 230 the court
has to rule as to whether there is a prima facie case or
no case to answer
Criminal case can be concluded even before the
accused talks BUT under the Civil Procedure Code there
is no provision which talks about prima facie case. In
East Africa there is no law which talks of no case to
answer in civil litigations as in criminal litigations.
Therefore there is a lacuna in our law. We have to go to
the provisions of section 2 of the Judicature and
Application of Laws Ordinance (JALO) cap 534. (22nd July
1920). Under this provision the procedure used in









procedure under Common law of no case to answer.

The procedure to be followed for no case to answer in
civil litigations in Tanzania according to case law is
different from that of criminal litigations.
In criminal proceedings once the court has established
that there is no case to answer the court cannot compel
the accused to say that there is a case to answer.
What is the Submission of No Case to Answer in Civil
See Ramsden V Ramsden [1954] All ER 623.
Vye V. Vye [1969] All ER 29
In the case of Ramsden it was stated
There are two sets of circumstances under which
defendant may



submit that he has not case to






submission that accepting plaintiffs evidence at

its value no case

has been established in law

and in the other that the evidence led



plaintiff is so unsatisfactory or unreliable that the

court should find that the burden of proof had not
been discharged.


Submission of No Case to Answer in Civil Cases

Can a defendant, at the close of a plaintiffs case
submit in law that there is no case to answer?
Refer Hon. JKs decision in MWALIMU PAUL JOHN
MHOZYA V. THE AG HC Civil Case No. 206 of 1993 DSM
Registry; citing the case of Daikin Air-conditioning (EC)
V. Harvard University (DSM) Civil Appeal No. 21 of 1976.
He held: A submission of no case to answer in a civil
case stands on the same footing as a submission of no
case to answer in a criminal case, save that there is a
difference in the standard of proof. What then is the
test to be applied when such a submission is made? As
I understand the law, when the dismissal of the
plaintiffs case on the basis that no case has been
made out is prayed for, the court should not ask itself
whether the evidence given and/or adduced by the
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a court, applying its mind reasonably to such evidence,
could or might (not should or ought to) find for the
plaintiff. The submission of no case to answer cannot
be upheld if there is sufficient evidence on record on
which a court might make a reasonable mistake and
enter a judgment for the plaintiff. Whereas the test to
be applied at the close of the defendants case is what
ought a reasonable to court to do? The one to be


applied on determining the validity or otherwise of a

submission of no case to answer is what might a
reasonable court do? :
See: Supreme Service Station (1969) (Pvt) Ltd v. Fox
and Goodridge (Pvt) Ltd 1971 (1) RLR 1. The latter test I
have described is the one I must apply in determining
Mr. Mwidundas submission in the matter now before




A submission of No-Case-To-Answer does not have an
automatic effect of suspending the proceedings until
the decision is made on whether a prima facie case has
been established or not. It is the duty of the court to
put the defendant to an election. The defendant will
have two options:
1. He may rely totally on the submission of no case
to answer in which case he court will have to
make a ruling; or
2. He may submit that he does not have a case to
answer and yet produce evidence against the
plaintiffs allegations.
Once the Court addresses its mind to submission of no case
to answer and then overrules that submission then it


proceeds immediately giving a judgment basing on the

evidence given instead of adjourning the hearing.
The procedure has been discussed in the following cases:
1. Alexander V. Rayson [1936] 1KB 169
2. Parry V. The Aluminum Corporation Ltd. [1940].162 LJ
3. Laurie V. Raglan Building Company [1942] 1KB 152
The three have one thing in common. They are authority for
the proposition that where a submission of no case to
answer is given by the defendant, it does not mean that by
the defendant submitting a no case to answer ipso facto
loses his right to call evidence when his submission is
overruled. He loses his right to call evidence only when he
definitely elects not to call evidence. Such an election can be
made either expressly or impliedly.
HAVARD UNIVERSITY (HC) Per Samatta J, Civil Case No. 21/76
Unreported. This case adopted the three cases cited above.
All witnesses have to be examined in open court under the
personal direction of the magistrate or the judge. The
evidence has to be recorded in the language of the court in
the narrative form except where the party considers that a


particular question or answer is important and also the court

considers it so.
When certain questions are objected to by one party but
allowed by the court the reasons for allowing them must be
The court also has the duty to record the impressions on the
demeanour of the witnesses before it i.e. Judges Notes.
When a witness has been released the court has power
under order XVIII rule 12 to record the examination. When
the magistrate fails to conclude the hearing the evidence he
has recorded may be used by the subsequent magistrate.
But in the case of Thobias Zenda V. Herman Zenda
[1977] LRT n.23 it was stated that where the decision
depends on the previous magistrates observation of the
demeanour of the witnesses the correct position should be
concluded by the same magistrate or the trial starts afresh
before a new magistrate.
Affidavits are written statements of evidence which are
sworn before a Commissioner for Oaths.
Mainly they are not used for the main suit because of the
fact that in the main suit the principle of orality applies.
Refer Order XLIII Rule 2 of the Civil Procedure Code.










statements, the opponent has a right to demand personal

appearance of the witness for cross-examination but this is
within the discretion of the court.
The Person who swears the affidavit is called a deponent.
General Rule:
All civil proceedings must be commenced by a plaint and
evidence must be viva voce i.e oral.
However the court has discretion to allow evidence in
writing. When the court allows that evidence to be in writing
it has to be by way of an affidavit.
1. That affidavits save time.
2. There is a disadvantage of the court not observing the
demeanour of the witness.
3. Affidavits are evidence and they should therefore follow
the rules of evidence. Nothing is inadmissible in oral
evidence that can be made admissible in affidavits.
1. Affidavits are Court Documents. Like any other court
document an affidavit has to have a TITLE i.e Name of


the Court, Parties, Nature of the Proceedings and their

2. If the deponent is a Christian there may be a clause to
make an oath. In any other religion the deponent
solemnly affirms.
3. All affidavits have got to be sworn in the first person.
Nobody can swear an affidavit on behalf of another.
This will be hearsay evidence. It should be either I or
4. All statements of fact in an affidavit must appear in
separate paragraphs which must be consecutively
5. An affidavit should not contain hearsay evidence
virtue of Order XIX rule 3 a deponent may swear on
certain facts on the information in belief of that these
can be disclosed.
6. Affidavits







submissions and therefore they should not contain

argumentative material but statements of fact.
7. All affidavits have to be signed by the deponent in the
presence of a Commissioner for Oaths. The signatures
must be accompanied by the date. The left hand
corner of the affidavit is known s the Jurat. ie SWORN


8. An advocate who draws an affidavit for his client

cannot attest it by himself. He must find another
advocate to attest it.
A defective affidavit is the one which breaches the rules
relating to the drafting of affidavit.
A defective affidavit is generally rejected by the court.
However, superficial defects can be allowed to be rectified
eg by removing the offensive paragraphs and leave
the clear ones.
1. Project






Corporation [1974] LRT n. 10

- It deals with defective affidavits and what the court
will do with defective affidavits.
- It was also held that an advocate who draws an
affidavit for his client should not attest it himself.
2. Mtaki V. January Kapembwa [1976] LRT n. 7
Where an affidavit is made on information it should not
be acted upon unless the sources of the information
have been disclosed.
3. Margovind Savani V. Juthalal Velji Ltd. [1969] HCD 278


The case gives good definitions of an Affidavit and a

Statutory Declaration
Both affidavit and Statutory Declarations are written
statements solely made on oath as true facts on the
knowledge, information and belief of the declarant. In
affidavits one must distinguish between the facts that are
true to his own knowledge from those which he thinks or
believes are true to his information and belief and in the
latter group he must also disclose the sources of his
information as well as his grounds for belief.
The same position was held in the case of Thseen-sthlunion
Export & GMBH V. Kibo Wire Industries Ltd. [1973] LRT n.54.







High Court Civil Case No.293 of 1988 DSM Registry
Mkude J,
Cited KASHIBAI V. SEMPAGANA (1962) EA 16 per Bennet J, in
which the defendant was ordered to furnish particulars of his
defence that the plaint was bad in law and did not disclose


any cause of action.

The learned Judge quoted from the

A.I.R. Commentaries (7th Edition) Vol. II pg. 2182 the

following passage relating to what should be pleaded in
written statement of defence which raises a point of law:
Where the defendant contends that the suit or application is
misconceived he must specify or particularize why he
contends that the suit or application is misconceived. If he
relies on any facts for those purposes he must state those
facts in his pleading, if it is merely the position in law which
he relies on, he must set out with sufficient particulars the









High Court Civil Appeal No. 7 of 1986 Dodoma Registry
Masanche J,
The first legal principle in civil cases is that parties to
litigation are bound by their pleadings and that a court of law
may not depart from the agreed issues unless there is good
cause and unless evidence is led to prove the necessity for
such departure. Spry V.P said in the case of Nkalube V.
Kibirige [1973] EA at page 105 that:
It is true that this Court has said, more often than once, that
while the general rule is that

relief not founded on the

pleadings will not be given (Per SINCLAIR V.P in Gaudy V.


Gaspair (1956) 23 E.A.C.A 139 at 140), a court may allow

evidence to be called (emphasis supplied) and may base its
decision, on unpleaded issue, if it appears from the course
followed at the trail that the unpleaded issue has in fact
been left to the court for decision. (Per LAW J.A in Odd v.
Mubia [1970] EA 476 at p.478).
See: Order VI Rule 17 CPC Amendment of pleadings.
But it was cautioned by the Court of Appeal, in the case of
Eastern Bakery V. Castelins [1958] EA 461 and quoted with
approval by Onyiuke J, in the case of Shivji V. Pallegrini
(1972) HCD n.76 where Onyiuke J, said:As a rule amendments to pleadings should be freely allowed
if they can be made without injustice to the other side. The
powers of amendment should not be used to substitute one
cause of action for another or change an action into another
of a substantially different character.
See also the case of BISHOP H. N. SARYA & 2 OTHERS V.
HC Civil Case No.68 of 1989 Mwanza Registry per Masanche,
Citing Chitaley in the Code of Civil Procedure, at page 1304
The main consideration to be borne in mind in
exercising the discretion (to amend or not to amend)


are that the rules of procedure have no other aim than

to facilitate the task of justice, that multiplicity of suits
should be avoided and that the interests of substantial
justice should be advanced. Thus a court should order
for the amendment of a pleading where there has been
a clerical error, or a bona fide wrong description of
property or where there has been mistake of law or
fact, provided there is no injustice to the other side
which cannot be compensated by the award of costs.
Masanche J adds;
It is gratifying to note that in the recent case of
General Tito Okello v. Sospeter Awiti Civil Appeal No.13
of 1990, of the Court of Appeal, Dar es Salaam Registry,
Makame J.A has advised that where there are errors of
oversight, such as the one here, of defendants not
signing the written statement of defence, or, of
forgetting to attach an annexture to the pleadings,
proviso to Order 7 Rule 110 of the Civil Procedure Code
1966, as introduced by GN, No.228 of 22/10/71 should
be used. The proviso reads:Provided that where a plaint does not disclose a cause of
action or where the suit appears from the statement in plaint
to be barred by any law and the Court is satisfied that if the


plaintiff is permitted to amend the plaint, the plaint will

disclose a cause of action, or as the case may be, the suit
will cease to appear from the plaint to be barred by any law,
the Court may allow the plaintiff to amend the plaint subject
to such conditions as the costs or otherwise as the Court
may deem fit to impose.


Judgments and decrees are covered by O.XX rule 1 CPC.
At the conclusion of the hearing the court will pronounce
judgment. Decree follows the judgment.

Definition of judgment is found under Section 3 of the CPC.

A judgment is a statement of the decision of the court at the
conclusion of the hearing of the case plus the reasons for
such a decision of the court.
In the judgment the court is supposed to address its mind on
the issues, evidence and the provisions of the law which
govern that dispute.
There are however certain circumstances under which the
judgment can be dictated to a Stenographer.


There are two types of judgment i.e. Judgment in Rem and
Judgment in Persona
1. Judgment In Rem
It is a judgment which attaches to the thing. It is a
judgment against

the whole world.

It relates to ones absolute right.

2. Judgment In Persona

It is a judgment which attaches to a person. It

relates to the right of

that person only but it

does not include other better rights invested

in other persons.
For example Land lord & Tenant/Trespasser.
They are rights inter se and the judgment should be in