CIVIL PROCEDURE QUESTIONS AND ANSWERS.

QUESTION
“Recent statutory developments in Tanzania have thrown the concept of jurisdiction into
disarray”
Discuss

OUTLINE

1.0 INTRODUCTION
1.1-The concept of jurisdiction

2.0 MAIN BODY

2.1 Statutory development and the changes in jurisdiction

2.2 Jurisdiction as to the General and Special Courts
2.3 The Recent Statutory Development and the Concept of Jurisdiction
2.3.1 Advantages of the noted statutory development
2.3.2 Disadvantages of the noted statutory development.

3.0 CONCLUSION

Bibliography

1.0 INTRODUCTION

In Tanzania there has been in the recent years the development of statutes. These
developments have the impact on the jurisdiction of the courts as there has been the
establishment of the courts with special jurisdiction. Though the said developments have
affected the entire system of the courts as there is the establishment of the hierarchy which is
independent such as the land division courts in which the Ward Tribunal is taken as the court
for the purpose of the Act establishing it and at the top there is the High Court Land Division.
Before going to the keen of the question it is better to start by familiarising ourselves on the
concept of jurisdiction.

1.1 THE CONCEPT OF JURISDICTION

The term Jurisdiction is not defined in Tanzanian statutes; hence we have to fall back to the
common law by virtue of section 2 (3) of the judicature and application of laws Act herein
below referred to as the JALA which allows the application of such laws in our legal system.
Jurisdiction is defined as the power or authority of court to hear and determine a cause, to
adjudicate and exercise any judicial power in relation to it1.in other words by jurisdiction it is
meant the authority which a court has to decide matters that are litigated before it or to take
cognizance of matters presented in a formal way for its decision2.

Thus jurisdiction of court means the extent of the authority of a court to administer justice
prescribed with reference to the subject matter, pecuniary value and local limits3. However
generally Jurisdiction is defined as the power of the court or tribunal to hear and determine
matters which are placed before it. Jurisdiction being important matter it was stated in the
case of UTAMWA V AG & MUNGAI4 that jurisdiction must be determined at the
beginning of the proceedings not at the in the course of or at the end of proceedings.

2.0 MAIN BODY

2.1 STATUTORY DEVELOPMENT AND THE CHANGES IN JURISDICTION.

In civil procedure the understanding of the jurisdiction of court one has to look on the statute
establishing the respective court. In our country the civil procedure is guided by the civil
procedure code 1966 which according to section 2 of the code the court in which applies are
the High court, the District court and the Resident magistrate court. However section 7 of the
civil procedure code provides the presumption of jurisdiction to all civil court and gives
cognizance of the power of other statute to oust general civil jurisdiction and to grant
exclusive jurisdiction in certain civil matters.
In recent years there have been enactments of several statutes which in one way have affected
the ordinary application of the jurisdiction compared to what was previously conceived.

The recent development of statutes in Tanzania has witnessed the establishment of several
divisions of the high court which varies the jurisdiction of the court. As it is known the High
Court has been established by article 108 of the Constitution of the United Republic of
Tanzania 1977 as amended from time to time. The jurisdiction of the High Court is provided
for under section 2(1) of Judicature and Application of Laws Act5 that it has an unlimited
jurisdiction over all matters.

There is also the enactment of the High Court Registry rules. These rules established several
sub- registries of the High Court which operate in zones, but this is not to be taken to mean
that, the High Court territorial jurisdiction is confined on the said zones rather it is just for
administration matters only. However, there has been recent enactment of several statutes
which either takes away the jurisdiction of court or makes the court to have concurrent
jurisdiction. To understand this, it is time now we look at different enactments of statutes
which have effect on jurisdiction.

1
C.K. Takwani, Civil Procedure,5th Ed, p 33
2
Official Trustee V Sachindra AIR 1969 SC 823 (827):(1969) 3 SCR 92
3
Raja Soap Factory V S.P Shantharaj A.I.R (1965) SC 1449:(1965) 2 SCR 800
4
Civil Appeal 40/2000.
5
Cap 358 R.E 2002
To start with is the Land Division; this is a division of the High Court which is established
under section 3 of the Court (Land Dispute Settlement) Act. This law has taken away the
High Court jurisdiction over land matters which previously was the concern of the High
Court main division and vested it to the respective division. The Act also has caused the
establishment of the Village Land Council, the Ward Tribunal, the District Land and Housing
Tribunal; which are recognised as courts under the Act. All these bodies established under
that law are vested with exclusive jurisdiction over land matters. The Courts (Land Dispute
Settlement) act is the product of section 167 (1) (b) which vests exclusive jurisdiction on land
matters over among other tribunals the High Court Land Division

Another enactment of law which has affected the jurisdiction of the courts is the Labour
Institutions Act; this law under the provisions of section 50 provides for the establishment of
a Labour Division of the High Court; which is a court which exercises jurisdiction over
labour disputes as provided under section 94 of the Employment and Labour Relations Act
2004.The court has exclusive jurisdiction over labour matters. This court has taken away the
jurisdiction which was at the beginning exclusively vested on the District Court.

Also the Commercial Division of the High Court is one of the High Court divisions which are
established by the high court registry rules. Though established by the said rules it is a
division of the high court and not a sub registry. This new established division is very
different from the two previously explained ones, because though it is established to deal
with commercial matters the law establishing it has not granted it exclusive jurisdiction .It
therefore exercises concurrent jurisdiction with the general division of the high court. The
court has been established to deal with commercial matters.

In recent years there has been enactment of several statutes. The enactment of statutes which
establishes courts usually affect the pre existing system of jurisdiction. A good example is the
Courts (Land Dispute Settlement) Act. This court has varied the pecuniary jurisdiction of
courts over land matters, but with reference to the established courts/tribunals such as the
District Land and Housing Tribunal which has been established by the law, deals with
matters which the subject matter does not exceed 40 million shillings and the Ward Land
Tribunal of which has a pecuniary jurisdiction of 5 million shillings. It should be known that
this law has taken away the primary court and district court ordinary jurisdiction over land
matters and vested it to the afore said courts.

2.2 JURISDICTION AS TO GENERAL AND SPECIAL COURTS

Generally Tanzania has three tier court systems which comprises of the High court at the top,
District court and Resident Magistrate Court at the middle and the Primary Court at the
bottom.
The High Court by virtue of section 2(1) of JALA, has unlimited civil jurisdiction,
territorially and pecuniary. The Resident Magistrate Court and District Court have concurrent
jurisdiction over civil matters as provided under section 41 (1) of the Magistrate Court Act,
1984. District court and resident Magistrate court are established under sections 4 and 5 of
the MCA respectively. The civil jurisdiction of the two courts before the recent statutory
development is as follows.

The pecuniary jurisdiction of the district court in relation to immovable property is

150,000,000/=Tsh. And in respect of the subject matter capable of being estimated at money
value, the courts can entertain such matters where the value does not exceed
100,000,000/=Tsh6. The Resident Magistrate having concurrent jurisdiction with District
court could entertain matters of the same pecuniary value. It should be known that before the
recent statutory development, the court could try any civil matter of any subject matter. And
also the district court had exclusive jurisdiction in labour matters.

However, recently there has been statutory development which has affected the ordinary
jurisdiction of courts in entertaining civil matters; for example, there have been established
division in the High Court which have exclusive jurisdiction over land matters, another
division vested with exclusive jurisdiction over labour matters and another division dealing
with commercial matters. However, the main division of the high court has retained unlimited
jurisdiction over other matters except those which the divisions have been given exclusive
jurisdiction i.e. Land, labour and commercial divisions.

Also the exclusive jurisdiction of the district court to deal with labour matters has been taken
away and it is now vested in the high court labour division by virtue of section 50 of the
labour Institutions Act. This division has been granted exclusive jurisdiction over labour
matters.

The jurisdiction of district court in respect of land matters has been also ousted under the
provisions of section 3 of the Court (Land Dispute Settlement) Act which has established the
high court division, the District land and housing tribunal and ward tribunal and village land
council which has been vested with exclusive jurisdiction over land matters.

The pecuniary jurisdiction of the district court also has been specifically granted to the court
by virtue of the Written Laws (Miscellaneous Amendments) Act 2004.under the law which
amends the Magistrates Courts Act Section 40 adding that the court will deal with
commercial matters and also that its jurisdiction on such matters in respect recovery of
possession of immovable property where the value does not exceed fifty million and in
respect of subject matter that can be estimated at money value the amount should not exceed
thirty million.

6
This is provided by the Written Laws (Miscellaneous Amendment) Act No 3 of 2002
Formally under section 18 (2) of the Magistrate Court Act the chief justice had power by
order published in the government gazette to make rules which could give the primary court
jurisdiction on the land matters especially on the administration of the estate of the deceased
person provided that the deceased person at a time of death had a fixed place of a body within
the area of the jurisdiction of the court and the law applicable in the administration or
distribution to the estate is customary or Islamic law. The chief justice enacted these rules by
virtue of GN No. 320 of 1964. So having the hierarchy of the courts on land matters from
ward tribunals (special courts) the jurisdiction formally vested on the primary court is bared
by this hierarchy of land courts at the matters would be directed towards these courts.

2.3 THE RECENT STATUTORY DEVELOPMENT AND CONCEPT OF

JURISDICTION

The overview of the recent statutory development and its impact on the concept of
jurisdiction is two folds. To determine whether the statutory development in Tanzania has
thrown the concept of jurisdiction into disarray or not one has to look on the advantage and
disadvantages of the creation of the special divisions of the courts.

2.3.1 Advantages of the noted statutory developments.

The statutory development has helped to provide specific courts to deal with specific cases
arising from specific discipline for instance the land division which have exclusive
jurisdiction in land matters. Thus the specialization of the courts in different disciplines
shows the picture of the well organized court system.

Also this development has facilitated the disposition of cases easily this is because before the
introduction of these divisions all cases were confined in the general or ordinary jurisdiction
of the courts. For instance the district courts apart from having exclusive jurisdiction on the
labour matters such jurisdiction has been vested into the labour division hence reduce the
burden to the district courts of dealing with numerous cases. This in fact has facilitated
disposition of cases.

2.3.2 Disadvantages of the noted statutory developments

It is well settled law that the court of appeal is not established by the Act of the parliament
however following the introduction of the Courts (Land Dispute Settlement) Act recognises
the court of appeal as the court with jurisdiction over land matters. This recognition by
section 3 (2) (e) of the Act brings inconsistence because as far as the jurisdiction of the courts
because the court of appeal does not have original jurisdiction. What was supposed to be the
concern of this provision was to deal with the courts of original jurisdiction. Whereas this
section has lead into conflict as the court of appeal, the court of appeal has jurisdiction as
provided for by the Appellate Jurisdiction Act, 1979.
In addition the establishment of the division of high court are acting as the bar towards the
access to justice, for instance the high court commercial division has only sub registry in
Arusha and main registry in Dar es Salaam. Also the high court land division has its
establishment only in Dar es Salaam therefore the cases of land matters in the other regions
have to wait the circuit movement of the judges from Dar es salaam which acts as the delay
as it is not easy for them to circulate in the country at appropriate time.

The exclusive jurisdiction vested in the general division of the High Court for instance
exclusive jurisdiction on bankruptcy, probate matters in exclusion of small estate, company
especial in insolvency and winding up and admiralty plays as disadvantage as it leaves only
one step for the appeal by the one having suit to be dealt by this court.

The recent development of statute has a disadvantage in that, it has witnessed the
establishment of several courts with exclusive jurisdiction this has caused confusion to people
as they fail to know exactly that as to which court they should institute their case, this may
result into dismissal of cases. This is a result of people’s ignorance in law and changes
therein.

Further, another disadvantage due to the development of the commercial court it has been too
cost full for people to file suits in commercial courts hence deny peoples rights as they cannot
afford such cost to institute their cases. On top of that the Commercial Division of the High
Court as it has concurrent jurisdiction with other divisions of the High Court it appears that
case which were supposed to be instituted in this division of the High Court can either be
instituted in the Land Division7 or in the General Division of the High Court.

There is another problem as far as the jurisdiction of the courts as it appears apparently that
under section 40 (2) (a) and (b) of the Magistrate Court Act that the District court has
pecuniary jurisdiction over immovable property as it is 150,000,000 and 100,000,000 for the
other properties where then subject matter is capable of being estimated at money
value.8From the provisions of this Act the District Court is having the jurisdiction on the
immovable and other properties as given by these laws.

At the same time the District Court has jurisdiction over the commercial matters where in
section 2 of the Magistrate court there the inclusion of the term Commercial Case9 whereby
the court has jurisdiction on the commercial cases in which the district court has jurisdiction
on proceeding of immovable property not exceeding fifty million, and proceeding in which
the value can be estimated at a money of the subject matter not exceeding thirty million. The

7
The cases involving securities like mortgages and other cases which are involving commercial activities but
they involve securities like land
8
See the Written Laws (Miscellaneous Amendments) Act No 3 of 2002
9
In the Written Laws (Miscellaneous Amendment) Act No 4 of 2004, commercial means a civil case involving
a matter considered to be of commercial significance including but not limited to [See those instances
provided under roman I to roman xi)
problem with these laws is that it appears difficult on the part of jurisdiction because people
found it difficult as to which court to institute the suit whether to be instituted in the district
court or the land division as the law deals with the immovable property, or the part of the
district court with the commercial division.

3.0 CONCLUSION

To conclude, generally the law of Tanzania is the law which has not reached the stage of its
development in which the community can come up with the conclusion that there is the
settled law in Tanzania. Following the present court system it is evidenced that even the
jurisdiction vested to some courts by either the statutes establishing them or other statutes
have experienced either the express bar of jurisdiction or the bar of such jurisdiction by
general implication. This is because the adopted statutes from the common law are under
transformation to suit the situation of our local circumstances.

The present statutory development therefore apart from facilitating the attainment of justice
in the society its impact has affected the existed jurisdiction of the courts that in a large part
of the country due to ignorance of law it has become difficult for the society to comprehend
with the new enactments as far as the jurisdiction of the courts is concerned. All in all the
statutory development in Tanzania is aimed not to outer jurisdiction of the courts but the
main purpose is to facilitate the attainment of justice by adopting the system of specialization.

Qn:
Find out how do the provisions of the civil procedure code, 1966 reflects the adversarial
system of procedure.

OUTLINE

1.0 INTRODUCTION
-Meaning of Adversarial Dispute Settlement
-Features of Adversarial Dispute Settlement

2.0 MAIN BODY

2.1 The Reflection of the Adversarial System in the Provisions of the Code.

2.2 Observation of the Code In Relation to the Adversarial System.

3.0 CONCLUSION
 BIBLIOGRAPHY

1.0 INTRODUCTION

The concept of Adversarial system

There are several ways in which disputes involving individuals in the society can be settled:
one of the ways is the adversarial system of dispute settlement. This is a system whereby the
court has no role to play except in the hearing of the case, it is different from what is
commonly known as inquisitorial system of dispute settlement. Adversarial system is a
system where the parties to dispute appear before the court as enemies, they are the ones to
prosecute the case, to decide on the procedural step to take and at what time, also the court
plays a passive role.

The system has several features such as; the court merely plays a secondary role of enforcing
the rules of procedure and will not take any procedural step which is within the parties rights’
to take or not to take without an express request from the parties. there for as Dr Lamwai10
says the courts role is reduced merely to that of an umpire’s role court does not have
investigative powers, can not call independent witnesses and can not try the issues which are
not disclosed by the pleadings

The parties therefore under adversarial system play the predominant role in the conduct of the
litigation until the actual trial which come from the predominant control of the court here the
parties are regarded as opponent or adversaries who subject to the rules of court and orders
made by the court in particular proceedings are free to conduct their litigation in their own
way.

The parties are required to prepare their own cases for trial and make their own investigations
in this sense therefore there is the party investigation and party prosecution. The party is
supposed to call his own witnesses and to present his own case at the trial. Also the parties
are the masters of procedure as any procedural step taken in a civil case must be taken by
parties .Example the law allows the parties to exhibit interrogatory but does not bind them to
do so, this is what is called dispositive election. And finally the court gives his judgment after
hearing both parties.

The adversarial system which owed its origin from the English Legal System presupposes
the giving of decision on the basis of winner takes all. This system however was adopted in

10
Lamwai, R.M, PhD Dissertation, P.6
Tanzania by the reception clause which received the English Laws both procedural and
substantive11.

As to whether the courts in Tanzania adhered to the principles of Adversarial system of

dispute settlement strictly the position was stated in the case of JOHN MAGENDO V
GOVANNI12 where the High Court stated that where a particular provision of law is cited
wrongly it is the duty of the court having taken judicial notice of the law to correct it. Thus
the case enunciated the position as to the status of adversarial system in Tanzania that the
courts should not play hundred percent passive roles like in England.
2.0 MAIN BODY

After looking into the concept of adversarial dispute settlement it can be deducted that the
system is also used in Tanzania to solve civil dispute, where by one of the statutes used is the
Civil Procedure Code 1966 cap 33 RE 2002 (here in below referred to as the Code). As
required by the question we shall now deal with the Code as to how it reflects the adversarial
system.

2.1 The reflection of the adversarial system in the provisions of the code.

The existence of a dispute between persons presupposes the existence of a litis contestatio
this is established where there has been a demand by one of the parties by way of a demand
note and it has been met by a refusal by the other party. At this instance it is on the discretion
of the party making such a demand to take the matter to court.

On the institution of any civil suit usually there are two parties that is the plaintiff who is the
claimant and the defendant who disputes the claims. Order I rule1 deals with the plaintiff
while Order I Rule 3 deals with the defendant in a civil suit. Under section 22 of the code it
is provided that a suit is instituted by the presentation of the plaint or in any other manner
prescribed. Usually it is presented by the plaintiff. This should be read together with Order VI
Rule 1 which provides that there should be pleading.

Pleading includes plaint and written statement of defence which is a document drawn by the
defendant in reply to what has been stated in the plaint by the plaintiff. Where there is
pleading the sense of adversarial system is reflected as after presentation of the plaint by the
plaintiff will make the defendant to react by presentation of written statement of defence as
provided under Order VIII of the code this will only be possible where the defendant has
been summoned as required by Order V Rule 1 (a) and (b). From this it can be seen that there
is an active role of parties on the stage of institution of the suit and the court here plays a
passive role this reflect on the adversarial system where by the system needs an active
participation of parties in a suit.

11
Article 17 (2) of the Tanganyika Order in Council 1920 (22/7/1920) imported into Tanzania the English
common laws the Doctrines of Equity, and statutes of General application.
12
[1973] LRT n 60
On the same aspect another sense of adversarial system is evidenced under Order VII Rule 9
which requires the plaintiff to endorse on the plaint or annex there to, a list of documents (if
any) which he has produced along with it. The collection of evidence and the presentation
before the court is done by parties to the dispute; here the court plays a passive role. The
finding of evidence by parties to dispute therefore reflects the adversarial system of dispute
settlement.

Also the code reflects the adversarial system on the hearing stage, where it envisages for the
appearance of the parties to the suit before the court as provided under Order III Rule 1 of the
Code. Here the party himself may appear or may be represented by an advocate or by a
recognised agent. Order IX rule 9 imposes the duty to the parties to appear before the court
for the hearing or when summons is served. In the adversarial system appearance of the
parties before the court is the inherent feature which in our law has been reflected in the
above provisions. This duty is of paramount importance because the parties will be in the
position to contest in the court and the judge/magistrate will be there as an umpire regulating
the contest of the parties.

The code under Section 26 is to the effect that witnesses can be summoned to give evidence
pursuant to sections 23 and 24 the same is well expounded under Order XVI Rule 1 that the
parties at any time may apply to the court to obtain summons to be served to the
persons/witnesses to appear before the court and give evidence. This presupposes that the
parties to the suit are the masters of procedure they have to decide what procedural steps to
take and at what time and the court becomes an arbiter or a referee hence becomes one of the
ways in which the code reflects the adversarial system of procedure.

Again under Order XVI Rule 2 (1) the cost for calling witnesses is incurred by the parties
which as a matter of procedure it is given to the court before the summons is granted and the
time to appear is fixed. This reflects adversarial system which advocates for party
investigation and prosecution as the parties are required to prepare his own case for trial
hence the cost incurred therein is of the parties.

The parties in the suit have the rights to examine the witnesses, the aim being to collect
enough evidence to support their suit Order XVIII Rule 2 (1) .The court in adversarial system
operates in the basis of judicial ignorance and thus the court let the case unfold as presented
by the parties; Hence the parties have to examine the witnesses they have called as the parties
are presumed to have the best knowledge of their case.

In the adversarial system of dispute settlement the parties are required to make investigation
and discoveries of their own case, the code under provisions of Order XI Rule1 provides that
the parties to a suit being plaintiff or defendant may make interrogatories to the other party by
the leave the court so as to make investigations(to enable the party to know the nature of his
opponents case) on the matter in dispute provided that the interrogatories are given in one set
unless otherwise provided by the court and such interrogatories should relate to the matter in
dispute. Interrogatories are written questions which are put by a party to civil proceedings to
his opponent and which must be answered by the opponent by filling an affidavit. There is no
limit to the time in which interrogatories may be exhibited.

To enhance the contest between the parties to civil proceedings the code entitles the parties to
issue a notice to his opponent for inspection of documents which are in his own possession or
power as it is shown in Order XI Rule 13.to all these inspection and discoveries aimed at
collecting evidence by the parties themselves. From this it can be said that likewise in the
adversarial system parties are required to conduct investigation of their own case. And the
court is there to listen the reason being that in private property and incidence of their
ownership is known only to the owner as no way the parties can be excluded hence it is the
party who knows where to find the evidence and therefore they must find their evidence at
their own expense as provided under Order XI rule 3.

After completion of recording the evidence submitted by each party before the court, finally
the presiding officer of the court gives his judgment. This is the procedure adopted in
adversarial system. Likewise under code, section 28 provides that; the court after the case has
been heard, shall pronounce the judgment, and such judgment a decree shall follow. Thus
section 28 has to be read together with Order 20 Rule 1 and 2 which provide for the
pronouncement of the judgment. What is implied in these provisions the court pronounce the
judgment after and the judge or magistrate who usually play the role of being passive has
heard the evidence of the parties. This is the feature of adversarial principle and their
judgment pronounces is on the basis of winner takes all. Further after the winner takes all, the
decree holder shall file for the execution of decree under the code Order XXI.

2.2 Observation of the Code In Relation to the Adversarial System

Having seen the reflection of the adversarial system in the code it has to be noted that the
court plays a passive role as stated by Biron J, on an appeal originated from the Resident
Magistrate of Morogoro in the case of JOHN MAGENDO V. GOVANNI (supra), however
he went further to point that the court should not play a total passive role rather it should play
assistance role as not to watch the parties making procedural blunders. The court should
advice the parties on procedure and what they are supposed to do in order to prove their case.

Although the code is based on the adversarial system of the administration of justice, there
has been a judicial modification of the adversarial system in Tanzania to give the court some
active roles to play in the cause of hearing a case. The parties still have a choice of the
procedural steps. But where it is apparent to the court that one or both parties is unable to
proceed properly because of his ignorant or legal illiteracy then it is upon the court to advise
that party in a way that, it is one of the methods to guarantee the access of justice in
Tanzania.

Further the court also had been given a more active role under Order VIII A of the code; the
order introduced some new procedures in our civil litigation that before the case set for
hearing under adversarial procedure the court sit as a mediator, in a system which is called
Alternative Dispute Resolution. This is alternative to the adversarial system, that instead of
adjudication in adversarial system which based on evidence and law, the Alternative Dispute
Resolution is held by a mediator instead of a judge. Therefore the code is partly adversarial
and partly reconciliatory.

CONCLUSION
Conclusively it could be said that, the civil procedure code, 1966 has reflected the adversarial
principles of dispute settlement an applied in England. However some modifications have
been made in the code to ensure that it suits our conditions. It should be borne in mind that
adversarial system of procedure much assumes legal literacy to the parties involved and that
is why they are left to conduct their case alone and the court remains an umpire. This fact
when taken in our country it can be seen that the level of legal literacy by the citizens is very
low together with the poor economic condition which hinders people to hire advocates made
it essential that the code is amended so as to accommodate all persons

Qn: Joinder of parties and representative suit are similar and dissimilar. Discuss.

TABLE OF THE CONTENTS

1.0: INTRODUCTION
1.1: The concept of parties to the suit.
1.2: Meaning of Joinder of parties and Representative suit

2.0: MAIN BODY

2.1: The Similarities between Joinder of parties and Representative suit..
2.2: Differences between Joinder of parties and Representative parties.

3.0: CONCLUSION

REFERENCE.

1.0: INTRODUCTION
1.1: The concept of parties to the suit.
In a general rule, in any civil suit there must be two parties to a suit. These parties are the
plaintiff and the defendant13. The general principle is that a plaintiff should be the person who

13
These parties are further categorized into necessary party(which refer to that party whose presence in court is
necessary for the purpose of issuing an effective decree) and proper party(which refer to that party whose
presence in the court is dispensable, that is its presence is not necessary for the court to issue an effective decree,
but whose presence is important)
is directly claiming a right against another, or who is claiming directly under him. Such right
is not merely a moral right rather a legal right in law. On the other hand, a defendant is a
person against whom a right in law is claimed.

In a civil litigation, it is for the plaintiff to prosecute the case while the defendant has to
defend the case as against the plaintiff. For instance if A is claiming against B and that the
former has instituted a civil case in a court against the latter, then A becomes the plaintiff
who is prosecuting the case against B who is the defendant defending the case against A.

1.2: Meaning of Joinder of parties and Representative suit

Within the concept of parties to the suit there arises the concept of Joinder of parties and
Representatives. No one can be compelled to join as a plaintiff in one suit with another
person. However the law provide for those who can sue or be sued jointly. Order I Rule 1 and
3 provide for who can be joined as plaintiffs in one suit, and who can be joined as defendants
in a suit respectively. It follows therefore that the joinder of parties is permissive however, it
is not mandatory14.

In deciding whether to join plaintiff or defendants one has to look on the cause of action. This
implies that, when talking of joinder of parties, there is a connection between Order I and
Order II which relates to the joinder of cause of action. In fact, no where in the Civil
Procedure Code15 where there is an express definition of a cause in action. But in the cause of
practice, it is commonly known as the legal complaint raised by the plaintiff against the
defendant and it comprises all the facts which are asserted by the plaintiff and denied by the
defendant. All these facts have to be proved by the plaintiff in order to make him be entitled
to relief.

Under Order I Rule 1, all persons may be joined in one suit as plaintiffs where any of such
persons has a right to relief arising out of the same act or transaction or series of acts or
transactions and where it is proven that if separate suit were brought, common question of
law or fact would rise.

It is in the interests of the republic that litigation must come to an end, and that good
administration of justice is not interested in the multiplicity of suit. Multiplicity of suits
weaken the society because more time will be spent in litigation than in production and
further will create possibility of having conflicting decisions by the same court or different
courts on the same facts and same law.

Therefore in joinder of parties, the law creates a favourable condition where the same
evidence which is going to be adduced by the plaintiff against several defendants or by
defendant as against the plaintiff, to be jointly used in prosecuting or defending a case.

14
This is in the fact that, where the court is of the view that joining of the parties would embarrass or delay the
trial may put the plaintiffs to their election or order separate trials or make such other order as may be expedient.
This is as per Order I Rule 2.
15
Cap 33 R.E.2002
It has to be noted however that there are basically two requirements as to the joinder of
parties to be possible. That is there must be a right to relief which has to be legal right and not
moral right. This legal right must arise out of the same act or transaction or series of acts or
transactions. It is not necessarily that the parties joined should have the same relief or
common relief claimed against the defendant. What is important is that such claims arise out
of the same act or transaction.

The other requirement is that, one should establish that, if separate suits were brought either
by the several plaintiffs against several defendants, then common question of law would
arise. This was stated in the case of STROUD V LAWSON16 where the court stated that on
determining the issue of whether to join the parties in one suit, the common question of facts
is looked upon the evidence which will be required in proving the different suits by different
parties or against the different parties or defendants if separate suits were brought.

On the other hand, Representative suit is a suit in which a small group of persons are allowed
to institute a suit and prosecute it on their own behalf and on behalf of others who are not in
the court. Where the court pronounces its decision, then it binds all who are in and those not
in the court. In U.S.A this is termed as group action. It happens where there is a group which
intends to pursue group interests. Such suits can not be instituted without court issuing the
court Representative order.

In order for a court to issue a representation order, it has to be satisfied itself that there is a
joint interest among the members of the group. The law regarding representative suit is
provided under Order I Rule 8 of the Civil Procedure Code. And as it was stated in the case
of DAUDA ABDULLAH V AHMED SULEIMAN17 where the Court when interpreting the
provisions of Order I Rule 8 of the Kenyan Civil Procedure Code which is in pari materia
with the same provision under the Tanzanian Civil Procedure Code, had this to say;
“We have to consider the language of Order I Rule 8 and be guided by it and not
attempt to extend or limit what according to its natural construction appears to be
ambit of the rules. The rule authorizes the bringing of a representative action only
where there are numerous persons having the same interest in the suit. It says nothing
whatsoever about suits founded in contract or in tort or any other kind of suit. The
sole test is whether the plaintiffs and persons whom they claim to represent have the
same interest”

Therefore, in the light of the above authority18, a representative suit does not depend upon the
nature of suit. A representative suit depends upon the existence of the joint interest in the suit

16
[1898]2Q.B.44,52
17
[1946]13EACA 321
18
DAUDA ABDULLAH’s Casesupra followed an English case of the DUKE OF BEDFORD V
ELLIS&OTHERS[1901]AC 7 which is one of the leading cases in Representative suit. In the latter case, Lord
McNaughten, J, had this to say;
by those seeking to represent others and those to be represented. In actual fact when the court
is considering a representative suit it has to take into account whether there is a common
interest among the parties and whether they have common grievance19.

2.0: MAIN BODY

The center of this work requires a discussion on the similarities and differences of the Joinder
of parties and Representative suit. These can be discussed here below as follows;

2.1: The Similarities between Joinder of parties and Representative suit..

The two resemble in the sense that when separate suits are filed, common questions of law
and facts would arise. This is as per Order I Rule 1&3 of the Civil Procedure Code for the
case of joinder of parties.

Both save time of the court. This is inline with the maxim that it is in the interests of the
republic that litigation should come to a speed end. Institution of separate suits may cost the
court the time to hear and determine all such suits which in actual sense do have connection
to one another at the same time on the part of representative suit, representation of so many
parties to a suit where all such parties do have common interest and common grievance will
cost the court time to hear all such parties with common interests.

They are all aimed at avoiding multiplicity of cases. That is in case of representative suit,
instead of each party coming before a court suing on the different cases with same facts and
common interests; they are all represented by in a single case with common grievance.
Similar to the joinder of parties where the parties instead of suing their cases differently, they
are joined in a single suit to avoid multiplicity of cases.

Again both save the purpose of maintaining the confidence of the court, which is to reach a
common decision in such suits of the same facts. This implies that it is in the interests of
justice that decisions of the same court on the cases of same facts should be certain and
consistent.

In both Joinder of parties and Representative suit, the doctrine of Res Judicata applies. This is
the doctrine20 which means that no court shall try a suit whose subject matter is substantially
and directly the same as the subject matter which was tried in another suit. No case which has
been instituted either in Joinder of parties or in representative suit can be re-instituted after

In considering whether the representative action is maintainable you have to consider what is common
to the class and not what differentiate the cases of individual members… for the sake of convenience, it
was a right given to a common interest and common grievance…
19
In the case of MARK&CO LTD V KNIGHT S.J.CO LTD[1910]2KB 1021 the court said that there are
three requirements which the court must be satisfied with and those are; all members of the alleged class in a
representative suit must have a common interest; all members must have the common grievance; and the relief
to be given in such a suit must be beneficial to all.
20
It is provided under Section 9 of the Civil Procedure Code. And it was discussed its elements in the case of
KARSAN V BROGHA [1953]20EACA 74.
having been determined by a competent court which has pronounced the decision thereof.
Parties to the suit have to take that as a decision given by a competent court.

2.2: Differences between Joinder of parties and Representative parties.

The two concepts have some aspects of differences. These can be discussed as follows herein
below;

That in Joinder of parties a claim and relief from each of the party may be different
depending on their causes of action even though such claims have arisen out of the same act
or transaction or series of acts or transactions while on the other side in Representative suit,
claim and relief shall be the same because the parties will be having common interests and
common grievance in a suit.

Again in Joinder of parties judgment pronounced may bind in different ways some of the
parties depending on in whose judgment is given in favour in each cause of action while in
Representative suit the judgment bind the parties in the same manner. This is because in a
Joinder of parties the parties though having claims arising out of the same act or transaction
or series of acts or transactions, yet the judgment will vary depending on the claim of each
party on its cause of action, while in the Representative suit, all the parties will be having
common interests and common grievance and hence judgment pronounced will be binding
the same way to all.

Also in Joinder of parties causes of action may be more than one but having occurred in the
same act or transaction or series of acts or transactions but in Representative suit, there must
be common interests and common grievance on all the parties represented in a suit.

In recording the names, for Joinder of parties all the names will appear due to the fact that
these parties will be having various causes of action which have arisen out of the same act or
transaction while in Representative suit, the one who is appointed to represent others is the
one whose name will appear in records even though the judgment passed will bind all the
other parties represented.

Further, in Joinder of parties any party can argue and prosecute or defend his case while in
Representative suit only a representing party can argue and prosecute a case. This is in the
reason that in Joinder of parties, such parties may be having different causes of action which
have arisen at the same act or transaction but each of them demanding relief of his own while
in Representative suit the parties will be having the same cause of action only that they are
represented by an appointed party to that case.

Representative suit is mainly in respect of plaintiffs only and not defendants while Joinder of
parties is in respect with both plaintiffs and defendants. This is due to the fact that the
practice of the court is that Representative suit is granted at the time of instituting a case
while Joinder of parties may even occur after the institution of a case.
In Joinder of parties different from Representative suit, there is conflict of interests between
the parties so joined in a suit and which sometimes may result into the distortion of one
party’s evidence due to the evidence given by the other party while defending his claim, on
the other side that is not the case in Representative suit since the evidence adduced shall be
directed towards the common interests of the parties and common grievance. In other words,
the plaintiffs will be joining their efforts towards attacking their common enemy as stated by
Jessel, MR in THE COMMISSIONER OF SEWERS OF THE CITY OF LONDON V
GELLATTY21, where he stated;
“All persons having a common right which is invaded by a common enemy although
they may have different rights inter-se are entitled to join in attacking that
common enemy in respect of a common right”.(emphasis is mine)

In Joinder of parties any party can be added or struck out at any time of proceedings22 while
in Representative suit that can not happen. This is as per Order I Rule 10(2) which provides
that the court upon application of either party to the suit or on such terms which may appear
before the court to be just, may order the name of any party improperly joined whether a
plaintiff or defendant, be struck out.

In the Case of YOWANA KAHERE AND OTHERS V BUNYO ESTATE LTD23 eight
plaintiffs were suing a common landlord. Their landlord had given them a notice to quit the
land which they had occupied in different portions in that landlord’s land. They were not
tenants in common. They joined one action some claimed that they had unlawfully evicted,
and their building and crops had been destroyed. Others were still in possession of the land
but claimed that their building and crops had been destroyed. The eight plaintiff sued in one
suit. The issue was whether they had been properly joined.

The court answered that question in a negative way and had this to say;
“It is necessary for joinder of parties that these conditions should be fulfilled that is to
say, that the right to relief alleged to exist in each plaintiff should be in respect of or
arise out of the same transaction and also that there should be the common question of
fact or law in order that the case may be within the rule”.
It follows therefore that, in the above case the parties were found to be improperly joined and
hence struck out.

3.0: CONCLUSION.
To conclude this work it is better to point once again that though the two concepts seem to be
similar in one way or another, on the other side Joinder of parties and Representative suit are
different in terms of the way they operate and their effects thereto. However both are aimed

21
[1876]3Ch.D 610,615.
22
This was discussed in the case of HORWOOD V STATESMAN PUBLISHING CO.LTD(1929)1LTR 59
at 57 where the court stated that;
“…you should include all parties in one action subject to the discretion of the court if that inclusion is
embarrassing to strike out one or more of the parties…”
23
[1959]EA 319
at maintaining the maxim that it is in the interests of the republic that litigation should come
to a speed end.

Qn “During the course of the proceedings in the court various pleadings, summonses,
and affidavits, lists and orders have to be served between the parties. Service is done by
the court through the court process servers or the court may direct the parties to serve
each other.”

Briefly discuss the validity of this assertion in the light of the law and practice relating
to the service of documents.

INTRODUCTION
The object of the civil procedure law is to enable the parties as well as the courts to know
matters, which are in dispute so as to have guidance in determining cases fairly. This object
can only be attained by what is known as service of document. In the context of civil
procedure service of document means a process whereby the other party to the litigation is
served with document of which the other party has either filed to the court or intends to rely
upon during the court proceeding.

In Blacks Law Dictionary,24 service means, the formal delivery of a writ, summons or other
legal process after three attempts, service had not been accomplished also termed as service
of the process. The final delivery of some other legal notice, such as pleadings, be sure that a
certificate of it is attached to the motion.

Process server means a person authorized by the law or by a court to deliver formally process
to a defendant or respondent.25

Again, in the Concise Law Dictionary,26 Service of Process means, the delivery of notice of
any cause or suit being instituted or of any steps being taken therein to the party affected
thereby or having an interest in the subject matter of the suit.

Process server means one who serves in the manner prescribed by law a summons, mandate
or writ issued by court of law.27

RATIONALE FOR SERVICE OF DOCUMENT

The service of document complies with the principle of Natural Justice, that is, Audi alteram
partem. This means, no man should be condemned unheard. For instance, when the plaintiff
has filed a suit before the court of law, it is a mandatory requirement that the defendant

24
Blacks Law Dictionary, 8th Ed, p 1399
25
Ibid p.1170
26
Ramanatha, R., (2004), Concise Law Dictionary, 2nd Ed, p.781
27
Ibid p.
should be informed of the claim raised against him so that he can be afforded a chance to
reply to such claim. Hence there is requirement of him to be served with the claims.

No person should be taken by surprise in court proceeding. Whatever is going on or takes

place in the court the other party should be made aware of it. This help to avoid prejudice to
the party. Thus at each stage of court process if there is any new matter arise, party must be
served with such information informing him of what is going on.

It is a fundamental rule of the law of procedure that a party must have a fair and reasonable
opportunity to represent his case. And for that purpose, he must have a notice of legal
proceedings initiated against him. The service of summons in the defendant is therefore, a
condition precedent to a fair trial. If the summons is not served on the defendant or it does not
give him sufficient time to represent his case effectively, no decree can be passed against
him.

HOW SERVICE OF DOCUMENTS MAY BE EFFECTED

In this work, attempts have been made to show how courts are involved in serving different
documents to the parties. It must be noted that, these are only few of the documents which are
served by the courts and due to time constraint we could not exhaust each and every court
document.

Pleadings:
Order VI, Rule 1, define pleading to mean a plaint or written statement of defence (including
a written statement of defence filed by a third party) and such other subsequent pleading as
may be prosecuted in accordance with Rule 13 of Order VIII. In pleading the court document
involved are plaint, written statement of defence and counter claim.

In any civil litigation, a suit is instituted by presentation of a plaint to the court.28 The law
requires that the plaintiff at the time of filing a suit should furnish the court with sufficient
copies of the plaint necessary to enable the court to serve the same to defendant or
defendants29 or other parties to the suit. After proper presentation of a plaint by the plaintiff
to the court and a case assigned to a specific judge or magistrate as the case may be, the court
will order the issue of summons accompanied with a copy of a plaint to be served to the
defendant through process server or the plaintiff or his agent requiring him to file a written
statement of defence within 21 days from the date of receiving the summons.30 These
documents may be served together with summons.

Summons:
There are two types of summons. That is, summons to appear and summons to file written
statement of defence. Summons to appear informs the defendant that the plaintiff has filed a
suit against him and calls upon the defendant to appear and answer the claim on the date, time
28
Order IV Rule 1 of the CPC
29
Order VI Rule 2(1) (a) (b) of the CPC
30
Ibid Rule 1 Para (b)
and place specified on it. On such summons, he will be required to produce all documents
and evidence he intends to rely in support of his case.31
Summons can be served in the following manners:

By personal service
This is done by delivering and tendering a copy of summons dully signed and sealed to
defendant or each of them, if they are more than one, as the case may be.32 A copy of the
summons must be delivered to the defendant together with the copy of the plaint and other
document after the defendant or agent has been made to sign in an appropriate place on the
summons as evidence that he has been duly served. The process server (amin) will then return
the original copy of the summons to the court, and will swear to an affidavit stating how or
when he dully effected the service on the defendant or his agent. Such affidavit constitutes
sufficient evidence of service.33

Service on agent or manager

In case the defendant has empowered an agent to accept service or where defendant is not
residing in the local limit of the court, the service shall be sufficient on a manager or agent
who at the time of service personally carried on business or worked for such defendant within
such limits.34

Service on adult member of the family

When the defendant is absent from his residence at the time of service of the summons and
there is no possibility of his presence and he has no agent, service may be made on an adult
member of his family but a servant is not regarded as a member of his family. 35

Affixation
After the process server’s efforts of finding defendant has failed and he is satisfied after all
due and reasonable diligence that he could not find the defendant, such process server must
affix a copy of summons on the outer door or some conspicuous part of the house in which
the defendant ordinarily resides or carries on business for gain. Having done so, the process
server must within 14 days of affixing such copy return the original to the court stating that
he has so affixed the copy, the circumstances under which he did so, and the name and
address of the person by whom the house was identified and whose presence the copy shall
be affixed.

Substituted service
Where the court is satisfied that there is reason to believe that the defendant is keeping out of
the way for the purpose of avoiding service or that for any other reason summons can not be

31
Order V Rule 1 and 4 of the CPC
32
Order V Rule 12
33
Order V Rule 16 and Rule 18
34
Order V Rule 13
35
Order V Rule 15
served on him by the ordinary way, the court will order that, the summons be served by
affixing a copy of it in some conspicuous place in the notice board of the court house and also
on some conspicuous part of the house (if any) in which the defendant is known to have last
resided or carried on business or personally worked for gain, or in such other manner as the
court thinks fit. This is called substituted service, and is as effectual as if it has been made on
the defendant personally. In such a case, the court must fix such time for the appearance of
the defendant as the case may require.36 The process server will swear an affidavit that he
affixed the summons in the place as directed by the court.

Moreover the court may order service by an advertisement in the newspaper, the newspaper
shall be a daily newspaper circulating in the locality in which the defendant is lastly known to
have actually and voluntarily resided, carried on business or personally worked for gain.

Service by Post
If the court is satisfied that, to require a summons to served on a defendant in the ordinary
manner or by substituted service may cause undue delay and that the summons may more
conveniently be served by post, the court may order that the summons be served by post37.
When the court, or the defendant receives the acknowledgment purporting to be signed by the
defendant or his agent or his agent refused to take delivery of summons when tendered to
him, the court issuing the summons shall declare that the summons had been duly served on
the defendant. The same principle applies in a case where the summons was properly
addressed, prepared and duly sent by registered post, acknowledgment due; and
acknowledgement is lost or not received by the court within 30 days from the date of issue of
the summons. When the summons sent by registered post is returned with an endorsement
“refused”, the burden is on the defendant to prove that the endorsement is false38

If the court is satisfied that the service is effected by post and duly served to the defendant
such service will be as effectual as if the summons had been served on the defendant
personally.39

In other jurisdiction like India the service of summons can be effected through an electronic
media, such as fax or such other means the court may approve.40

Service Where Defendant is confined in Prison

If the defendant is confined in a prison, the original and a copy of the summons shall be
delivered or sent to the officer in charge of the prison for service on the defendant.41

36
Order V Rule 20
37
Ibid O. V, r 30
38
C.K. Takwan (1997) Civil Procedure, 4th, p 150 and also Order 21 of CPC
39
Ibid O. V, r 21 (2)
40
Acharya, N.K., (2004), Guide to CPC, 1st Ed, p.76
41
O.V, r.24
Service of the defendant Resides in the jurisdiction of another court and where he is
outside Tanzania
Where the defendant resides within the jurisdiction of another court or in another state, the
summons may be send to the court where he resides42. Such court will serve summons on the
defendant. Moreover, where the defendant reside in a foreign country, the service of
summons may be effected through the political agent there or a court established there with
authority to serve summons43

Service by Plaintiff or Agent

A plaintiff or his agent may himself serve summons on a defendant. In such an event service
may be deemed to have been duly effected if an affidavit is filed by the person who effected
the service stating that he personally served the summons on the defendant, that the defendant
was personally known to him or by exhibiting the summons or a copy of it endorsed by the
defendant with an acknowledgement of service or giving reasons why such acknowledgement
could not be obtained.44

Written Statement of Defence:

This is the document filed by the defendant or his agent or advocate to the court replying the
allegation raised by the plaintiff in his plaint of which he was required to reply within 21
days. If the written statement of defence is not filed within the specified time, the defendant
has no right to file it later on without the permission of the court.45 The plaintiff will get the
copy of written statement of defence on the date of mention.

OTHER TYPES OF DOCUMENTS AND ORDERS

Other types of documents and orders, which can be served through the court process servers
includes; judgments, interim orders, decree, ruling, drawn order, chamber summons
accompanied with an affidavit etc

There are instances where the court may direct the party or parties to serve documents to each
other. When this is done, then the other party who is receiving the document has to sign the
original document as evidence that he has received the same. Example of this documents are
like written submission, reply to the written submission and rejoinder to the written
submission. Sometimes the party may serve the other party documents during the hearing.
For instance the documents which the party wants to rely as evidence but did not annex it
when filing the plaint.

42
O.V, r.22 & 23
43
O.V, r 29 & 28
44
O.V, r. 31
45
O.VIII, r. 14
CONCLUSION
It can be said that, there are many documents, which can be applied to the court by the parties
in the whole proceedings of the suit, but those which are mentioned above are the most
commonly used. With regards to the manner of servicing those documents, it is crucial to
note that in many instances the parties themselves can engage in the services of the
documents to the other party, this may happen when one cannot afford to furnish some
amount to the court so that his service can be effected by the court process server.

Qn; The failure to frame issues amounts to procedure irregularity and not illegality. In
the light of this contention, outline the practical importance of framing issues and
consequences of failure to frame issues.

1.0 INTRODUCTION.

In every civil case, it is a common practice that issues are to be framed after the parties have
presented their pleadings. The function of pleading is to ensure that the questions which are
in controversy between the parties should be clearly ascertained so that each party is aware of
what the other party contends and also enables the court to know what questions it has to
decide in the particular suit46. In the case of JANMOHAMED UMERDIN V. HUSSEIN
AMARSHI AND OTHERS47 it was stated that the framing of issues is the rule that governs
the conduct of a civil proceeding which neither the court nor counsel is entitled to leave out
of account.

The duty of raising the issues rests, under the Civil Procedure Code, on the court. It should
itself go through the pleadings and not depend merely on the draft issues filled by the
parties48. But though the duty to frame issues is cast on the court, the responsibility for
framing them should be shared by the pleaders appearing for either of the parties49.

Issues are those questions on which the parties are not agreed and which the court is called
upon to decide. Issues can also be defined as a point in question at the conclusion of the
pleading between the contending parties in an action.

Issues are to be frame in respect only of those facts which have been alleged by one party and
either denied or not admitted by the other party50, that is to say, a material proposition of fact
or law is asserted or affirmed by one party but denied by the other51. Each material
proposition affirmed by one party and denied by the other shall form the subject of a distinct
issue52.

46
B.D. Chipeta, (2002), Civil Procedure in Tanzania, p.166
47
(1953) 20 E.A.C.A. 41
48
RUK-UL-MULK SYED ABDUL WAJID V. R VISWANATHAN AIR 1950 MIS 33 (FB)
49
BHASKAR V. NARANDAS (1950) 608
50
FATEH MUHAMMAD V. IMAM-UD-DIN (1920) 2 LAH LJ 188.
51
the First Schedule to the Civil Procedure Code, 1966, Order XIV Rule 1(1) when read together with Order
XIV Rule 1(2)
52
Ibid, Order XIV Rule1(3)
The issues can be of two kinds or types, that is, they may be issues of law or issues of fact.
The issues of fact are those which their existence depend on evidence while issues of law on
the other hand are legal conclusions derived at after application of the law to the facts which
have been proved.

There are some circumstances in which court may be confronted with issues of both fact and
law. Where the court is of the opinion that the suit or any part of it may be disposed of on the
issues of law only, the court must try those issues first. In which case, it may, if it thinks fit,
postpone the recording of the issues of fact until after it has disposed of those issues of law.
In the case of SINGIDA REGIONAL TRADING COMPANY V. TANZANIA POST
AND TELECOMMUNICATION CORPORATION53 the court held inter alia that since
the issue of law went to the root of the suit, the court had first to determine that issue of law.

If the court comes to the conclusion that the decision on the preliminary issues of law will
dispose of the entire suit, it will postpone the issues of fact and decide on the issues of law,
and where it turns out that issues of law suffice the disposition of the entire case then the
issues of fact will be left out.

2.0 Framing of Issues.

The assertion that failure to frame issues amounts to procedure irregularity and not illegality
is true. This point can be substantiated by the case of NORMAN V. OVERSEAS MOTOR
TRANSPORT (TANGANYIKA LTD)54 which stated that the failure to frame issues is an
irregularity which is not fatal so long as the parties at the trial knew what is the real question
between them, and evidence is taken on it and the court considers it.

2.1 Importance of framing issues.

The framing of issues is a very important step because the outcome of the case will largely
depend on issues that have been framed. The following paragraphs show why courts should
frame issues and the importance of doing so.

The issues guide the parties on how to go about in adducing evidence. A party will not be
allowed to adduce evidence which does not go on proving or disapproving the issues framed.
Such evidence will be irrelevant and hence inadmissible. Therefore, the framing of issues is
very important because it will help courts to save time and costs for hearing matters which
are irrelevant to the case.

53
[1979] LRT n. 11
54
[1959] E.A 131
 Apart from guiding the parties on how to go about in adducing evidence, the framing of
issues helps the court to address its mind to specific issues, that is, confines the court to
specific areas in which the issues have been framed. This was the view of the case of
NKALUBO V. KABIRIGE55. However, there is an exception to this general rule in case the
parties knew of the issues but they were not pleaded.

The other importance of framing issues relates to appeals. If the case goes to appeal, the
appellate court has to confine itself to issues framed in the trial court. The court of appeal
cannot determine issues which were not framed during the trial but it shall deal with issues of
law though they were not framed or were abandoned during the trial56.

2.2 Consequences of failure to frame issues.

The failure or omission of framing issues may have two consequences. At the first place, it
may be regarded as procedural irregularity which is not necessarily fatal to the proceedings57;
and the other hand if the court is of the opinion that the failure or omission of framing issues
prejudices the parties, such omission will be fatal58.

The court will not hold that the omission or failure to frame issues was prejudicial to the
parties if it is of the opinion that despite the fact that no issues were framed, the parties knew
what was at issue and produce evidence in what they knew was at issue. This was also stated
in AGRO INDUSTRIES LTD V. ATTORNEY GENERAL59 where it was held that;
“when a trial court allows parties to address it on any issues, the court must
conclusively determine those issues, notwithstanding that the issues were not in the
pleadings”.

Omission or failure to frame issues shall be regarded as prejudicial to the parties where it
results into parties failing to direct evidence to the issues. In such a case if any injustice
occurs it is incurable except by quashing the decision of the court. This point was discussed
in the case of JOSEPH MARCO V. PASCAL RWYEMAMU60.

3.0 Conclusion.
Basing on what we have discussed above, we are of the opinion that the framing of issues is
very important and that the failure to do the same may either be illegality or procedure

55
[1973] E.A 103 at 105
56
SHAIKH MAKBUL V. UNION OF INDIA AIR 1960 Ori 146.
57
MUHAMMAD YUSUF V. MUHAMMAD YUSUF AIR 1958 MAD 527
58
WALI SINGH V. SOHAN SINGH AIR 1997 CaL 386
59
[1994] TLR 43 (CA).
60
[1977]LRT 59
irregularity depending on the facts of each case. Where such omission or failure to frame
issue leads to injustice, then the court will quash the decision made basing on such omission.

Qn: The basic principle is that so far as possible all evidence in the suit should be taken
viva voce before the trial court. Anyone who seeks to have the evidence taken in any
other way is seeking an indulgence of the court and must show good reasons to justify
his application.

Discuss the assertion above.

1.0 INTRODUCTION

Viva voce is a Latin word that stands for ‘with living voice’. ‘By word of mouth or
orally’. In reference to the examination of witnesses, the term means that oral rather
than written testimony is to be taken before the court of law.61

Viva voce, being an oral evidence, is well defined under section 3 (1) of Tanzania
Evidence Act, 1967 (hereinafter referred to as TEA) to mean all statements, which the
court permits or requires to be made before it by witnesses, in relation to matters of
fact under inquiry.

2.0 DISCUSSION ON THE RULE REGARDING VIVA VOCE (ORAL

EVIDENCE)

2.1 The General Rule regarding to Viva Voce:

After having seen the definition of viva voce (oral evidence) hereinafter is the
discussion of the rule. This rule is governed by the provisions of Order XV111 of the
Civil Procedure Code, 1966 (hereinafter referred to as CPC). The said Order XV111
deals with the hearing of suits and examination of witnesses. This Order enacts the
principle of orality of proceedings as opposed to the principle of documentation which
applies in pleadings. Rule 2 (1) of the same Order states that:

“On the day fixed for the hearing of the suit or on any other day to which the hearing
is adjourned, the party having the right to begin shall state his case and produce his
evidence in support of issues which he is bound to prove.”

The other party shall then state his case and produce his evidence, if any, and may
then address the court generally on the whole case, as provided for under rule 2 (2) of
the same Order.

61
Garner B. A., (2004), Black’s Law Dictionary, (8thed), Thomson West, U.S.A
 The basic principle regarding viva voce is well stated in the case of Premchand
Raichand Ltd & Another v. Qurray Services of East Africa Ltd. & Others62 that:
“so far as possible all evidence in the suit should be taken viva voce before the
trial court. Any one who seeks to have evidence taken in any other way is
seeking an indulgence of the court and must show good reasons to justify his
application.” The point of discussion here is on the issue of what amounts to
good reason. In answering the above issue we are of the view that on the side
of the party, there may be personal reasons, such as ill-health or inability to
obtain a visa or the applicant has to show that the evidence is necessary and
the witness can not be procured to appear before the court of law so as to
testify.

The above principle was adopted in the case of Leopold Wolford (Zambia) Ltd V A.H.
Hunter63 The same position of the law is complimented by section 62 (1) of TEA.

2.2 Exception to the general rule:

After having seen the general rule regarding to viva voce, here below is the exception
to the rule that not always the evidence should be adduced orally. There are
circumstances which the evidence can be adduce through written way or any other
way as it deem fit. The following are the circumstances under which the evidence can
be adduced in other way other than viva voce.

The first circumstance is that, there is a time the court accepts evidence by way of an
affidavit as an exception to general rule. An affidavit is a document which contains
sworn statements of facts signed by the deponent before the commissioner for oaths
which can be used as evidence in proceeding before court.

However, as stated in the case of Standard Goods Corporation Ltd V Harakhchand

Nathu and Co.64 that affidavit based on information must disclose the source of
information, this is not merely matter of form, but goes to the essential value of the
affidavit. It may have been sworn in all sincerity and the deponent may have been
advised as he says, but since the source of information may have been unreliable, the
affidavit can have no evidential value.

The second circumstance under which the court accepts evidence other than viva voce
is on the point of commission as provided for under order 26 of The Civil Procedure
Code65. Commission can be defined as an authority to exercise a power or a direction
to perform a duty; for example, a commission of a justice of the peace66. Under order
26 rule 1 of the CPC the court may examine witnesses who can not appear before the

62
[1969] E.A. 514
63
[1973] L.R.T 59
64
[1950] 17 E.A.C.A. 99
65
. Act No. 49 of 1966
66
. Oxford Law Dictionary, New Edn. P 83
 court. Under this order the witnesses are of two types, (a) those who are within the
jurisdiction of the court but can not be compelled as they are protected by law for
instance Diplomats. To know who is protected and who is not, one has to look at the
law. (b) those who are outside of the jurisdiction of the court.

Application for commission may be made either by courts on motion or either of the
parties to move it. The application must be supported by an affidavit which will
contain facts which necessitate commission powers of court as provided for under
order 26 rule 4 of the CPC (supra). The court has power to issue a commission for a
witness who is beyond territorial limits of its jurisdiction. It may also order
commission of a witness who is about to leave its territorial limits. A person to whom
a commission is issued is known as commissioner who has the power to examine
witnesses, record the evidence and return the records to the court which issued the
commission and where it is possible, the witness will be given the day and time of
examination and may be given a right to cross examination.

However, where a party did not have an opportunity to cross examine the opponent
during the commission, such evidence can not be adduced in court unless the parties
are personally in court.

Another circumstance which the court accept the evidence adduced in other way than
viva voce is through dying declaration as stipulated under section 34(a) of TEA, for
the statement made under dying declaration to be admissible two conditions must
exist, these are: (a) the person who made the declaration is really dead and the second
one is that the alleged declaration must be original and such statement must refer the
cause of death or the circumstances of his death or the transaction leading to his death.

3.0 ADVANTAGES AND DISADVANTAGES OF VIVA VOCE (ORAL

EVIDENCE)
In respect of the above discussion, viva voce (oral evidence), being direct evidence
has its advantages and disadvantages as explained hereinafter:

3.1 Advantages
Viva voce (oral evidence) complies with the ‘Best Evidence Rule’ which
requires that oral evidence should be adduced direct; that is to say, a witness
who by the words of mouth appears before the court of law to testify as
provided for under section 62 (1) of TEA.

Secondly, viva voce (oral evidence) gives an opportunity to the opponent party
to cross-examine a witness who has testified so as to test his demeanor.

Thirdly, viva voce (oral evidence), being a direct evidence, reduces the risk or
tempering with the evidence.
 Fourthly, viva voce (oral evidence) enables the court to ask the witness for
more clarification on controversial issues since there is eye to eye contact.

3.2 Disadvantages
Viva voce (oral evidence) has relative costs due to the fact that it requires
personal attendance of witnesses before the court of law; so courts and parties
incur costs to procure attendance of those witnesses.

Another disadvantage of viva voce (oral evidence) is that, it tends to delay

proceedings because there are some witnesses who are not easily procured due
to unavoidable circumstances, such as illness, diplomatic immunity, death, etc,
hence justice delayed is justice denied.

4.0 CONCLUSION:
By the way of conclusion and for the submissions made thereof, this piece of writing
has the following to say, viva voce being an oral evidence is regarded by courts of law
to be the best evidence to be tendered before it regardless its exceptions and weakness
(disadvantages) as explained in part 2.2 and 3.2 in this paper.

Qn: You are an advocate for the defendant in a suit in the High Court of Tanzania
Land Division at Dar es Salaam for the recovery of possession of land. Discuss what
course or courses of action you would take in the following alternatives.

a) The plaintiff has obtained an ex-parte temporary injunction to restrain the defendant from
entering or remaining the land in dispute.
b) The plaintiff’s defense to counter claim contain solely evasive denials.
c) On the date fixed for mediation the plaintiff and his advocate are absent.
d) On the date fixed for hearing of the suit the defendant is admitted at the Muhimbili
Orthopaedic Institute.

OUTLINE

1.0 INTRODUCTION
2.0 MAIN BODY:
Discussion on the issues
3.0 CONCLUSION
Bibliography
1.0 INTRODUCTION

The question poses different issues to be dealt with by us, as the advocates of the defendant.
The following are the summary of the issues to be dealt with in the course of facilitating the
defendant to recover the possession of the land in dispute. These issues are extracted from the
instances given in the question.

v The action to be taken in the course of advising the defendant where there is ex-parte
temporary injunction granted by the court against him.
v The course to be taken as the advocates of the defendant where the plaintiff’s defence
to counter claim contain solely evasive denials.
v The course of action to be taken where in mediation both the advocate and the
plaintiff are absent.
v The course to be taken as the advocates of the defendant where at the time of hearing
the defendant was admitted to the Hospital.

2.0 MAIN BODY:

Discussion on the issues

To start with the first issue where there is ex-parte temporary injunction issued against the
defendant, it is better to introduce the key concepts in the issue. The concept of temporary
injunction means a judicial process whereby a party is required to do or to refrain from doing
any particular act.67 Temporary injunction is thus an injunction issued during the pendency of
proceeding. Mulla states that, an injunction is temporary, for it endures only until the suit is
disposed of or until further orders of the court.68

From the given question as advocates for the defendant before advancing to the course to be
taken as far as ex-parte temporary injunction issued against the defendant, it is better to put
into the contemplation on the requirements for an order granting temporary injunction.
Pursuant to Order XXXVII of the Civil Procedure Code Cap 33 herein below referred as the
CPC, under Rule 1 the conditions are set up on what to be considered when granting
temporary injunction. From the provisions it is stated that Order granting temporary
injunction will issue if the property in dispute in a suit is in danger of being wasted, damaged
or alienated by any party to the suit of or suffering loss of value by reasons of its continued
us. Likewise Order XXXVII Rule 1 advances by stating that where the defendant threatens or
intends to remove or dispose or his property with a view to defraud his creditors the court
may grant temporary injunction to restrain such act.

The law further is to the effects that before granting the temporary injunction the court is duty
bound to direct notice of application of the same (injunction) to the opposite party with an
exception that if such notice is given will cause undue delay and that the object of granting
injunction will be defeated then such notice will not be given to the opposite side69. Therefore
where the injunction Order is granted by the court without notice to the opposite party then
that will be ex-parte temporary injunction.

67
C.T. Takwani (2004) Civil Procedure p 229
68
V.K.Gupta (2004 )Mulla Code of Civil Procedure p1584
69
Order XXXVII Rule 4 of the CPC.
Though it is necessary and mandatory for the defendant to be given a notice in regard to
injunction, the court retains discretionary powers to grant ex-parte temporary injunction. The
plaintiff must show cause why notice should be dispensed with, such reason can be given
viva voce or by court’s instance. This is supported by the case of IBRAHIM V NGAIZA70
where the judge stated that the granting of temporary injunction is a matter of discretion of
the court and this discretion can be said to have been judiciously exercised if the court
appreciated the facts and applied those facts to the principle governing issuance of temporary
injunction. One of the principles is that the court should be satisfied that there is the
substantial issue that is triable between the parties and that there is the likelihood that the
applicant might be entitled to relief and whether the status quo should not be preserved until
the dispute is investigated.71

In the application for the temporary injunction it is the duty of the applicant to show that the
waste that is going to be occasioned is not an ameliorating waste that it is going to injure the
property and it is substantial. The case of RICHARD WHEELER V. CLACSTON
ALIMAN AND A.C. DOWDEN72 emphasised on the principle by stating that the waste
should not be ameliorating nor trivial, it must be waste of an injurious character. It must be
waste of not only of injurious character but also of substantially injurious character and if
either the waste be real ameliorating waste that is a proceeding which result in benefit not
injury. Then temporary injunction should be granted.

Therefore if the above requirements are not fulfilled then the Order granting injunction can be
challenged. From the given question, it is said that the defendant has been restrained from
entering or remaining in the land in question, and that the court granted an ex-parte
injunction. However with effects to the scenario there has been no reason given which fall in
the exception given under Order XXXVII Rule 4 of the CPC which is to the effects that the
defendant intended to cause destruction on the land in any way. Likewise the court decision
in favour of the plaintiff as far as the ex – parte temporary injunction in the discussed cases
revealed that even if it is alleged that there is the likelihood of waste of the property of the
plaintiff; that waste must be substantial not ameliorating.
Due to the above facts therefore as the advocates for the defendants the only way to serve the
situation is to resort to Order XXXVII Rule 5 of the CPC which is to the effect that;

“Any Order for an injunction may be discharged, or varied, or set aside by the court
on application made thereto by any party dissatisfied with such Order”.

With the above provision of the law it is seen that the law is very general. The reliance is on
the application to set aside the temporary injunction, but in regard to the scenario and the
position the defendant there was the issuance of the ex–parte temporary injunction.

70
(1971) HCD 249
71
The same view is stated in the case of ALLOYS ANTHONY DOWE V ALLY JUYAWATU (1969) HCD
268
72
(1978) 3A.C 709 at 724.
This drives us, as the advocates for the defendant to the relevant provision relating setting
aside of the Order of ex – parte temporary injunction; the provision which is specific in that
respect for our case is the application to set aside ex- parte decree73 as provided under Order
IX Rule 13 of the CPC. In setting a decree or a judgement we shall serve notice to the
plaintiff to that regard as the requirement enshrined under Order IX Rule 14 of the CPC. The
application will be made as per Order XLIII Rule 2 of the CPC.

In the second part of the question where the plaintiff’s reply to the counter claim contains
evasive denials it is better as the advocates for the defendant to start by understanding the
concept of counter claim. Counter claim is provided under Order VIII of the CPC, however
the code does not define the concept. A counter claim may be defined as a claim made by the
defendant in a suit against the plaintiff it means the claim independent of, and separable from,
the plaintiff’s claim which can be enforced by a cross action.74

A counter claim is a claim brought by the defendant in civil proceedings against plaintiff on a
cause of action which arose before the presentation of the written statement of the defence75.
A counter claim is treated as cross suit and is governed by the rules of pleading as a plaint as
laid down in Order VII of the CPC.

From the question given we have been told that, the plaintiffs defence to counter claim
contains solely evasive denials. It should be known that under Order VIII Rule 11(2) of the
CPC the rule is to the effect that rules relating to a written statement of defence by the
defendant shall apply to a reply by the plaintiff or a person joined as a party against who
counter claim is made76. Thus as advocates for the defendant we shall deal with the
provisions relating to written statement of defence.

In regard to a reply to the counter claim as stipulated under Order IX Rule 3, a plaintiff is
supposed to deny specifically each allegation of fact which he does not admit the truth. It is
further provided that in every allegation if there is no specific denial of allegation of fact in a
plaint (counter claim) then such facts will be taken as to have been admitted except where a
person is under disability77.

73
Decree is defined under section 3 of the CPC to mean formal expression of an adjudication which, so far as
regards the court expressing it conclusively determines the right of the parties with regard to all or any of the
matters in controversy in the suit and may be either preliminary of final and shall be deemed to include the
rejection of a plaint in the determination of any question within section 38 or section 89 but shall not include
a) an adjudication which an appeal lies as an appeal from an Order or b) any Order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly
preliminary and partly final. (Underscoring is ours)
74
Takwani, Op.cit p 184 referring Concise Oxford Dictionary 1995 p 306
75
OrderVIII Rule 9 of the CPC
76
Order VIII Rule 11(2)
77
Order VIII Rule 5 ibid
From the question given we have been told that the plaintiff’s defence to counter claim
contains solely evasive denials. Now as provided under Order VIII Rule 4 of the CPC the law
is to the effect that the denials from opposite party do not include a vague, routine denial and
where a defendant denies an allegation of facts in the plaint, he must not do it evasively, but
answers the point of substance. It was held in the case of THORPE V HOLDWORTH78
that a defendant is bound to deny that any agreement or any terms of arrangement were ever
come to, if that is what he means; if he does not mean that, he should say that there were no
terms of arrangement come to, except the following terms, and then state what the terms
were; otherwise there is no specific denied at all.

From the discussion above it can be said that when the plaintiff makes evasive denials of a
claim made against him it will be taken that he has admitted the facts of the counter claim. As
advocates of the defendant we will bring it to the knowledge of the court that the claims
against the plaintiff have been admitted by the plaintiff. Thus, the provision of Order VIII
Rule 4 of the CPC will apply.

In regard to the third question which is to the effect that on the date fixed for mediation the
plaintiff and his advocate are absent. As advocate for he defendant we shall resort to Order
VIIIA Rule 5 of the CPC which is to the effect that;

“Where a party to a case or the party’s recognised agent or advocate fails without
good cause …..to appear at a settlement conference … the court shall make such
Orders against the defaulting party, agent or advocate as it deems fit, including an
Order for costs, unless there are exceptional circumstances for not making such
Orders.”

From this provision as advocates for the defendant we are of the view that the plaintiff has no
reasons for non appearance and that the court should make Order such as an Order for the
costs incurred by the defendant in conduct of the case and also the Orders to the effect that
the suit in mediation should be brought to an end in defendants favour.

The fourth question is on the fact that at the date fixed for hearing the defendant is admitted
to the Muhimbili Orthopaedic Institute. The legal system in Tanzania follows an adversarial
system of dispute settlement. This system emphasises that, parties are the masters of the
procedures in a case because they are presumed to know their case better than any other
person. The court remains as an umpire to facilitate the settlement of the dispute. This makes
the presence/appearance of parties during the hearing of the case to be essential so as the case
can proceed smoothly. In regard to civil matters as provided under Order VIII Rule 15 of the
CPC when all the pleadings have been presented before the court, then, the court has to fix a
date for hearing of the case.

78
(1876) 3 CD637
During the hearing as a general Rule parties are suppose to appear in court either by personal
appearance, or through an advocate or through a recognise agent. To ensure that the parties
appear before the court then summons to appear must be issued to the respective parties to the
suit this is provided for under Order V of the CPC. For the case with the defendant the court
at the time of hearing if there is non appearance of the defendant, the court is supposed to
inquire as to whether the summons was duly served according to order V and may proceed ex
–parte.79

The summons would have indicated that in case of non appearance the court would proceed
ex – parte. As advocates for the defendant at this instance where there has been non
appearance of the defendant and there is ex-parte hearing therein, we have two channels to
employ;
The first course is pursuant to order IX rule 7 of the CPC that if there was the adjournment of
the hearing of the suit ex-parte by the court and the defendant appears and assigns good
cause of his previous non appearance the defendant will be heard in answer to the suit as if he
had appeared on the day fixed for his appearance subject to the direction by the court to pay
costs or otherwise as the court may decide. Now the defendant being admitted to hospital is
the good cause for his previous non appearance thus the court has to take it into consideration
by allowing the defendant to proceed with the suit.

In case the ex-parte hearing was concluded the judgement pronounced will be ex-parte
judgement. This was defined in the case of MOHI TEXTILE MILLS V DE VOEST80 to
mean a judgement given when there is no appearance by the party against whom it is given.
The definition which was given in this case however is subject to qualifications as it covers
the plaintiff. The case further defines the phrase ‘a suit called for hearing’ and stated that the
suit is called for hearing when it is to be heard for the first time. Therefore the judgement
under Order IX rule 13 even if the defendant does not appear is not ex-parte judgement if the
defendant appeared at the first hearing.

Back to our situation the defendant was admitted to the hospital, the law is clear that an ex-
parte judgement can be set aside if there are sufficient reasons for doing so. For instance in
the case of OSANGA V. NABUNGO81 it was held that ignorance of crucial procedure was
sufficient ground to set the judgement aside.

However the rule regarding the appearance of parties is to the effect that, appearance means
attendance in person or by an advocate in court on the date stated in the summons which is
also the date for hearing of the suit. Once a defendant is present either in person or by
advocate when the case is called up that is sufficient appearance.82 In the case of appearance
by an advocate, it has been said that a pleader (advocate) must have been duly instructed and
able to answer all material questions relating to the suit otherwise the party can not be said to

79
B.D.Chipeta, (2002) Civil Procedure in Tanzania: A Student’s Manual, p 126
80
[1975] LRT No 17
81
(1965) E.A384
82
B.D.Chipeta op cit p. 121 -122. see also Gupta op cit p 919 - 920
appear by pleader. At this instance the above stated provisions relating to setting aside of the
ex-parte judgement will come into operation.

On the other side as advocates for the defendant, if the case is that we have received all
instructions regarding the suit then, though the defendant is admitted to the said hospital, the
law is that the presence of an advocate in a court amounts to appearance by a party
(Defendant) and thus no consequences for non appearance can follow afterwards. As
advocate we can ask the court to adjourn the case in case it is important for him to make a
personal appearance before the court.

However the rule which allows the advocates to appear for the defendant and ask for
adjournment is not absolute. It has been held in the case of MUKERJEE V MUKERJEE83
that the fact that an advocate appeared on the first hearing to seek an adjournment was held to
be not sufficient ground to set aside an ex-parte decree if after refusing an adjournment he
withdraws from the case and thus the defendant is left unpresented and hence no appearing84.
The same principle is reiterated in the cases of JESSE KIMANI V MC CONNEL &
ANOTHER85and MOSHI TEXTILE’S Case.

From the above observations as advocates for the defendants we are of the view that the non
appearance by the defendant before the court as a result of sickness is a good reason to set-
aside the ex-parte judgement if such will be issued by the court on assumption that we had no
enough instruction from the defendant. On the other hand assuming that we had received
instruction from the defendant the rules governing appearance by advocate will come into
operation accordingly.

CONCLUSION
Therefore from the discussion above, as advocates of the defendant on a suit in the high court
involving the recovery of the land by the defendant, we are of the view that such recovery can
be achieved by following procedures and laws, depending on the circumstance given in the
question. That, the courses of action to be taken will depend on the respective instance at a
time and also on the circumstances of each particular case. In our opinion the knowledge of
law and procedure is a tool towards the attainment of justice.

Qn: Explain the scope of the powers of the civil court:

a) To examine the witnesses called by the parties.
b) To summon and examine witnesses on its own accord.

1. O INTRODUCTION.

83
(1907) 34
84
Gupta loc cit
85
(1966) EA 547
In our introductory remark it is our duty to define the word examination as used under the
law; this is simply because the word witness is common to the members of the class.
Examination means the questioning of a witness on oath or affirmation, and in court of law
witness is subject to examination in chief cross-examination and re examination86.

When the suit comes up for hearing, the party having the right to begin will state his case and
produce his evidence in support of the issues, which he is bound to prove. The order in which
parties will be required to produce evidence depends largely on the question as to who has the
burden of proving a particular issue. In general, the plaintiff, being the person who asserts
facts on which his cause or causes of action are founded, has the right to begin, under the
civil law the right to begin the case is vested to the plaintiff unless the defendant admits the
facts alleged by the Plaintiff as per O XVIII r 1 of the Civil Procedure Code (herein after is
referred to as CPC).

The duty of adducing evidence whether oral or documentary before the court is upon the
parties and, or their witnesses. Therefore when the court set the day of hearing the parties
may obtain, on application to the court or to such officer of the court appointed on this behalf,
summonses to a person whose attendance is required either to give evidence or to produce
documents, as per O XVI r 1 of CPC, also under Order XVI rule 2 (1) of CPC provide that;

“The party applying for a summons shall, before the summons

is granted and within a period to be fixed, pay into court such a
sum of money as appears to the court to be sufficient to defray
the traveling and other expenses of the person summoned in
passing to and from the court in which he is required to attend,
and for one day’s attendance.”

This Order shall be read together with sections 23, 24 and 26 of the CPC apply
so far as the witness summonses are concerned. Section 23 gives powers to the
courts to issue summonses when the suit is duly filed to the defendant.

This process of the summons to the witnesses is done after framing the issues,
the trial begins and at the trial, the plaintiff and the defendant lead evidence in
support of their claims. The rule that the evidence of witnesses should not be in
is in question and answers form is not absolute. There are times when the nature
and importance of a question or the importance of an answer to it is such that it
is necessary to record both the question and the answer to it.

As a general rule, all witnesses must be examined in open court87 and on oath or
affirmation, that is, they must swear or affirm (depending on their religious

86
E.Martin, A Dictionary of Law, 5th, 188
faith) to tell the truth, the whole truth and nothing but the truth. The only
exceptions to this rule are children of tender years, the who, if the court is
satisfied, after due inquiry, that although they do not know the nature, value and
obligations of oath. Such witnesses may give evidence without being sworn or
affirmed.

There are three stages in examination of witnesses: examination in chief, in this,

the party calling the witness examines him, that is, he asks the witness all
questions the answers to which will support his case.
The aim of examination in chief is to let the witness give all the materials facts,
which the witness knows and on which the case of the party calling him wholly
or partly depends. When examination in chief is complete, the opposite party is
given the opportunity to examine the witness. This is called cross-examination
and its purpose is to test the accuracy and truthfulness of the witness, to destroy
or weaken his evidence, or to show that the witness is unreliable or to extract
from the witness evidence, which is favorable to the party. When cross-
examination is over, the party calling the witness will, if he so desired, examine
the witness again. This is called re-examination. The purpose of it is, so to
speak, to mend holes or repair the damage done by cross- examination.

Section 144 of the Evidence Act provides that order of production and
examination of witnesses will be regulated and governed by the law. Criminal
cases by the criminal procedure code and in civil litigation by the civil
procedure code.

2.0 MAIN BODY

(a)The scope of powers of civil courts to examine the witnesses called by the
parties,
As far as our question is concerned particularly in the power of civil courts to
examine the witness called by the parties, it is the duty of the parties to call for
witness to give evidence and not the duty of the court, this was held in the case
of Generose Ndimbo V B.Y Kapesi88 that it is the duty of each party to prove
the claim in civil case and the court can only summon witnesses if the court is
asked to do so.

87
O XV111 r 4
88
[1988] TLR 73
Therefore from the case it remain that it is the duty of parties themselves to call
for the witnesses though there are some circumstances in which the court can do
so, these circumstances will be explained later.
Therefore in examination of the witness called by the parties the court has the
following powers in relation to examination.
Firstly the court is responsible for the order of re examination of the facts or
matter, which is new by the adverse party, provided the party has permission
from the court as per s.147 (3) of the Evidence Act.

Also the court have power to permit a witness to be recalled either for further
examination in chief or for further cross examination and if does so, the parties
have right of further cross examination and re examination, as provided under
sect.147 (4) of the Evidence Act, and also this has been provided under O XVIII
r12 of CPC, which provides that, if sometimes occur that after a witness has
given evidence, either of the parties or the court may be of the view that some
material facts to which the witness could have testified has been omitted, in such
event, the court at any time may re-call such witness and subject to rules of
evidence, put question to him as the court may deem fit.

Further more any person present in the court may be required by the court to
give evidence or to produce any document then and there in his possession or
power as per O XVI r 7 of CPC.
The court has power to declare the witness as a hostile witness, therefore, the
party may not declare cross examine his own witness unless the witness has
turned hostile and the court has granted permission to the party to cross examine
the witness.
Therefore the civil courts has power to examine the witnesses called by the
parties, but this is power is limited simply because, it is the duty of the parties
themselves to examine the witnesses as they are the ones who are responsible in
calling them but in doing so the court may in order to discover or to obtain
proper proof of relevant facts, ask any question he pleases, in any form and at
any time of a witness of a parties relevant fact or irrelevant and neither the
parties shall be entitled to make any objection to any such question or order
without the leave of the court to cross examine any witness upon any answer
given in reply to any such question, this is per s176 of the Evidence Act.

The power of the court under that provisions have the following limitations
which are provided under sub sect 2,in that, the sub sect 1 shall not authorize the
court

Firstly to compel any witness to answer any question or produce any document,
which such witness would be, entitled to refuse to answer or produce under Part
II of this Chapter (Evidence Act) if the question were asked or document were
called for by the adverse party.
Also to ask any question, which it would be improper for any other person to
ask under sects 158 or 159, which provides for the court to decide, when
questions shall be asked and when witness compelled to answer, and also for the
questions not to be asked without reasonable grounds.

Lastly, to dispence with primary evidence of any document, except in the case
excepted by this Act, it is provided that documents must be proved by primary
evidence except in the cases mentioned under the Evidence Act, and the
circumstances are provided under s.67 of the Evidence Act.

(b) The scope of powers of civil courts to summon and examine witnesses on its
own accord.

It is provided by the law that parties are responsible to call witnesses simply
because they are the ones who knows their case and the persons to assist them as
their witnesses, however the law provides on the other hand that where the court
at any time thinks it necessary to examine any person other than a party to the
suit and not called as witness by the party to the suit the court may, of its own
motion, cause such person to be summoned as a witness to give evidence or
produce any document, and may examine him as a witness,this is provided
under O XVI r 14 of CPC.The procedures underline the fact under the
adversarial system it is the party himself who will prosecute his case, thus he is
in a better position to know his witnesses and secure the attendance of his
witnesses.

It is pointed out that the power is normally used to examine expert witnesses, it
should not never be used to build up a party’s case and in the case of Joseph
Marco V P.Rweyemamu89 it was held that in the case that when a witness is
summoned under the provision of r 14 he is the witness of the court and not a
witness for any of the parties, the court should not use its power under this rule
to help to strengthen a party’s case.

According to the case of Thobias Zenda V Herman Zenda90, r 14 should be

exercized very rarely the judge stated that, this rule empowers the magistrate to
call at his own initiative an additional witness at any stage in the proceeding if
he thinks it is necessary to do so, the broad rule being that it is for the party to
present his own case to the court and not for the court to make a case for litigant.
The instances in which the provisions of this rule may be invoked will depend

89
(1977) LRT.59
90
(1977) LRT 23
on the facts of each case. Furher more in the case of Salum V Said91 it is held
that this being judicial discreation, it has of course, to be exercised judicially, it
must only be exercised where the court is satisfied that it is for the interest of
justice to do so and also it is only rarely that a court will, of its own motion, in
cases such as this seek to clarify an issue by requiring an additional witness

3.0 CONCLUSION

From the above question it can be noted that, it is a duty of the party to civil
proceedings to present his case, which is discharged by the investigating to the
case, and presenting relevant evidence, the court under no circumstances should
introduce in investigating a party’s case and summon witness on behalf of a
party. Court has power to summon witness other than those summoned on
application by the parties, and the witnesses so summoned are the witnesses of
the court and not of the parties.

Qn: Discuss the circumstances under which a court of law will make the following four
orders.
(i) Amendment of pleadings
(ii) Discovery and Inspection
(iii) Striking out of pleadings
(iv) Summary judgement

OUTLINE
1:0 INTRODUCTION

2:0 AMENDMENT OF PLEADINGS.

2:1 The circumstances under which the court of law would make an order of amendment of
pleadings.

3:0 DISCOVERY AND INSPECTION

3:1 The circumstances under which the court of law would make an order of discovery and
inspection.

4:0 STRIKING OUT OF PLEADINGS

4:1 The circumstances under which the court of law would make an order of striking out of
pleadings.

5:0 SUMMARY JUDGEMENTS

91
(1970) HCD n 95
5:1 The circumstances under which the court of law would make an order of summary
judgement.

1:0 INTRODUCTION
Courts of law in their process of administering justice are encountered with different kinds of
roles/functions to which they must perform, as they are part and parcel of the court
procedure. In this respect, it is the aim of this presentation to discuss in detail one of the roles
of the court of law, which is concerned with making orders. This paper will most specifically
dwell on the circumstances under which a court of law would make the following orders:
Amendment of pleadings; discovery and inspection; striking out of pleadings and summary
judgement.

2:0 AMENDMENT OF PLEADINGS.

Pleadings is the formal allegations by the parties to a law suit of their respective claims and
defenses, with the intended purpose being to provide notice of what is to be expected at
trial92. Under rules of civil procedure the pleadings consist of a complaint, an answer, a reply
to a counter-claim, an answer to across claim, a third party complaint, and a third party
answer. The same is defined under Order vi Rule 1 of the Civil Procedure Code, hereinafter
referred to as the CPC.

2:1 The circumstances under which the court of law would make an order of
amendment of pleadings.
At any stage of the proceedings, the court has the power to allow either party to alter or
amend his pleadings in such a manner and on such terms as may be just. But all such
amendments must be made for the purpose of bringing out for determination the real
93
questions in controversy between the parties .

This rule, like most of the rules governing pleadings, is based on the principle that pleadings
must raise all matters that are in dispute so that either party is aware of what the other party
contends, and so that a multiplicity of legal proceedings is avoided. It is in this vein that, such
amendments must be freely allowed if thereby the real substantial questions can be raised
between the parties and a multiplicity of legal proceedings avoided. It should be borne in
mind that, the making of the amendments is not really a matter of power of a court but it is
94
the duty of the court to allow such amendments, so that substantial justice may be done .

Previously, the proviso under Order vii Rule 11(a), as amended, used to reject a plaint when
and where it did not disclose the cause of action. But the G.N. No. 228 of 1971 now has
cured the position under a proviso. That, provided that if the court is satisfied that if the
plaintiff is permitted to amend the plaint, the plaint will disclose the cause of action if the
court may allow the plaintiff to amend the plaint subject to such condition as to costs or

92
Henry C. B, (1991) Blacks Law Dictionary, 6th Ed. p.798.
93
Order vi rule 17 of the civil procedure code Act No.49 of 1966.
94
HARJI KARSAN .v. MONJEE RAGHAVJEE (1943) E.A.C.A.10
otherwise as the court may deem fit to impose. The same position was reiterated in the case
95
of HANS NAGORSEN .v. BP TANZANIA LIMITED , where Kyando J, ordered the plaint
to be amended so that defects pointed out could be rectified.

Another circumstance is where there is a question of controversy between the parties in

dispute. A point of controversy can arise for instance, where parties in dispute have not
agreed as to what document is to be attached to the plaint as annexure. In support of this
96
aspect is the case of TANZANIA OLYMPIC COMMITTEE v. A. SIMBAULANGA,
where it appeared that there had been confusion between the parties as to the annexures to
certain documents in the pleadings. In this regard, the court of Appeal ordered for the
amendment of the plaint.

3:0 DISCOVERY AND INSPECTION

In a general sense, discovery is the ascertainment of that which was previously unknown, the
disclosure or coming to light of what was previously hidden, the acquisition of notice or
knowledge of given acts or facts, as in regard to the discovery of fraud affecting the running
97
of the statute of limitations or the granting of a new trial for newly discovered evidence .

Therefore, it is the utter purpose of discovery to make the other party disclose the existence
of documents and the inspection of documents by the party applying for such discovery.
Inspection is to examine, scrutinize, investigate, look into, check over, or view for the
purpose of ascertaining the quality, authenticity or conditions of an item, product, document,
98
residence, business etc .

Discovery and inspection are governed under Order xi of the CPC. In any suit the plaintiff or
defendant by leave of the court may deliver interrogatories in writing for the examination of
the opposite parties or any one or more of such parties, and such interrogatories when
delivered shall have a note at the foot thereof stating which of such interrogatories each of
99
such persons is required to answer .

3:1 The circumstances under which the court of law would make an order of
discovery and inspection.
Interrogatories as a general rule are to be allowed whenever the answer to them will serve
either to maintain the case of the party administering them or to destroy the case of the
adversary. In England, interrogatories are allowed so as to ascertain the nature of your
opponent’s case or the material facts constituting his case, and to support your own case

95
[1987] TLR n.175 at 183.
96
[1997] TLR 184 (CA)
97
Henry. Op. Cit 322.
98
Ibid. p.547.
99
Order xi Rule 1. of the CPC.
either directly by obtaining admission or indirectly by impeaching or destroying your
100
adversary’s case .

In our jurisdiction, in respect of Order xi Rules 2, 10 and 15(2) of the CPC, the court shall
make order as to discovery and inspection of documents when and so far it is of the opinion
that it is necessary either for disposing fairly of the suit or for saving costs and must not be
unreasonable. Order xi makes provision for the delivery of interrogatories by either party by
leave of the court.

Objection to answering any interrogatory may be taken in the affidavit in answer on the
ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit
or not sufficiently material or on any other ground.

4:0 STRIKING OUT OF PLEADINGS

Striking out is the procedure for attacking pleadings and originating processes on the ground
that they are not correctly formulated. A successful striking out application may result in an
action being stayed or dismissed, the pleading being struck out and judgement being entered
101
or it may result in the offending part of the pleading being struck out .

4:1 The circumstances under which the court of law would make an order of striking
out of pleadings.
Generally, a court may, at any stage of the proceedings, order that any matter in any pleading
which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay
102
the fair trial of the suit be amended or struck out . There is usually no difficulty in deciding
what matter is necessary. The difficulty lies in deciding what matter is scandalous,
embarrassing or prejudicial to a fair trial of the suit. A matter is said to be scandalous if it is
indecent or needlessly offensive, or is an allegation made for the malignant purpose of
103
abusing or prejudicing the opposite party .

In considering the question whether a pleading tends to prejudice, embarrass or delay the fair
trial of the suit, a liberal interpretation should be given to the words ‘trial of the suit’. Hence,
not only a pleading, which tends to prejudice or embarrass a party at the actual trial of a suit
but also a pleading, which tends to prejudice or embarrass at any stage of the proceeding in
the suit, would be within this rule.

Incomplete allegations of facts can be struck off and further, the allegations which are totally
unnecessary and have been made with a view to embarrass the defendants cannot be
permitted. A pleading is embarrassing if it is so drawn that it is not clear what case the

100
Vinay, K.G. (2005), Mulla Code of Civil Procedure, 14th Ed. p. 949
101
Stuart, S. (1995), A Practical Approach to Civil Procedure, 2nd Ed. P. 361.
102
Order vi Rule 16 of the CPC.
103
Chipeta, B.D (2002) civil Procedure in Tanzania, p.69.
opposite party has to meet at the trial. But a pleading is not embarrassing merely because it is
104
prolix .

5:0 SUMMARY JUDGEMENTS

This is a procedural device available for prompt and expeditious disposition of controversy
without trial when there is no dispute as to either material fact or inferences to be drawn from
undisputed facts, or if only question of law is involved. Any party to a civil action to move
for a summary judgement on a claim, counter-claim, or cross claim when he believes that
there is no genuine issue of material facts and that he is entitled to prevail as a matter of
105
law . Summary judgement is a procedure whereby a plaintiff can apply for judgement
against a defendant, usually shortly after saving a Statement of Claim, without proving the
case at trial. The policy behind the procedure is to prevent delay in cases where there is no
106
defence .

5:1 The circumstances under which the court of law would make an order of summary
judgement.
Under Order xxxv of the CPC, it is clear that, in a summary suit, the trial begins after the
court has granted leave to the defendant to contest the suit. Having done this, the court can
proceed upto the stage of hearing the summons for judgement and passing the summary
judgement in favour of the plaintiff. This will be done by the court under two circumstances:
If the defendant has not applied for leave to defend or if such applications has been made but
refused; or if the defendant who is permitted to defend fails to comply with the conditions on
107
which the leave to defend was granted .

Qn:
The plaintiff, a limited liability company is a prosperous manufacturer of cooking oil in East
African Region. It has sued your client, a natural person, in the High Court of Tanzania
(commercial Division) for unpaid portion of the purchase price of cooking oil. What course
or courses of action will you take on behalf of the defendant before the hearing in a following
alternative?
(a) The registered office of the Plaintiff Company is located in Nairobi, Kenya.
(b) The plaintiff has not, to date, filed reply to the defendant’s counterclaim.
(c) The defendant dies before the date of hearing.

OUTLINE

104
Vinay. Op. Cit. P.809.
105
Henry Op. Cit. 1001.
106
Stuart, S. P. 158.
107
Vinay, Op. Cit. P.1552.
1.0 INTRODUCTION

2.0 CAUSES OF ACTION TO BE TAKEN ON BEHALF OF THE DEFENDANT

2.1 THE REGISTERED OFFICE OF THE PLAINTIFF COMPANY IS

LOCATED IN NAIROBI, KENYA

2.2 THE PLAINTIFF DOES NOT FILE THE REPLY TO THE DEFENDANT’S
COUNTERCLAIM

2.3 THE DEFENDANT DIES BEFORE THE DATE OF HEARING

3.0 CONCLUSION

4.0 REFERENCES

1.0 INTRODUCTION

The hearing of the parties can be effectively done when the pleadings are complete. It is from
the pleadings that the court will frame the issues, and it is from the issues that the court may
hear the parties and make decision basing on evidence presented before the it. Pleading is a
matter, which normally occupies the attention of the parties to the suit in the early stages. O.
VI, r. 1 of the Civil Procedure Code (hereinafter to be referred as the CPC) defines pleading
as the plaint, written statement of defense and the reply to the written statement of defense an
d any other documents which is submitted to the Court in the process of preparing the suit.
Pleading is a legal term consisting of documents and art of drafting such documents.
Pleadings are not evidence but mere allegations, which will have to be supported by
evidence.

The facts of the questions are as follows “the plaintiff, a limited liability company is
prosperous manufacturer in East Africa Region. It has sued your client, a natural person, in
high court of Tanzania (commercial Division) for unpaid portion of the purchase price of
cooking oil.”
We have been asked as to what cause of action we will take on behalf of the defendant before
the hearing in the following alternative situations?
(a) The register office of the plaintiff company is located in Nairobi Kenya
(b) The plaintiff has not, to date, filed reply to the defendant’s counter claim
(c) The defendant dies before the date of hearing.
Part two of this work discusses the cause of action in the above-mentioned alternative
situations, part three is the conclusion and part four is bibliography.

2.0 CAUSES OF ACTION TO BE TAKEN ON BEHALF OF THE DEFENDANT

 2.1 The Registered Office of the Plaintiff Company is located in Nairobi, Kenya
Since the registered office of the Plaintiff Company is outside Tanzania, he will be required
to pay the security for costs. According to O.XXV r, 1(1) of the CPC If the plaintiff is
residing outside Tanzania and that such plaintiff does not posses any sufficient movable
property within Tanzania other than the property in the suit, the court may, either on its own
motion or on the application of the defendant, order the plaintiff within a time to be fixed by
the court, to give sufficient security for payment of all costs incurred and likely to be incurred
in the suit by the defendant. The case of Farrab Incorporated .v. Brian J Robson and
others108 reiterates this principle, where the defendant to the suit filed in Kenya made an
application for security for costs on the ground that the plaintiff was a corporation registered
and having place of business at Moshi, Tanganyika. The court granted the application.

2.2 The Plaintiff has not filed reply to the Defendant’s Counter Claim.
In this situation we urge the court to pronounce the judgement in favour of plaintiff upon
such proof of the claim as per O VIII r 14 of the CPC. The law requires that where any party
has been required to present a written statement under sub rule 1of rule 1 or a reply under rule
11 fails to present the same within twenty one days, the Court shall pronounce judgement
against him or make such order in relation to the suit or counter claim, as the case may be, as
it thinks fit. It is worthnoting that counter claim is taken as a plaint against the plaintiff and
the plaintiff is required to reply in terms of O. VIII r, 11. In the case of Joe Rugarabamu .v.
Tanzania Tea Blenders109, the respondent filed a written statement of defence along with a
counterclaim. The appellants failed to respond to the counterclaim within time. Before the
suit was held on merit the respondent applied for judgement to be entered on the
counterclaim under O. VIII r, 11 and r, 13 of the CPC. The trial judge granted the
application and entered judgement on the counterclaim. On appeal against the judgement on
the counterclaim the court held that “failure to file a reply to counterclaim within twenty one
days contravened O. VIII r, 11 of the rules of CPC”.

2.3 The defendant dies before the date of hearing

In this situation we will apply to the court to have the legal representative of the deceased
defendant joined to the suit. According to O. XXII r, 4(1) of the CPC, if a defendant dies
and the right to sue survives against him the court on an application made on that behalf will
cause the legal representative of the deceased defendant to be made a party to the suit and
will then proceed with it.

3.0 CONCLUSION
With regards to the above discussed circumstances, we conclude that the courses of action to
be taken in the first instance is for the defendant to apply for the plaintiff to pay security of
costs equivalent to the costs incurred or likely to be incurred. In the second situation where
the plaintiff fails to reply to the defendant’s counter claim, the judgement will be entered in

108
(1957) E.A 441
109
[1990] TLR 24
favour of the defendant. Where the defendant dies before the date of hearing the law provides
for the rights to be represented.

Qn: Asha was seriously injured when traveling as a front passenger in car driven by Juma,
which was involved in a head-on collision with a car driven by Adam. Asha
contemplates filing a suit for damages. Both vehicles were insured by National
Insurance corporation Ltd. In his reply to the demand note Juma denies liability and
blames Adam. In his defence Adam denies liability alleging his vehicle skidded on a
wet road and further alleges Asha was contributorily negligent in not wearing a seat
belt. Asha has already lost earning of Tshs. 50,000 a month over last month and is
unlikely to return to work for at least 8 months. She has used up all her savings and is
rapidly sinking into debt.

Advise Asha on, whom to sue and the principles that will be applied.

OUTLINE

1.0 Introduction

2.0 Main Body

2.1 Parties to a suit

2.2 Joinder of defendants

2.2.1 Interpretation of ‘common question of law’

2.3 Third Party Procedure

3.0 Conclusion

3.0 Bibliography

1.0 INTRODUCTION

The general rule is that no person is compelled to join as plaintiffs or defendants with others
in one suit. However the law makes provisions for those who want to sue jointly to do so
because we are operating an adversarial system, which system presupposes an individualistic
approach to complaint; in other words, under adversarial system the parties to proceedings
are masters of the procedure.
Joinder of parties has one intention, that of avoiding a multiplicity of suits; and it is in the
interest of the public that litigation should come to a speedy end. Whether one is going to
need the same evidence if several suits were brought, it is in this case advisable to join the
parties. Also to minimize the costs of proceedings or litigation as well as saving time of the
courts are reasons behind joinder of parties.

The court has the duty to control the action; it may order a splitting up of the parties when it
is of the opinion that the causes of action would not be conveniently tried together, for
example the plaintiff would be embarrassed when the suits are going to be tried jointly.
Order 1 rule 2i gives the court such a power, that is, “court may put plaintiff to an election or
order the splitting of the suit. Putting the plaintiff to an election means the plaintiff is made
to chose who should remain in the suit or who should go. This is absolute discretion by the
court but to be exercised judiciously, only after the court is satisfied that the joinder of the
suit would delay the proceedings or that the plaintiff is going to be embarrassed.

2.0 Main body

The question in hand involves who are parties to a suit; the principles of joinder of parties
and Third party procedure. To attempt the question the following issues will assist to set the
scope of the answer:
(i) Whether Juma and Adam can be parties to a suit to be filed by Asha
(ii) Whether Juma and Adam can be jointly sued in a single suit
(iii) Whether the National Insurance Corporation, the insurer of the two motor
vehicles can be brought into the same suit.

2.1 Parties to a suit

For any civil litigation to exist there should be opposing parties, and there has to be a dispute,
that is, subject matter in dispute. There has to be also a cause of action and a claim for relief.

Where there are opposing parties, the one in whom the cause of action rests is called the
‘plaintiff’, and the one who against him/her the relief is sought or claimed is termed as the
‘defendant’. Out of these two categories there are two types of parties in any civil litigation,
namely ‘necessary parties’ and ‘proper parties’.

A necessary party to civil proceedings is that party in whose absence no effective order can
be give. He is a person, if plaintiff ; and if defendant, he is a party against who a relief is
sought. To establish whether a party is a necessary party the important question is whether
the court may issue effective order in his absence or not. This is because the purpose of civil
litigation is to issue an effective order; to avoid a possibility of issuing an empty decree.
There is a formulation of the categorization found in Saha: “The Code of Civil Procedure”
1908 p. 263 that:
“A necessary party is one without whom no order can be made
Effectively and the proper party is one in whose absence an effective
 Order can be made but whose presence is necessary for a complete
And final decision on the question involved in the proceedings.
Against a necessary party there must be a right to some relief in respect
Of the matters involved in the proceeding in question, it must not be
Possible to pass an effective decree in the absence of such party. The test
For determining effectiveness of a decree is whether a decree can be
Executed without the presence of the party in question as regards the
Property sought to be decreed in favour of the plaintiff.”

Without dwelling much on the parties, in a summary, it can be said that, two principles can be
stated in respect of the concept of parties to suit, that is to say: All necessary and proper
parties have to be before the court so as to facilitate the effectual determination of the matter
in dispute – meaning joinder of parties. Furthermore, to avoid a multiplicity of suits all
disputes or questions arising between such parties should, as far as possible, be determined in
one action – joinder of causes.

The above principles being applied in the question in hand, and on determing the first issue, it
can be said that, Juma and Adam, in their reply to Asha’s demand note disputed Asha’s
claims, hence they are the opposing parties. Asha on one side, that is, a plaintiff, and Juma
and Adam on the other side, that is, defendants. Between these parties there is a dispute, that
is, liability to Asha’s injuries caused by the motor vehicle accident involving the two motor
vehicles, one driven by Juma and the other driven by Adam. There is a cause of action and
Asha can claim damages for the injuries she sustained and compensation for loss of income.
In view of the above, it is my considered view that Juma and Adam are the proper parties
(defendants) to be sued by Asha as they are persons whose presence is necessary for a
complete and final decision on the question involved in the claims. Asha is a necessary party
on the side of plaintiff for she is the one in who the cause of action rests. It is not mentioned
in the given material facts whether Juma and Adam are also the owners of the motor
vehicles. Had it been that they are mere drivers, and that there are different people claimed to
be owners of the motor vehicles or employers of the two, the following advice could have
been added, that is, those owners should also be made parties, that is, they are the necessary
parties to the suit because in their absence no effective order can be given. Otherwise, if
Juma and Adam are both drivers and owners of their vehicles, then each of them will be both
proper and necessary party because an effective judgment can be obtained against each of
them and presence of each is necessary for a complete and final decision on the question
involved in the proceedings. The first issue is therefore answered in the affirmative.

2.2 Joinder of Defendants

As said above, a person may sue on his own behalf, but subject to certain conditions, several
persons may sue jointly. Similarly, a person may be sued alone, but again subject to certain
conditions, several persons may be sued jointly in a single suit. I will now proceed to
examine the circumstances in which there can be proper joinder of defendants,
All persons may be joined as defendants against who, a right to relief, in respect of or arising
out of, the same act or transaction or series of acts or transactions, is alleged to exist, whether
jointly, severally or in the alternative; where if separate suits were brought against such
persons, any common question of law or fact would arise.ii It is not necessary for the joinder
of defendants that every defendant should be interested as to all the reliefs claimed in a suit
against him, or as to every cause of action included in any proceeding against him.iii In other
words, it is immaterial that the causes of action against the defendants are different. A
plaintiff is entitled under this rule to join several defendants in respect of several and distinct
causes of action. Where the court is of the opinion that the joinder would embarrass a
defendant or put him to unnecessary expense, it will order separate trials

As a general rule, then, where claims against different parties involve or may involve a
common question of law or fact bearing sufficient importance in proportion to the rest of the
action to make it desirable that the whole of the matter be disposed of at the same time, a
court will allow the joinder of the defendants subject to its discretion as to how the action
should be tried.iv It was held in an English case of Payne v. British Time Recordervin which
Scrutton, L.J., stated, at page 393:

…Broadly speaking, where claims by or against different parties involve or may

involve a common question of law or fact bearing sufficient importance inproportion
to the rest of the action to render it desirable that the whole of the
matters should be disposed of at the same time, the court will allow the joinder
of plaintiffs or defendants subject to its discretion as to how the action should
be tried.

The second issue is whether Juma and Adam could be jointly sued in single suit. As stated
above, a plaintiff is not compelled to sue any defendant. It is the plaintiff who chooses who
to sue. However, the law allows him/her to join defendants under circumstances as given
under Order 1 rule3.vi Defendants may be joined if the right of relief against them arises out
of the same act or transaction, or a series of acts or transactions. If separate suits were
brought against defendants common question of facts or law may arise, that is, whether you
are going to need the same evidence against all the defendants.

2.2.1 Interpretation of ‘common question of law’

The position of Order l rule 3 (supra) is construed liberally. It implies that the question of
law is common but the liability of defendant may be separate or general. In the case of
Harwood v. Statesman Publishing Coy Ltd,vii the judge stated:
“You must look at the language of the rules and construe them
liberally and where there are common question of law or fact
involved in different causes of action, you should include all
parties in one action subject to the discretion of the court if such
inclusion is embarrassing, to strike out one or more of the parties.
It is impossible to lay down any rule as to how the discretion of the
court ought to be exercised. Broadly speaking where claims by or
 against different parties involve common questions of law or fact
bearing sufficient importance in proportion to the rest of the
action to render it desirable that the whole of the matters should be
disposed of at the same time, the court will allow the joinder of
plaintiff or defendants subject to the courts discretion as to how
the action should be tried.”
How to give a liberal construction of rule, the above case gives a clue, that is, common
questions of fact or law to bear the same evidence. But the court has the final say to order
joinder or strike out.

The case of Abdullah Mohamed v. The official Receiverviii adopts Horwood’s position in
theoretical basis. On practical basis consideration should be the case of Stroud v. Lawsonix,
in which conditions were given on joinder of parties, in other words, these have to be
satisfied:
(i) There must be joint interest in the relief (for plaintiffs) or against the
reliefs (the defendants; and
(ii) To avoid a misjoinder of parties there should be same defendants in
respect of joinder of plaintiffs and same plaintiffs in respect of
defendants.
Chitty, J. stated the principle as follows:
“It is necessary that both these conditions should be fulfilled, that
Is to say, the right to relief alleged to exist in each plaintiff should
be in respect of or arise out of the same transaction and also there
should be common question of law or fact in order that the case
will be within the rule.”

The case was dealing with joinder of plaintiffs but can be disposed to the joinder of
defendants too. It should be noted that the two conditions must exist jointly, that is, they are
complementary not exclusive. (Both of them must be there, neither can stand alone). You
look at nature of the cause of action or basis for the cause action, which vests in every one of
them separately. Then look whether you are going to need the same evidence.

In the case at hand, the basis of cause of action which vests in Juma and Adam is that both
being drivers of two different motor vehicles were involved in a head-on collision which
resulted to seriously injuring Asha; the injuries which caused Asha to suffer loss of earnings
and further unlikely to return to work for at least 8 months. This is a cause of action which
vests in each one of them separately. There is a common question of fact, the liability of the
drivers involved in the head-on collision of the motor vehicles. Basing on the facts of the
case given, it is my considered view that there is a joint interest against the relief (the
defendants, that is Juma and Adam) The two of them separately denied liability of causing
injuries to Asha, hence, under Order 1 rule 3 they can jointly be sued.

In the case of Peter & Co. Ltd. v. Mangalji & Othersx the court was
interpreting Order 1 rule 3 (supra) in pari material with Order 1 rule 5 of
 Uganda Civil Procedure law. Sherridan, J. pointed out points to be satisfied
before joinder of defendants as follows:
(i) The right to relief in respect of or arising out of the same act or
transaction or a series of acts or transactions must be alleged to exist
whether jointly or severally, and
(ii) The suit must be one where if separate suits were brought against such
persons any common question of law or fact will arise

It is my view that Asha’s right to relief is in respect of or arising out of the

same act, that is, causing injuries and damages through careless driving by the
two drivers, which resulted to head on collision. The suit is one where if
separate suits are filed against each of them common fact and law will arise,
that is, who is liable.

There is another position which also may allow Asha to sue the two jointly even if she is not
sure of who is her correct defendant. This is found under Order 1 rule 7.xi According to this
provision of law she may join all people she may think are liable to her and leave it to court
to decide who to sue. This has an advantage that the people who will appear before the court
they would show why they should not be joined, hence Asha would not fail to realize his
relief. However there is a disadvantage in respect of expenses; the one who will be struck out
will make her suffer costs payable to him. Also the impression that she will show to court
may create a feeling to the court that she is not master of her own law.

In the result therefore, the second issue is also answered in the affirmative.

2.3 Third Party Procedure

In this paragraph, I will endeavour to discuss though in brief the principles of third party
procedure so as to determine the third issue as to whether the National Insurance Corporation,
the insurer of the two motor vehicles can be brought into the same suit.

Third Party Procedure is available to the defendants only and it has to fall within the four
corners of Order 1 rule 14.xii The party brought in by defendant is not an ordinary party to
the suit and the plaintiff has no quarrel with him; not original party. It is a procedure which
facilitate the conduct of two suits simultaneously (at the same time), that is to say, original
suit brought by plaintiff and the second suit brought by defendant against third party. It was
based on Equity but the Judicature of 1881 made the Common Law also to apply it. Its
rationale are as follows, that is to say, third party is based on the political position that, as far
as possible all matters relating to the subject matter of the suit should be determined in one
suit. It is also based on public policy that as far as possible multiplicity should be avoided.
By enacting third party procedure into civil procedure facilitate the bringing of a third party
who is not sued by plaintiff. Third party procedure therefore, has the effect of saving the
time of court and time of parties by allowing the claim of defendant to be entertained
simultaneously. All the facts surrounding the case are put into court at the same time. There
will be no possibility of conflicting decision.
The above rationale of the third party procedure is stipulated in the case of Standard
Securities Ltd. v. Hubbard & Another Tele Insurance Ltd Third Party.xiii Penny Cuick, J. in
this case stated the objects of third party procedure that:
“The objects of the rule are to prevent multiplicity of actions, to enable the court
to settle disputes between all parties to them in one action and to prevent the
same question from being tried twice with possibly different results.”

Let us take one example. A sues B for damages to his house resulting from a motor accident
between two vehicles driven by B and C. In such a case, B may apply for a third party notice
against D, his insurance company, because B’s claim against D is connected with the subject
matter of the suit between B and A and relates substantially to the relief claimed by A from
B.

In order that a third party may lawfully be joined in a suit the subject matter between the third
party and the defendant must be the same as the subject matter between the plaintiff and the
defendant and the original cause of action must be the same. This was so held in the case of
Yafesi Walusimbi v. A-G.xiv This case was elaborated in the case of Edward Kironde
Kagura v. Casta Pereira,xv also the case of Overseas Touring (Road Services) Ltd. v. Arica
Produce Agency.xvi According to the two cases, third party procedure is limited to claims for
contribution or indemnity only. In the case of Kironde (supra) the right to indemnity arises
mainly out of a contract but it is not confined to contracts. That is a general situation. But in
East Africa there has been some modification. The courts have accepted the position that a
joint tort feasor proceedings can be introduced in cases of right to indemnity or contribution.
This is by virtue of the case of Champion Motor Spares Ltd v. Barclays Bank D.C.O and
Another.xvii

In England we obtained a summary on the above situation in Birmingham & District Land
Co. v. London and North Western Rly Co.xviii This case was interpreting the provision of
Order l6 rule 48 of the Supreme Court Practice which is similar to our Order 1 rule 14
(supra). According to that case, “in order to bring a case within Order 16 rule 48 (equivalent
to Order 1 rule 14 (supra)) it is not enough that if the plaintiff succeeds the defendant will
have a claim against the third party but defendant must have against the third party a direct
right of indemnity as such which right must generally if not always arise from a contract
express or implied.”

In the case of Parry v. Carsonxix we can find a general rule that, so that a third party action
can be competent the defendant must show that in case he is found liable to the plaintiff then
he has a right to recover against a third party. He shows that in his affidavit and in his
pleadings. Such a possibility exists only when the subject matter is the same, that is, it is
possible when there is a direct connection. In this case the judge said,
“In order to bring himself within the ambit of Order 1 rule 14 the
applicant must show upon the face of his 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 being successful.”
This conclude the discussion on point of law concerning third party. In practice an
application to file a Third Party Notice is made ex parte, that is, in the absence of the
plaintiff and it must be supported by an affidavit. Order 1 rule 14 (2) (supra) does not
indicate the method of application; hence, we fall back to Order XL111 rule 2 (supra), that
the application is by way of a Chamber Summons supported by affidavit.

In the above circumstances and basing on the principles of law therein, I advise the would be
defendants, that is, Juma and Adam, that upon being sued by Asha and after filing their
defence, they should also file an application by way of Chamber Summons under Order 1
rule 14 (2) (supra) and any other enabling law, for leave to produce a third party notice. Such
an application must be supported by an affidavit which should state, inter alia, the nature of
plaintiff’s case, stage to which the proceedings have reached, nature of defendants’ claim
against the third party. It should also state the relationship between the defendants and the
third party- all those in terms of Order 1 rule 14 (supra). This procedure under Order 1 rule
14 (supra) is intended to save time of the court and to minimize costs. In the final result then
the third issue will therefore, have been answered in the affirmative.

3.0 Conclusion
In the above discussion it was attempted to show the basis of an advice to Asha on whom to
sue and the principles that will apply. From the discussion therefore, Asha is advised to sue
Juma and Adam for damages and loss of earnings caused by injuries she sustained from the
accident caused by the two. The advice has been extended to the proposed two defendants
that, because the two vehicles were insured by the National Insurance Corporation Ltd., they
should seek to bring into the suit a third party on grounds of indemnity from the third party in
the event the defendants are held liable.

Qn:
The remedy of temporary injunction is the most abused remedy in the hands of courts.
This is because the courts have so far failed to establish any credible rules of law for
guiding judicial discretion in the granting of temporary injunctions.

OUTLINE:

1.0 INTRODUCTION.

2.0 THE CONCEPT OF TEMPORARY INJUNCTION.

3.0 CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED.

4.0 PRINCIPLES GOVERNING TEMPORARY INJUNCTIONS.

5.0WHETHER THE REMEDY IS ABUSED BY COURTS FOR FAILURE TO
ESTABLISH RULES GUIDING COURT DISCRETION IN GRANRING THE SAME.

5.0 CONCLUSION.
6.0 BIBLIOGRAPHY.

1.0 INTRODUCTION.

An injunction is a judicial remedy prohibiting persons from doing a specific act called a
restrictive injunction, or commanding them to undo some wrong or injury called a mandatory
injunction, and may be either temporary, interim or interlocutory, or permanent. Order 37
deals with temporary injunctions.

Generally, in civil procedure law, injunctions are of two kinds, temporary and perpetual.
Injunction being in the nature of a preventive relief is generally granted taking note of the
equity. However, the court has no jurisdiction to grant by way of interim relief what could
never be granted in the main suit itself. Also, an injunction can only be granted by a
competent civil court and not by any revenue authority under a tenancy law or by an election
tribunal which is not a civil court.110

2.0 THE CONCEPT ASPECTS OF TEMPORARY INJUNCTION.

Temporary injunctions are restraints orders against a party or property of a party before the
suit or matter is finally determined.
The injunction is called temporary, for it endures only until the suit is disposed of or until the
further orders of the court. A temporary or interim injunction may be granted on an
interlocutory application at any stage of a suit.
Order 37 rule 1 of the civil procedure code stipulates that;

Where in any suit it is proved by affidavit or otherwise;

-that any property in dispute in a suit is in danger of being wasted,
damaged, or alienated by any party to the suit of or suffering loss of value
by reason of its continued use by any party to the suit, wrongly sold in
execution of a decree; or
- That the defendant threatens, or intends to remove or dispose of his
property with a view to defraud his creditors, The court may, by order grant a
temporary injunction to restraint such act or make such other order, for the
purpose of staying and preventing the wasting, damaging, alienation, sale,
loss in value, removal or disposition of the property as the court thinks fit,
until the disposal of the suit or until further orders.

110
Mohd Siraj Ahmad V.State Election Commission AIR 2000 Gau 101
Similarly, in any suit for restraining the defendant from committing a breach of contract or
other injury of any kind, whether compensation is claimed or not, the plaintiff may, at any
time after the suit has been filed, and either before or after judgement, apply to the court for a
temporary injunction to restrain the defendant from committing such breach of contract or
injury complained of, or any breach of contract or injury of a like nature arising out of the
same contract or relating to the same property or right111.

If the court is satisfied that the defendant might commit the breach or injury complained of by
the plaintiff, it will grant the temporary injunction sought on such terms as it thinks fit. In a
recent case of M/S Empire Properties Ltd v Kinondoni Municipal Council112 whereby the
defendant wish to demolish Masaki Building Complex which would cause irreparable
damage to the plaintiff. In order to avoid such damage the court granted temporary
injunction.

In addition, in making orders of temporary injunctions the court may order such term as to
the keeping of accounts and giving security.

Orders of temporary injunction may be made ex parte as provide under order 37 rule 4. The
court must in all cases direct notice of the application to be given to the opposite party. The
court before whom such an application is made can only proceed ex parte where it appear that
the giving of such notice would cause undue delay and that such undue delay would defeat
the object for which the application has been made as shown in Hans Wolfgang Golcher v G.
Manager Morogoro Canvas Mill Ltd113 Maina, J stated that;

“…the rule that the court shall in all cases, except where it appear that the object of
granting the injunction would be defeated by the delay, before granting an injunction,
direct notice of the application to be given to the opposite party is mandatory… If the
opposite party can be served without delay, as was the position in this case, an ex
parte injunction should not be issued.
”
The same was insisted in the case of Tanzania Knitwear Ltd. V Shamshu Esmail114.
3.0 CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED.

These can be found under order 37 rule 1 of the Civil Procedure Code. Where in any suit it is
proved by affidavit or otherwise;

· That; any property in dispute in a suit is in danger of being wasted, damaged or

alienated by any party to the suit, or wrongfully sold in execution of a decree, or;

111
. Order 37 Rule 2(1) of C.P.C.
112
. Civil Case 2006 (Unreported)
113
. (1987) T.L.R. 78.
114
. (1989) T.L.R 48.
 · That the defendant threatens or intends, to remove or dispose of his property with a
view to defraud his creditors.
· That the defendant threatens to disposes the plaintiff or otherwise causes injury to the
plaintiff in relation to any property in dispute in the suit;
The court may, by order, grant a temporary injunction to restraint such act or make such other
order, for the purpose of staying and preventing the wasting, damaging, alienation, sale, loss
in value, removal or disposition of the property as the court thinks fit, until the disposal of the
suit or until further orders.

3.0 PRINCIPLES GOVERNING TEMPORARY INJUNCTIONS.

The granting of a temporary injunction under the power conferred by this (rule) is a matter of
discretion. True, it is a matter of judicial discretion. But if the court which grants the
injunction rightly appreciates the facts and applies to those facts the true principles, then that
is a sound exercise of judicial discretion.115 In the case of Ibrahim v Ngaiza116 it was held
that; it a question of discretion of the court, which discretion must be exercised judicially by
appreciating the facts and applying them to the principles governing issuance of temporary
injunctions.

The court can grant a temporary injunction in exercise of its inherent powers under section
95. Where a suit was dismissed for default and application was made for the restoration of the
suit, though Order 37 rule I cannot be involved, yet the court can grant an interim injunction
under section 95 in the interest of justice.

The court in granting temporary injunction must first see that there is a bonafide contention
between the parties, and on which side, in the event of success, will lay the balance of
inconvenience if the injunction does not issue. Or as stated in the judgment of Cotton LJ in
Preston v. Luck,117 to entitle a plaintiff to an interlocutory injunction, the court should be
satisfied that there is a serious question to be tried at the hearing and that on the facts before it
there is a probability that a plaintiff is entitled to relief. The real point upon an application for
a temporary injunction is not how the question ought to be decided at the hearing of the case,
but whether there is a substantial question to be investigated and whether matters should not
be preserved in status quo until that question can be finally disposed of.

Furthermore where a perpetual injunction is sued for, and the plaintiff applies for temporary
injunction, the court should grant a temporary injunction if the effect of not granting such an
injunction will be to deprive the plaintiff forever of the right claimed by him in the suit. The
object of injunction is to preserve status quo. In issuing a temporary injunction, the tests to be
applied are:

115
White CJ in the case of Subba V. Haji Badsha (1903) ILR 26 Mad 168,174.
116
.(1971) HCD n. 249.
117
(1887) 27 CD 497,506; Babu Rameshwar Prasad Singh v. Md Ayyub AIR 1950 Pat 527.
 (i) Where the plaintiff has a prima facie case;
(ii) Where the balance of convenience is in favour of the plaintiff; and
(iii) Whether the plaintiff would suffer an irreparable injury if his prayer for
temporary injunction is disallowed.

The phrases ‘prima facie case’, balance of convenience’, and irreparable loss’ are words of
width and elasticity to meet myriad (countless/multitude) situations presented by man’s
ingenuity in given facts and circumstances but they must always be hedged with a sound
exercise of judicial discretion to meet the ends of justice.118

A prima facie case implies the probability of the plaintiff obtaining relief on the material
placed before the court. Every piece of evidence produced by either party has to be taken into
consideration in deciding the existence of a prima facie case. For establishing a prima facie
case, it is not necessary for the party to prove his case to the hilt (as much as possible) and if
a fair question is raised for determination, it should be taken that a prima facie case is
established.119

The plaintiff must establish that the balance of convenience in the event of withholding the
relief of temporary injunction will, in all events exceed that of the defendant in case he is
restrained. The plaintiff must also show a clear necessity for affording protection to his
alleged right which would otherwise be seriously injured or impaired. The principle of
balance of convenience implies the evenly balancing of scales.

The term ‘irreparable injury’ means injury which is substantially and could never be
adequately remedied or atoned for by damages, injury which cannot possibly be repaired.120
It implies a substantial and continuous injury for which there does not exist any standard for
ascertaining the actual damage likely to be caused. Irreparable injury, however, does not
mean that there must be no physical possibility of repairing the injury, but means only that
the injury must be a material one that cannot be adequately remedied or compensated by way
of damage. Diversion of funds from a charitable organization is held to be an instance of
irreparable injury.121

Application of these principles was shown in the case of Hans Wolfgang Golcher v General
Manager of Morogoro Canvas Mill Limited122. In the case, the court accepted the appellant
submissions that the ex-parte temporary injunction was issued against known principles
governing temporary injunctions. Learned counsel submitted that an applicant for an interim
injunction must establish a prima facie case with a probability of success and that the facts
must show that if a temporary injunction is not granted, the applicant would suffer irreparable

118
Dalpat Kumar V. Prahlad Singh AIR 1993 SC 276
119
Gadadhar Mishra v Biraja Devi AIR 1999 Ori 49
120
Multichannel India Ltd v Kavitalaya Productions Pvt Ltd AIR 1999 Mad 59
121
Gadadhar Mishra v Biraja Devi AIR 1999 Ori 49
122
Supra
injury which cannot be adequately compensated by an award of damages. He cited the case
of Giella v Cassman Brown H and C. Ltd [1973] EA 358 at page 360.

Under O 37, r 1 the court has the power to grant an ex parte order, however the same should
be granted only under exceptional circumstance. The factors which should weigh for the
grant of exparte injunction are:
§ Whether irreparable or serious mischief will ensue to the plaintiff;
§ Whether refusal of ex parte injunction would involve greater injustice than the grant
of it would involve;
§ The time at which the plaintiff first had notice of the act complained of;
§ Whether the plaintiff had acquiesced for sometime;
§ Whether the application is made in utmost good faith; and
§ In any case, an ex parte order even if granted must be for a limited period of time.

The general principles of balance of convenience, prima facie case and irreparable loss would
also be considered by court.

The principles on the bases of which application for temporary injunctions are granted or
refused are well settled in the case of Attilio v Mbowe123, George, CJ restated the principles
in the following terms:

It is generally agreed that there are three conditions which must be satisfied before
such an injunction can be issued:
i) There must be a serious question to tried on the fact alleged and a probability
that the plaintiff will be entitled to the relief prayed,
ii) That the courts interference is necessary to protect the plaintiff from the kind
of injury which may be irreparable before his legal right is established, and
iii) That on the balance there will be greater hardship and mischief suffered by the
plaintiff from withholding of the injunction than will be suffered by the
defendant from the granting of it…the court must be satisfied that the damage
which the plaintiff will suffer will be such that mere man compensation will
not be adequate.

He added that a temporary injunction will normally be granted only if the whole point of the
perpetual injunction claimed will be defeated if the temporary injunction is not granted.

The case of T.A. KAARE v GENERAL MANAGER MARA COOPERATIVE UNION124

presented the same view. The court held inter alia;

…Before granting a discretionary interlocutory injunction the court should consider:

(a) Whether there is a bonafide contest in between the parties.

123
(1969) HCD n.284.
124
(1987) TLR n. 17
 (b) On which side, in the event of the plaintiff's success will be the balance of
inconvenience if the injunction does not issue, bearing in mind the principle of retaining
immovable property in status quo.
(c) Whether there is an occasion to protect either of the parties from injury
known as "irreparable" before his right can be established. "Irreparable Injury" means that the
injury will be material i.e. one that could not be adequately remedied by damages.

4:0 WHETHER THE REMEDY IS ABUSED BY COURTS FOR FAILURE TO

ESTABLISH RULES GUIDING COURT DISCRETION IN GRANTING THE SAME.

It is our observation, as we have discussed earlier that granting temporary injunction is the
matter of court discretion. Having such discretions, the court however is initially required to
act judicially. Moreover, there are laid down principles which the court must abide with when
exercising the discretion. These were discussed with under part 4 of this work.
Likewise, Ex parte orders of temporary injunctions must not be made at the whim of a court.
Rule 4 of Order 37 of the Civil Procedure Code provides for the issuance of notice of the
application to the opposite party. This was also discussed under part 2 of this paper.

The granting of a temporary injunction under the power conferred by this (rule) is a matter of
discretion. True, it is a matter of judicial discretion. But if the court which grants the
injunction rightly appreciates the facts and applies to those facts the true principles, then that
is a sound exercise of judicial discretion.125

Temporary injunction is a matter of discretion which, Has to be judicially exercised.126 In the

case of Ibrahim v Ngaiza127 it was held that; it a question of discretion of the court, which
discretion must be exercised judicially by appreciating the facts and applying them to the
principles governing issuance of temporary injunctions.

Injunctions and stay orders should not be granted mechanically without realising the harm
likely to be caused to the opposite party and it is not proper to burden the other party by
saying that the other party can get the stay order vacated as stated in DDA v Skipper
Construction Co. (Pvt) Ltd128.

From the foregoing discussion, we are of the opposite view from the view presented in the
question. The courts establish principles which the court has to apply while exercising
discretion on granting temporary injunction. In circumstances which the court grant the same
without regarding those rules, and where the party is dissatisfied with the injunction order, he
can make application to se aside the order. This is provided for under rule 5 of order 37 of the
civil procedure code. In India injured party has the right to appeal against the order. A court

125
White CJ in the case of Subba V. Haji Badsha (1903) ILR 26 Mad 168,174.
126
Attorney General V Maalim Kadau and 16 Others
127
.(1971) HCD n. 249.
128
. (1996) AIR SC 2005.
of appeal may interfere with an order relating to injunction where the action is arbitrary or
passed without consideration of the ingredients necessary for the grant of injunction129.

4.0 CONCLUSION.

In several instances, like in granting orders of temporary injunctions, courts are vested with
discretionary powers. It is a rule of law that discretionary powers of the court should be
applied judicially while regarding the circumstances of the case .Courts should not be guided
with self interests. In such circumstances, courts have been trying to establish principles
which will guide the court while exercising discretion.

Qn: It is good luck and quite legal to convert the ones personal use and property that
fall into ones hands as long as the parties purporting to be the true owners of the
property are quarreling over the ownership of the said property. The best one can tell
the two quarreling parties is that all liars and the law has no remedy for them.

Do you agree with the above statement as the true exposition of the law?

OUTLINE

1.0 INTRODUCTION
1.1Statement in respect of the question
1.2What is interpleader suit
1.3Law governing interpleader suit

2.0 MAIN BODY

2.1Statement in respect of the quotation from the question.
2.2Reasons for disagreement with the quotation from the question.
2.3Who may not institute Interpleader suit
2.4Conditions to be satisfied before an Interpleader suit can be instituted
2.5How Interpleader suit is framed and its proceedings.
2.6Who may not institute interpleader suit
2.7Rationale for Interpleader suit

3.0 CONCLUSION

REFERENCE

129
. UP Awas Evam Vikas Parishad v N.V Rajagopalam Acharya (1989) AIR 125 at pp 127-29.
1.0 INTRODUCTION
Where two more people have an adverse claim all to a particular identifiable sum of money,
property movable or immovable from another person who claims no interest therein other
than charges or costs such person may institute an interpleader suit against the claimants so as
to invite the court of law to determine the true owner of the said sum or property and of
obtaining indemnity for himself. That being the case the question asked falls under
Interpleader suit.

To interplead means to litigate with each other to settle a point concerning a third party.130 In
Halsbury’s Laws of England it has been stated that where a person is under liability in respect
of any money, goods or chattels and he is, or expects to be, sued for or in respect of that debt
or money, or those goods or chattels, by two or more persons making adverse claims thereto,
he may apply to the court for relief by way of interpleader131.

An interpleader suit is a suit in which the real dispute is not between a plaintiff and a
defendant but between the defendants who interplead against each other, unlike in an
ordinary suit In an interpleader suit, the plaintiff is not really interested in the subject matter
of the suit.132 Section 63 of the Civil Procedure Code enacts that two or more persons
claiming adversely to one another same debt, sum of money or property movable or
immovable, from a person who does not claim any interest therein and he is ready to pay or
deliver the same to the rightful claimant, may file an interpleader suit.

Thus for example A is in possession of car but he claims no interest in the car himself, and is
willing to hand it over to the rightful owner. The car claimed by X and Y.A may file an
interpleader suit against X and Y and the court will decide as to who is the rightful owner of
the car as between X and Y.

The law governing interpleader suit is the law governing procedure in civil litigation i.e Civil
Procedure Code, in our jurisdiction is Section 63 read together with Order XXXIII of the
Civil Procedure Code.133

2.0MAIN BODY
2.1Statement in respect of the quotation from the question.

With the true exposition of law we do not agree with the statement that it is good luck and
quite legal to convert to ones personal use any property that falls into ones hands as long as
the parties purporting to be the true owners of the property are quarrelling over the ownership
of the said property. The best one can tell the two quarrelling parties is that all liars and the
law has no remedy for them.

130
Concise Oxford Dictionary, 1995,p.712
131
Halsbury’s Laws of England,(4th Edn), Vol.37 p.200,para264
132
Mulla;Code of Civil Procedure,(2005) p.417
133
Cap 33R.E2002
 2.2Reasons for disagreement with the quotation from the question.

We do not agree with this statement on the sense that where individuals legal rights are in
dispute such as right to property always court is invited to determine such rights and as long
as they are legal rights law must have remedy toward such individuals. Also the law
governing civil litigation in Tanzania provides for the institution of a suit to deal such cases
whenever arose.
S.63 of Civil Procedure Code provides
’’Where two or more persons claim adversely to one or another the same debt, sum of money
or other property, movable or immovable, from another person who claims no interest
therein other than for charges or costs and who is ready to pay or deliver it to the rightful
claimant, such other person may institute a suit of interpleader against all the claimants for
the purpose of obtaining a decision as to the person to whom the payment or delivery shall be
made and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of the parties can properly be
decided, no such suit of interpleader shall be instituted’’
2.3 Who may institute Interpleader suit
He who institutes interpleader suit is the one in possession of the property. Interpleader suit is
not suit of ordinary nature because a person who institutes it has no cause of action, that no
legal right violated against him, he has not claimed a remedy against anybody. He claims no
interest in the property he posses, except charges and interest of handling such property
which does not belong to him. He therefore wants the court to determine who is rightful
owner of such property. No question can arise between him and the claimants over the
ownership. Actually, he is ready to deliver such property to the rightful owner.

2.4 Conditions to be satisfied before an Interpleader suit can be instituted

There are conditions, which must be satisfied before an interpleader suit can be instituted.
1.There must be some debt, sum of money or other property movable or immovable in
dispute;
2.Two or more persons must be claiming it adversely to one another;
3.The person from whom the debt, money or property is claimed must not be claiming
interest therein other than the charges and costs and he must be ready and willing to pay or
deliver it to the rightful claimant; and
4.There must be no suit pending wherein the rights of rival claimants can properly
adjudicated.134
5.There must be no collusion between the plaintiff and any of the defendants.

When it is said that there must be no collusion between the plaintiff and any of the defendants
it means in such suit the plaintiff must be in an impartial position. If he has in some way,
identified himself with one of the parties in the sense that it will make a difference to him one

134
Takwani C.K., Civil Procedure p.299
of them succeds, an interpleader suit will not lie. This is the provision of Order XXXIII,Rule
1 (c).
As such party who has taken an indemnity from one of the claimants is not entitled to file an
interpleader suit as held in the case of Jugnath vTulka.135
In this case, A had a sum of Rs.10, 000 which sum was claimed from him both by X and Y,
advesly to each other. A thus instituted an interpleader suit against X and .It was found at the
hearing that A had entered into an agreement with X before the suit was instituted, that if X
succeeded in the suit, he would accept from A, R.s 75,00 only in full of satisfaction of his
claim. Here A had an interest in the subject matter of the suit by virtue of his agreement with
X.He was therefore not entitled to institute an interpleader suit and accordingly his suit was
dismissed.

These conditions are also reiterated in the case of Sargent vGuatama136 while a(Revised)
Rules of Kenya, which is parimateria to our s.63, and O.XXXIII of our Civil Procedure Code.
In this case it was held that in an intrpleader suit there are essentials as set out under s.58 of
theCivil Procedure Act are that where there are two or more persons claiming the same debt
or sum of money from another person who claims no interest therein save for any charges or
costs. The proceedings may be instituted and the only limitation to the court’s power to grant
the application are those set out in r.2 of O.33 of the Civil Procedure (Revised) Rules 1948 of
Kenya to the effect that the applicant must satisfy the court by affidavit or otherwise that
(a) the applicant claims no interest in the subject matter in dispute other than charges or
costs
(b) there is no collusion between the plaintiff and any of the claimants
(c) the applicant is willing to do or transfer the subject matter into court or dispose of it as
the court may direct

2.5How Interpleader suit is framed and its proceedings

O.XXXIII of our Civil Procedure Code lays down the procedure for interpleader suits. Under
r. 1 of this Order it provides among other things plaint shall contain the following;
In every suit the plaint shall in addition to other statements necessary for plaints state
(a) that the plaintiff claims no interest in the subject matter in dispute other than for
charges or costs;
(b) the claims made by the defendants severally; and
(c) that there is no collusion between the plaintiff and any of the defendants.
After institution of the suit the court may order the plaintiff to deposit the amount or place of
property in the custody of the court before he can be entitled to any order in the suit, as
provided under r 2 of O.XXXIII.
At the first hearing court declare that the plaintiff is discharged from all liability, award him
costs and dismiss him from the suit, but if court thinks that justice so require it will retain all
the parties until the final disposal of the suit; r 4 (1) (a),(b) of the same Order.

135
(1908) 32 Bom.592 as cited in Jain P.M.,The Code of Civil Procedure p.250
136
(1968) E.A338
On the basis of the evidence available the court may adjudicate the title of thing claimed.
Where it is not possible, the court may direct that an issue or issues between the parties be
framed and tried, one of the claimants be made a plaintiff and the suit shall proceed in an
ordinary manner; r 4(2), (3) (a) (b)
2.6 Who may not institute an interpleader suit.
There is certain category of persons who may not institute interpleader suit. Normally, agents
or tenants shall not be permitted to file an interpleader suit against their principles and
landlords except in circumstances where the disputes among the principles and the landlords
are such which the agent or tenant cannot solve. If there be any honest doubt to which of the
persons claiming to be landlords in cases of succession on the death of the original landlord,
the tenant can file an interpleader suit. Simirlarly, where the agents entertains a genuine doubt
as to which of the successors of the deceased principal is entitled to receive the amounts, the
agent can file an interpleader suit as provided under O.XXXIII, r 5 of CPC.137

2.7Rationale for Interpleader suit.

The rationale behind filing an interpleader suit is to get claims of the rival defendants
adjudicated. It is the process wherein the plaintiff calls upon the rival claimants to appear
before the court and get their claims decided. The decision of the court in an interpleader suit
affords an indemnity to the plaintiff on the payment of money or delivery of property to the
person whose claim has been upheld by the court.138

3.0 CONCLUSION
With the true exposition of law we disagree with the statement that it is good luck and quite
legal to convert to ones personal use any property that falls into ones hands as long as the
parties purporting to be the true owners of the property are quarrelling over the ownership of
the said property. The best one can tell the two quarrelling parties is that al liars and the law
has no remedy for the them. We do not agree with this statement on the sense that where
individuals legal rights are in dispute such as right to property movable or immovable always
court is invited to determine such rights and as long as they are legal rights law must have
remedy toward such individuals. That being the case the law governing civil litigation in
Tanzania; The Civil Procedure Code under s.63 read together with O.XXIII of the same Code
provides for the institution of an interpleader suit to deal such cases whenever arose.

137
Also see Acharya N.K., Guide to CPC p.234
138
Groundnuts Extractions Export Development Assn.v State Bank of India (1977) 79 Bom LR 184 as
cited in Takwani C.K op.cit
BIBLIOGRAPHY

CONSTITUTIONS

Tanganyika Order in Council 1920 (22/7/1920)

Tanzania Government of, the Constitution of United Republic of Tanzania 1977 as

amended from time to time, the Government Printers Dar es
Salaam

STATUTES

Tanzania Government of, the Civil Procedure Code, Cap 33 R.E 2002, the Government
Printers, Dar es Salaam.

Tanzania Government of, Courts (Land Dispute Settlement) Act No 2 of 2002, the
Government Printers, Dar es Salaam.

Tanzania Government of, the Employment and Labour Relations Act No 6 of 2004, the
Government Printers Dar es Salaam

Tanzania Government of, the Judicature and Application of Laws Act, Cap 358 R.E 2002,
the Government Printers, Dar es Salaam

Tanzania Government of, the Land Act NO 4 of 1999, the Government Printers, Dar es
Salaam.

Tanzania Government of, the Labour Institution Act no 7 of 2004, the Government
Printers, Dar es Salaam.

Tanzania Government of, the Magistrate Court Act No 2 of 1984, the Government
Printers, Dar es Salaam.

Tanzania Government of, the Written Laws (Miscellaneous Amendment) Act No 3 of

2002, Government Printers Dar es Salaam.

Tanzania Government of, the Written Laws (Miscellaneous Amendment) Act No 4 of

2004, Government Printers Dar es Salaam.

Tanzania Government of, the Civil Procedure Code, Cap 33 R.E 2002, the Government
Printers, Dar es Salaam.
BOOKS
Blacks, H.C. (1991), Blacks Law Dictionary, St. Paul Minn West Publishing Co. United
States of America.

Chipeta, B.D, (2002), Civil Procedure in Tanzania: A Student’s Manual, Dar es Salaam
University Press, Dar es Salaam.

Gupta, V.K, (2004) Mulla Code of Civil Procedure, 14th edn, Lexis Nexis, New Delhi.

Gupta S, (2004), The Code of Civil Procedure, Wadhwa and Company Nagpur, New Delhi.

Jain, M.P, (2004), M.P Jain’s the Code of Civil Procedure, Wadhwa and Company Nagpur,
New Delhi.

Sime, S (1995) A Practical Approach to Civil Procedure, 2nd Ed., Blackstone Place
Limited, London.

Takwani, C. K, (2003), Civil Procedure, 5th edn Eastern Book Company, Lucknow.
.
MIMEO
Lecture notice for Civil Procedure by Dr. Masumbuko Lamwai