CIVIL PROCEDURE

Two questions a court must answer, one who has done it?.

That question is aimed at establishing responsibility, at

enforcement and therefore it is aimed at punishment.

Therefore a question which is answered by a criminal court.

All criminal proceedings aimed at establishing a person

responsible for a particular act.

Second question is who is liable? It is asked in proceedings

which are not punitive, not aimed at establishing

responsibility. It is asked in proceedings which are aimed at

compensation or restoration of status quo.

Every person has got two capacities. Public capacity as a

member of a society, this relates to a community. This is a

capacity qua citizen. That capacity is the one which

determines his duties to the state and that is a relationship

normally handled by public law. Public law is the law of

general application which determines the relationship of an

individual to the state among them criminal laws. Therefore

dispute settlement procedures relating to criminal law are

taken care by The Criminal Procedure Act.

When there is a dispute between state and individual in his

public capacity then that dispute is settled by the

procedures laid down under CPA.

There is a certain capacity, capacity qua individual-private

life relations. There are laws which relate to civil relations.

Civil is not defined under law dictionaries, we use ordinary

dictionary meaning private relations between individuals.

Disputes arise out of these relations are known as civil suits

and the act of going to court when there is a dispute

between individuals in their individual capacity is known as

litigation.

Lis means a dispute (Lis inter partes)

Lis is not only inter partes, it must be contested and this is

known as Litis Contestatio and when you go to court you

get what is known litigation.

Litigation is the act of invoking the jurisdiction of a

tribunal of competent jurisdiction to resolve a dispute

between one person known as a plaintiff, a complainant and

another person known as a defendant and who is alleged to

be responsible for the mischief complained off. The

procedure of settling disputes of a civil nature is called the

civil procedure. The basic law for civil procedure is the

Civil Procedure Code.

History of civil litigation.

There are four stages in the history of civil litigation:

1. Communal Stage

It was characterized by the popular assembling which

comprised of the members of the community including

the disputants. The popular existed when the society was

living a communal life. The level of development of

productive forces in the community was very low hence

no surplus in the community. And because of that there

were no classes and hence there was no ruling group and

ruled group.

Property holding was communal, there were no absolute

right to property, to the contrary there was relative right

– usufructuary right. Once right to property depended on

other people right to the property. People were

interdependent one another and therefore they have to

remain friends. Disputes revolved around the right to

use. The whole community was free to participate in

finding a solution to a dispute and dispute settlements

took a form of discussion (The Palaven) all members of

the community were allowed to propose the solution. A

decision reached in the popular assembling it was a

compromise decision which was based on a principle

win a little lose a little. It was more than arbitration, a

negotiation. The principle geared at maintaining peace to

the society. Society at that stage could not afford enemity

because they were interdependent. This is the procedure

which needed informality, no rigid rules.

Disputants were members of the same community. If

they belong to different community there was a self help.

Self help did exist as long as there was community but in

self help community do not become stable.

Certain stage in dispute settlement occurred during the

slave and feudal period. At the beginning dispute

settlement between makers of the property class was by

means of self help. The disputants raised armies and fought

battles to take what they considered to be their right. When

the dispute is between the non property class the

procedures used were known as the judgment of God. It

was believed that God would intervene to show who has

the right. Under the category you had ordeal, torture, oath.

Property class they challenged one another by what was

called duel. On this you get champions. These champions

were employed to fight on behalf of the disputants and

whoever employed a lose champion is taken as a judgment

form God that he has no right.

When feudalism was at its peak, movement from physical

judgment to logical judgment. Judgment based on

evidence. The feudal lords obtained permission from the

king to hold courts in their areas and they were paid by the

litigants. Litigation became one source of revenue to the

rulers. There was sufficient surplus to maintain a class of

people who specialized in resolving disputes. And the

system they employed is the third stage of settling disputes

– Inquisitorial.

It comes from the word inquisition which came from the

word inquire. Therefore it is the process of inquiring into a

complaint. For the first time the role of the court is seen.

Parties make complain before the court and the court takes

active role to inquire into the dispute. The court collects the

evidences, it actively investigates the case. It prosecutes the

case and eventually it decides on the dispute.

Five rules of procedures which must be followed before the

court plays an active role. There is a distinction between

the inquisitorial and communal system. The communal

system did not have a full time institution, there was no

court while under the inquisitorial there was a full time

institution. It was not a state institution and generally no

payment except for the beer. The assembly operated on the

basis of judicial knowledge. Under the inquisitorial there

was permanent court as a source of revenue, independent of

the community and does not know the existence of the

dispute until it is before it. Does not know the evidence till

it makes inquiry.

Inquisitorial – Judicial ignorance, Declaration of absolute

right

Communal – Judicial knowledge, Interest in the future

The popular assembly stage it was a stage when the

assembly was active-judicial activism. In the inquisitorial

system we see an amount of judicial activism when the

parties are also involved in presenting the evidence while in

the stage of act of God there was judicial inactivism.

Tribunal was there to regulate the fight.

Our system under the Civil Procedure Code is adversarial.

The litigants meet in court as enemies (adversaries). They

are defending private property interests. They are the ones

who know how they have acquired the property, have the

evidence of the right ownership.

They have active role in the process of dispute. The court is

ignorance of the case. It knows the law but not the facts. It

has the role of regulating procedures. Adversarial system as

adopted from common law is the system which emphasizes

on the passive role of the court. The court assumes the

attitude of neutrality and therefore there are basic principles

which adversarial follows;

1. Party prosecution

Parties are in control of the litigation, conduct of the

case. They are the ones who choose what steps to take

and at what time. They are the masters of procedures.

The court would not do anything in proceedings unless it

is moved by the parties.

Reason: They are the ones who are interested in the

subject matter of litigation. They

are the best defendants of their own interests.

The court operates on the basis of judicial ignorance, the

case becomes known to the court as the parties

presenting it. The court sits back and listens, it plays only

one role and that is of ensuring that the fight is

conducted according to rules, referred as the role of

referee of the game.

It was stated in the case of Jones v. National Coal Board1

Lord Denning drew the picture of adversarial system and

he stated as follows, “Let the advocates one after the

other put weight into the scale. The nicely calculated less

or more but the judge at the end decides which way the

balance tilts be it even so slightly so firmly is this

established in our law that the judge is not allowed in a

civil dispute to call a witness who he thinks might throw

some light on the fact”.

Three major elements of Adversarial System

1 [195] All ER 155

1. Under adversarial system the court is totally passive,

its only function is to listen and make decisions based on

law. The only thing court knows is the law not the case

because of the nature of private property.

2. Principle of parties prosecution.

The parties are the ones to adduce evidence, to

conduct the case. The ones who know the nature of

evidence to be produced, they are the masters of facts.

They are the ones supposed to put weight in the

weighing scale. Hence they are the ones who mostly

active in process of civil litigation. But you can not have

the weight unless you collect them and hence there is a

third principle

3. Parties investigation.

To investigate is to collect evidence. In the

inquisitorial system it is the court which investigates but

in the adversarial system the court does not prosecute

and because of that it does not have the duty to collect

evidence hence the principle of party investigation. It is

necessary parties are left with duty to investigate because

they are the ones who know the nature of their interest in

the subject matter. The two principles (2&3) have some

minor principles.

Because parties are the masters of procedure they have

freedom to choose what step to take at what stage, what

to do and at what time and what evidence to produce.

They are in control of procedural and evidence. For

example Order 8 Rule 1 of the CPC, the defendant

served with the plaint may file a written statement. Rule

5, the right to decide what to do but it is not exercised it

is deemed to have been waved.

Under party prosecution parties are free to wave their

procedural rights. The calling of witnesses is the duty of

the parties, Order 16 Rule 18. They have the burden of

proof, the court comes in to facilitate the calling of

witnesses.

Order 16 Rule 1: Party may apply to court for witness

summons but he may wave his right. It is the one who

should pay the expenses of bringing the witness because

he is the one who is prosecuting his case.

The choice of procedural steps to take and which witness

to call is called the principle of dispostitive election. You

have an election of what to do in terms of procedures and

what evidence to use. This principle goes hand in hand

with another principle and that is principle of orality of

proceedings together with the principle of mediacy as

oppose to immediacy.

Proceedings in our courts are viva voce that is by way of

mouth. Because they are oral parties must appear before

the court, there is direct interaction between the court,

the parties and the witnesses. The court hears and

receives live evidence and this is what provided under

Order 18 of CPC. Examination of witnesses by the court

orally – Rule 4

You can not have adversarial system without orality and

mediacy. Order 18 Rule 8 requires the judge/magistrate

to make a record…of a witness.

There are some circumstances when there is

documentation and immediacy under adversarial system

as adopted Order 19 is an exception to the general rule

that evidence must be oral and presented before the

court. Rule 1- the use of affidavit evidence. The witness

is not before the court, the court presented with a

document. Now we move from orality to documentation.

Also Order 26 Rule 1 allows the court to issue

commission to examine witnesses. The witness will be

examined by the commission who is not the party of the

case and he is the one who record the evidence. The

evidence follows the principle of documentation when it

is read before the court, the witness is not there. The

employ of principle of documentation and immediacy is

an exception which should be allowed very rarely.

Important: The adversarial system emphasizes on the

active role of the parties as opposed to the passive role of

the court. Emphasizes on orality of the proceedings as

opposed to documentation, emphasizes on mediacy – the

interaction of the court with parties and witnesses as

opposed to immediacy which emphasizes on indirect

contact between the court and parties.

To what extent does the adversarial system guarantee

access to justice?

Access to justice is a right which is in Article 13(6) of

the Constitution. Everybody has a right to a fare hearing.

However access in the court meets certain assumptions,

to decide one must know his right.

When there is legal illiteracy there is no equal access to

justice and when the adversarial system requires the

parties to prosecute, investigate their cases, such things

can not be done when the parties are ignorance of

substantive right – procedural.

To operate the adversarial system you must have

sufficient advocates. There are about 800 advocates and

most about 95% are in big cities, most litigants are in

rural areas. Most people do not know their procedural

rights.

Money is the problem, legal assistance is expensive and

few can afford them. Access to justice in the cities is not

universal.

The adversarial as imported does not guarantee equal

access to justice and our courts have tried to modify it to

suit our local conditions. Our courts have taken position

that courts in Tanzania should play the assistant role, that

should be a layman lawyer should assist the parties.

Simon Chitanda v. Abdul Kisoma2 Qukima A. J. had the

following to say;

“When the parties to a suit are layman conducting their

own case the trial court should scrutinize the pleading

and in general furnish any necessary guiding”. The court

should assist the parties.

John Magendo v. Govani3 as per Biron, J.

A child knocked by a car in Morogoro, 6 years later his

father filed a case in his own name. The defendant rose

an objection of time barred. Magistrate dismissed the

case.

He castigated, court proceedings are serious matters and

not games. It was the duty of the court to advice the

party of the law.

2 [1973] L.R.T 113 [1973] L.R.T. 60

The Manager Pars Banafish & Industrial Trade Co. v.

Sajjad B. Kerewala4 Msofe J.

In this case Mr. Robert a layman ought to have guided by

the court where possible or necessary.

Adversarial had undergone judicial modification as the

three(3) cases show. In JALA courts are directed to

apply principles of common law by modifying them to

suit our conditions.

Procedure is the reflection of attitude of a society

towards disputes. Mauro Cappellati: Ideas trend in Civil

Litigation [1971] 61 Mich L. Rev.

Procedures are the meeting point of ideas, conflicts and it

is the cape of good hope through which justice is realized

in a spint and cheapway and it is cape wrath where

experience may lead into decisions not favourable to a

litigant. Procedure it is a balance between what is good

and not good for the society. It is valid choice which

reflects society attitude.

4 [1996] T.L.R. 344 at 347

Procedure in communal society differ from urban

society. Social values in communal differ from urban.

ANATOMY OF CIVIL PROCEDURE CODE

CPC is divided into two parts. Main part is the Act itself

comprises of 101 sections. Sections enact the enabling

position what can be done in civil litigation. Give the court

procedural powers. The main Act does not show how the

powers of the courts are invoked. Gives general principles

but not mechanisms to apply procedural rights.

Example: Section 22 of CPC – Commencement of a suit by

presentation of a plaint.

Section 68 – Interlocutory application made in the course

of civil litigation.

Second Part comprises of two schedules. 1st schedule

comprises of Orders and Rules. Is the schedule which

shows the procedures of how enabling powers given by the

main Act are put into action. Order 7 – nature of the plaint.

Order IV – procedures of presentation to the court. Every

section in the Main Act there is a corresponding Order and

Rule in the 1st schedule. No operation by the main Act

without 1st schedule.

The 2nd schedule contains Rules of Arbitration. They are

also brought into play when court orders arbitration in the

cause of civil litigation.

Authority: In India, Sambogh v. Sunder5, it says that where

the main part of Act contains/creates a body of rules upon

the court should act, the schedule to the Act gives you the

procedures to be followed.

There is a unique situation in the CPC itself. A schedule to

an Act is not part of the Act (General Rule). There is an

exception enacted under section 80 – the rules contain in

the 1st schedule and 2nd schedule shall have the same effect

as they were enacted in the main body of an Act until they

are modified, annulled or replaced in accordance with an

Act. The initial Civil Procedure Rules were enacted by

parliament and were taken to be part of the Act.

2nd unique situation, section 81 the Chief Justice is declared

to be a rule making authority in respect of 1st and 2nd

schedule. Initially Rules were made by the parliament.

5 [1940] I.L.R. (Bomb) 756

Gives power to amend, modify, annul or to replace them. Is

the subsidiary legislative authority for the purpose of 1st

and 2nd schedule to the Act.

Meaning: it’s an exception situation whereby a subsidiary

legislative power is given authority not only to modify but

to repeal and replace Rules enacted by the parliament.

Parliament enacts general Rules but specific is left to the

court. Section 81 must be read together with section 82.

Section 82 enumerates the areas in which Chief Justice can

make Rules. Those areas cover the whole 1st and 2nd

schedules. Also section 81 must be read together with

section 101. Distinction between section 101 and 82 is 101

relates to forms, type of document which are to be used in

courts while section 82 relates to procedures. Section 101

empowers Chief Justice to prescribe forms which are to be

used in the process of civil litigation. Under CPC no forms

have been prescribed different form Zanzibar Decree

where there are prescribed forms. There is a vacuum under

CPC, it is silent. We must go back to common law

procedures. The forms which were used by High Court of

England by the reception clause date are to be used by the

Tanzania courts.6

CONSTRUCTION OF THE CIVIL PROCEDURE

CODE

Start by the major premises, CPC does not enact

substantive right it simply enact procedural right. Does not

vest any right to a litigant. Does not give or take away any

property from any litigant. Aimed at regulating procedures.

It is a procedural statute and not substantive. General rule

where a law affect the substantive rights of the citizens that

law should be strictly interpreted. Laws affecting

procedures should not allowed to be masters, are hand

maidens – servants in the process of administration of

justice and therefore they should be interpreted in a way

they will broke justice.

6 Article 2(3) of JALA

Iron & Steelwares Ltd. v. C. W. Martyr & Co.7 and Kendal

v. Hamilton8

These cases are authority for the proposition that rules of

procedure are not masters, they are servants. They are

supposed to facilitate the administration of justice, are not

expected to broke fair administration of justice. Lord

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

channel and means whereby law is administered and justice

reached. It strangely depart from its proper office where in

the process of facilitating it is permitted to obstruct and

even extinguish legal rights and this made to govern where

it ought to subserve. It does not give right or extinguish a

right.

This proposition leads to another, because procedure is a

servant and not a master and because it suppose to facilitate

and does not take or give right then rules of procedure must

be given a liberal interpretation. This was held in the case

of South British Insurance Ltd. v. Mohammed Taibjee Ltd.9

Authority for the proposition that in deciding cases courts

7 (1956) 23 EACA 175, 1778 [1978] 4 AC 504 at 5259 [1973] EA 210 at 214

should not rely on technicalities but rather go to the

substantive of the dispute. Technicalities do not resolve the

problem simply broke a part from realizing his right. Civil

litigation is aimed at having a final and conclusive

settlement of dispute. It introduces an element of

uncertainity in relations in the society. It discourages

production which the main role of the state is to facilitate

production. This proposition was adopted in our country in

Karimjee Properties Ltd. v. Khaki & Camera Prix Ltd.10

There was a preliminary objection raised by the defendant

that a plaint did not disclose a cause of action. And the

defendant was inviting the court to strike out the plaint for

failure to disclose a course of action and therefore the issue

was whether a plaint which does not disclose a course of

action should inaviably be struck out. The court was called

to interpret Order VII Rule X. At that time 1970 that Rule

said so, the Chief Justice expressed his regret at the state of

the law, the law required the court to struck out a plaint. He

stated; He hope that in the near future the situation will

change. Shortly he amended OVIIR10 by introducing a

10 (1970) HCD 235

proviso that is of the opinion that an amendment of the

plaint will disclose a course of action then it should order

an amendment instead of striking it out.

Before that time EA Court of Appeal had made a comment

on it in Nanji Prabhudas v. Std. Bank11 classify procedural

law into two (2);

1. Fundamental goes to the root of a dispute. They affect

the jurisdiction of the court or contradict a statute. Eg.

Matters of Res Judicata, limitation where it goes to the root

of the case there is no option but to interpret it strictly.

However, where it is not of a fundamental nature then you

should give a procedural provision a liberal construction.

According to this case most procedural matters do not go to

the root of the case and therefore they should be given a

liberal interpretation. According to this case the role of a

civil court is to do substantial justice without undue

technicalities in law. Therefore a civil court should not

hasten to declare a proceeding a nullity purely on the

ground of procedure, Orthodox position. Courts in

Tanzania in recent times have developed a different

11 [1968] EA 670 at 683

approach. First is found in the case of R. Mohammed v.

THA12 The High Court had entered judgment in favour of

the plaintiff because the defendant had not filed a written

statement of defence. The issue in the appeal was whether

the court correctly exercised its power under OVIIIR14 of

CPC. Ramadhan J., ruled that rules of procedures are there

to be followed, a court can not depart from a rule and the

pretext is that it is doing justice. Rules of procedures vest

rights to the party.

There are other cases.

In an application to the court a wrong citation of enabling

powers or known citation of enabling powers makes the

application incompetent and it ought to be struck out.

Oppose to the tradition. The court is presumed to know its

powers conferred to by the law.

Courts concentrate on deciding cases on technicalities

rather than going to the substantial right. The use of

technicalities reflects laziness instead of going into the

substance matter. As a general rule procedural statutes

should be interpreted liberally because they do not vest any

12 Civil Appeal 21/1996 (Unreported)

substantive right to the party. Strictly interpretation of rules

of procedure should be made only when these rules go to

the root of the jurisdiction of the court, they are

fundamental in their nature when they go into the root.

When they do not affect the jurisdiction of the court such

rule generally must be given a liberal construction.

However, the Court of Appeal of Tanzania has moved

away from the principles by taking a position that rules of

procedure are there to be followed and basing on that where

there is a specific procedural rule that rule must be

followed so as to introduce an element of certainty in

procedure. That is to say according to Court of Appeal the

principle of liberal interpretation of procedural statutes

should not be used to introduce arbitrariness into the

procedures and therefore uncertainty. But the Court of

Appeal has gone to an extremity of even demanding a

proper citation of an enabling power being invoked.

Enabling powers are matters of jurisdiction, law and the

court is supposed to take judicial notice of the law. To be

conversant with its jurisdiction and therefore, the tradition

position that procedure is not a master but a servant has

been extremely watered down by the Court of Appeal of

Tanzania. The effect is the occasioning of injustice, in that

a number of cases are determined not on the basis of

substantive right but on the basis of procedural

technicalities in which case the dispute remained

unresolved.

The Effects of Amendments

Article 1313 amendments to substantive law do not have a

retrospective effect. Meaning an amendment in law has no

effect of taking away the right that has already vested in a

person. As a matter of general rule when we talk about

retroactivity of the law, we look forward the law affect the

future and present and not the past. Basic Constitution

principle that you should not take away people’s rights that

they have already had.

Procedural law does not enact substantive right, it relates to

the mode of dispute settlement before a court of law. It

does not concern itself with substantive right, there could

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

be some procedural right but they could not take away

somebody proprietary right.

General rule relating to retroactive to the statute does not

apply. It will only when there is a specific provision which

will declare the law to have a retroactive effect.

As far as procedural laws are concerned the General Rule is

any amendment or change in the law relating to procedure

will affect proceeding which are already in court and

subsequent to that law. Procedural amendments have a

retrospective effect. Example Employment and Labour

Relations Act has taken away jurisdiction matter for

ordinary courts. The Land Act has also taken away

jurisdiction of ordinary courts. Unless the law specifically

provide that it will not have a retroactive act, that law will

have a retrospective act. Section 75 of the Land Act

declares that jurisdiction will be vest in the High Court

Land Division and in the District Land and House

Tribunals. But the Land Act just enact the law relating to

jurisdiction. High Court and District Land and House

Tribunals will have exclusive jurisdiction. Removed from

the general division of the High Court and Magistrates.

The procedure is found in the Land Dispute Settlement Act,

no. 2 of 2002. Provides for the ways jurisdiction will be

exercised by the District and House Tribunals and High

Court Land Division. It is a procedural law relating to the

jurisdiction. Presumption is that, once that Act was enacted

all matters relating to land would have removed from the

RMs Courts and general High Court. Procedural statutes as

the General Rule has a retroactive effect but section 40

makes a specific provision to the effect that the Chief

Justice could extend the period in which…

The principle in Ben Bros Motors v. Patel.14 A case related

to the Security of Employment Act, before enactment of

SEA ordinary courts had jurisdiction over matters relating

to summary dismissal or disciplinary termination. This

jurisdiction was taken away from ordinary courts by section

27 of SEA. Section 28 had to be read together with section

27. This was a case of summary dismissal and it was

pending before ordinary court, the issue was whether the

SEA ousted the jurisdiction of ordinary courts. The

provision in the SEA which ousted the jurisdiction was a

14 (1967) HCD 435

procedural section, it did not affect the right of the party. In

answering that question the court stated as follows:

“When a new enactment deals with rights of action unless it

is so expressed in the Act itself, an existing right of action

is not taken away, however, when it deals with procedure

only the enactment applies to all actions whether

commenced before or after the passing of an act.”

The law which gives a person a right of action creates a

substantive right. An amendment in such a law does not

extinguish an existing right unless it is expressly stated.

Prior of section 20 of the Land Act, a foreigner can own

land. Under the Old Land Ordinance a foreigner could own

land. In 1998, the right was extinguished. The right to own

land is the cause of action. The law enact a substantive

right.

The case is saying there is a possibility for such a law

making a specific provision that the new Act will cover

even the existing right, parliament is the one to decide

whether it should be retrospective or prospective. If the law

is silent on retrospective nature of the amendment then the

General Rule will be applied, however, under the Land Act,

section 20 there was a specific declaration of retrospective.

The case has a 2nd category of statute, that is the statute

which do not relate to right of action but deals with matters

of procedure only. Those are automatically retrospective

unless expressly stated by the law. And this was

commented upon in the case of

Msige v. E. A. Railways Cooperation15 this case held that:

“The general principle seems to be that alterations in

procedure are retrospective unless there is good reason

against it. The reason is that a person’s vested right is not

taken away by procedural amendments. Procedural law has

only one purpose, it is used as a means of settling dispute.

Procedural law does not declare any substantive right

though will be declared in the process of dispute settling.”

Whether an issue of trespass/mortgage is dealt with the…it

does not matter the law remains the same.

Procedural laws have a retrospective effect unless it is

expressly stated because they do not enact substantive

15 (1970) HCD 182

right. Substantive laws have no retrospective effect unless

it is expressly stated.

THE PRELIMINARIES TO CIVIL LITIGATION

Litigation is the last resort to solve the dispute. Before there

are negotiations, the first preliminary is the notice before an

action – a letter of demand. It is a letter written by a

potential plaintiff or his advocate to the potential defendant

laying down his claim, indicating what he is claiming,

asserting the right and making the demand for redress

within the specified period and threatening court action if

those demands are not met. A greater number of

claims/disputes are resolved by demand letters.

For a person to write it he must have a legal right and not

moral right. It asserts a legal right against the potential

defendant and makes a demand for redress on the threat of

court action. It is not provided for under the Code. No

section compels, it is a common law practice which is

followed in Tanzania by virtue of the reception clause. Also

it is by implication in the code, section 30 of CPC. At the

time of pronouncing judgment the court is given power to

award costs to the party. To order one party in the suit to

costs to the other party it is a discretionary power of the

court.16

The General Rule relating to costs is found under section

30(2) of CPC but it is stated in the negative. Normally,

costs follow the event – who loses compensate the winner

because the loser is taken to compel the winner to go to

court. But under section 30(1) the award of costs is

discretionary therefore, there is a possibility that costs will

not follow the event. Sometimes the winner pays the costs

to the loser.

Demand notice serves a very important purpose that it is

used to establish that the defendant was informed about the

claim, he was invited to settle amicably and yet he becomes

stubborn. He compelled the plaintiff to go to court and

therefore, when the issue of costs arise then the plaintiff

will be automatically entitled for the costs. The demand

notice not only intended to establish a litis contestatio, it is

also established that the plaintiff has been compelled to go

16 Section 30(1)

to court. No standard form of demand letter it depends

upon the claim.

2nd STAGE

You have decided to go to litigation, the next question is

which court will you go? Brings to the concept of

jurisdiction. All our courts are established by statutes and

therefore, the jurisdiction is determined by statute. Under

CPC, section 3 only 3 courts are concerned. It defines what

court is and it defines by way of mentioning the court.

The definition is in the context of applicability of the court,

the CPC applies to courts which are mentioned in the CPC.

Section 3 and 2 must be read together.

Jurisdiction: means power, a specific one. It is not defined

under the Code even under the JALA, nor the Interpretation

of Laws and General Applications Act.

Article 108 of the Constitution establishes the High Court

but does not give it its jurisdiction. In the Constitution there

are no provisions regarding the general jurisdiction of the

High Court but Article 107A(1) it declares that the High

Court is the court of records. Where is the provision? The

answer is no. referred to common law. We have the High

Court with no clear jurisdiction. The Constitution in Article

108(1) allows parliament to enact laws which determine the

jurisdiction of the High Court. This is how the JALA was

enacted. It is a court of unlimited civil jurisdiction, both in

the context of territory and also in the context of pecuniary

value of the subject matter.

The RMs and DC are courts of limited jurisdiction, both

territorial and pecuniary of the subject matter. In respect of

DC they are established for a particular district although

Chief Justice may give them a wider territorial

jurisdiction.17 Section 5 the Chief Justice has power to

establish RMs.

As a General Rule these are the courts which exercise

limited civil jurisdiction. DC exercises civil jurisdiction

only being presided over by a district magistrate who has

been appointed by…Not all District Magistrates have civil

jurisdiction.

Jurisdiction relates to power, it is the power to hear and

determine. If one missing you do not have the power.

Power to entertain the dispute, power to decide essentially

17 Section 4 of MCA

values, a power to grant a remedy/relief. Hearing involves

entertainment of the dispute by hearing the parties and their

witnesses. That is called the power to try to dispute.

Section 7 of CPC raises the presumption as to jurisdiction.

Presumption is that all civil courts are presumed to have

jurisdiction to hear and determine civil matters that are

brought before them unless that jurisdiction is

expressly/implied barred. Relates only to civil courts

defined under section 3 of CPC.

How this barred is effected? By a general proposition that

jurisdiction is determinable at the beginning of the case.

Anything done without jurisdiction is a nullity. However,

common law have developed another approach, although as

the general principle jurisdiction is determinable at the

beginning of the trial. A court can start hearing the suit

when it has jurisdiction but in the cause of the trial it can do

things which will oust it jurisdiction.18

This presumption as to jurisdiction under section 7 stands

out of the fact that the court is the fountain of justice.

Article 107A (1) the court is the final authority in

18 See Anisminic’s case

dispensation of justice. Section 7 must be read together

with Article 107A(1). This general proposition is qualified.

Article 107B(2) enacts the principle of independence of

judicially. It is bound by the Constitution and written laws.

Article 107A is the major Article in the Constitution that

declares as the only instrument which has responsibility of

dispensing justice. That Article is not qualified in any way,

any possibility of another instrument to dispense justice

finally and conclusive. The Constitution is the basic law of

the land. No law can supersede the Constitution unless the

Constitution allows it. Article 107A has not allowed

parliament to oust the jurisdiction of the court in the

dispensation of justice and therefore, section 7 of CPC can

be taken to introduce the concept of ouster of jurisdiction in

a situation where…

OUSTER

All civil courts in Tanzania are courts which have

established by statutes and therefore to know the

jurisdiction of a particular court, you must look at the

statute creating it or providing for its jurisdiction. As far as

the High Court is concerned you must look at the

Constitution which established the court and the JALA

which provides for jurisdiction of High Court. As far as

RM and DC are concerned you must look at the MCA

which creates the courts and which gives the courts their

jurisdiction, and generally other specific laws dealing with

specific matters eg. LMA,Probate and Administration of

Estate Act, the Bankruptcy Act, Companies Act.

Jurisdiction is given by statute and can be removed by

statute. That is true only in subordinate courts.(RM)

There are two (2) types of ouster of jurisdiction

i. Express Bar/Ouster

Occurs when a particular statute specifically removes the

jurisdiction of the court in a particular situation. It occurs

when there is a specific provision of a law which

removes the jurisdiction of the court in certain matters.

Statute removing the jurisdiction must be very strictly

interpreted. First of all the Constitution had declared that

courts are fountain of justice and if the statute goes

against the Constitution must be construed strictly. In

case of Mtenga v. University of Dar es Salaam19

Biron J.,

“It is trite to observe that the court is and has to be for

the protection of the public jealous of its jurisdiction and

it will not lightly find its jurisdiction ousted. The

legislature may sometimes does I’m afraid too often oust

the jurisdiction of the courts in certain matters but for the

court to found that the legislature has ousted the

jurisdiction, the legislature must state so in no uncertain

and in the most unequivocal terms.”

The court recognizes the Constitution position that it is

the fountain of justice, it is suppose to protect freedom

and right of the public. And therefore, it recognizes the

fact that it has the duty to make sure that its role is not

easily removed. But at the same time it recognizes that

courts are established by statutes and therefore there

could be some statutory interference with its jurisdiction.

When there is such interference then the statute making

the interference must be very clear not open to any

ambiguity.

19 (1971) HCD 247

ii. Implied Bar/Ouster

The law is not categorical, not clear but that does not

mean that the law is ambiguous. Mtenga’s case discussed a

situation where law is ambiguous. An implied bar does not

contain ambiguity. Where an Act of parliament purports to

oust the jurisdiction then it must be very clear. The Act

should be capable of interpretation without any doubt.

When we are looking at implied bar, is when the law

creates a right and provide an institution with exclusive

jurisdiction. Section 175 of Land Act creates a High Court

Land Division and gives it exclusive jurisdiction over land

matters. There is a problem, the High Court is created by

Article 108, the JALA empowers the Chief Justice to make

regulations relating to the administration of the High Court

and the CJ has exercised his powers by enacting a High

Court Registry Rules. They provide for the establishment

for the registry of High Court at different places of the

country. There is one High Court and known as the High

Court of the Republic of Tanzania. Those established by

statute. It exercises jurisdiction over the country. Under the

High Court Registry Rules, the CJ has established various

sub registries which exercise local jurisdiction over the

zones in which they are established. Eg. DSM, Tanga,

Tabora, Mwanza. There is one Registrar of High Court and

district registrars.

Zanzibar Article 114. It has concurrent jurisdiction with

the High Court of Tanzania as far as matters are concerned

in Zanzibar. The suit should be brought at the High Court

for Zanzibar. The High Court of Tanzania does not exercise

jurisdiction in Zanzibar except for election matters brought

under Election Act, 1995.

Under the High Court Registry Rules another registry was

created, that is the High Court Commercial Division which

deals only with commercial cases and was created by Chief

Justice under the power given to him under JALA.

There are two situations which are unique, the Land

Division of the High Court is not created by Government

Notice, it is not created under the High Court Registry

Rules likewise the Labour Division. The High Court Land

Division is created under section 175 of the Land Act, 1999

while the Labour Division of High Court is created under

section 94 of Employment and Labour Relations Act, 2004

read together with section 50 of Labour Institutions Act,

2004.

The parliament took the role of the Chief Justice to

establish registries of the High Court by establishing the

Labour Division and Land Division.

Why?

It is in the circumstances those two divisions were created.

Labour and land are the most important elements in the

economic of the country. Politicians try to control land and

labour. The politicians are trying in getting away of the

control of the court, Article 107A – fountain of justice and

Article 108B – Independence of judiciary.

Registries are synonymous to divisions.

In the context of ouster, the Land Dispute Settlement Act

read together with the Land Act or the Labour Institutions

Act read together with the Employment and Labour

Relations Act do not specifically declare that matters

relating to land or labour shall not be entertained by the

other courts. But by implication because such matters are to

be entertained exclusive by the related divisions of High

Court which have under their administrative tribunal, the

jurisdiction of the other courts is automatically ousted. But

this is ouster by implication. The law is silent in respect of

other courts while other institutions relating to particular

problem have been established. Implied arises where

institutions for dispute settlement are established by

statutes and statutes are silent on the role of ordinary

courts. The establishment of these courts must be in such a

way that they are given exclusive jurisdiction, if not there is

a presumption that they can have concurrent jurisdiction

with ordinary courts. Where there is no absolute bar there is

a presumption of the concurrence of jurisdiction. Where a

tribunal is given exclusive jurisdiction the implication is no

other tribunal can entertain the dispute. Michael Mwailupe

v. CRDB20 MJ. Kileo:

The issue: Whether the High Court Land Division has

exclusive jurisdiction in matters relating to mortgage.

The plaintiff filed a case concerning mortgage, the

defendant raise an objection to the effect that a mortgage

was a commercial transaction. The court over ruled the

20 Land case no. 7 of 2003

objection by holding that all matters relating to land where

within the exclusive jurisdiction of Land Division of the

High Court.

Dunia Worldwide Ltd. v. PSRC & another21 related to sell

of factory assets including immovable properties and it was

conducted by tender. Objection was taken to the effect

because the assets concerned a factory which was

permanently affixed on land then that was a land dispute so

commercial division was not competent to entertain. MJ.

Mjasiri over ruled the objection and said although it was a

sale of land it was a commercial transaction by tender and

therefore the commercial division of the High Court has

jurisdiction.

Tambueni Abdallah & 89 others v. The NSSF22 The case

was looking at Industrial Court Act and the issue was that

whether ordinary courts have jurisdiction over industrial

disputes. The court of Appeal held that the Industrial Court

now Labour Court have exclusive jurisdiction over matters

relating to industrial dispute.

21 Commercial case no. 58 of 200522 Civil Appeal no. 33 of 2000

Although under the Industrial Court Act there was no

express provision relating to ouster of the jurisdiction of the

court.

Whether it is an express bar or imply bar depends upon the

statute you are dealing with. You must look at the words of

the statute. In Tanzania there has been a movement of

creation of administrative tribunals to settle disputes

relating to certain areas in our country eg. Labour, land, tax

with an appellate system which goes to a specific division

of the High Court or tribunal presided by the judge. They

do not expressly oust the jurisdiction of ordinary courts but

by creating exclusive jurisdiction in these tribunals function

in the ordinary courts is implied removed. Hence when

considering section 7 of CPC one must think more of

implied bar than express bar. Express bars are limited.

Concurrent jurisdiction – all with the same original

jurisdiction. Block appellate right. Section 13 of CPC – rule

of procedure and not jurisdiction. Under CPC the lowest

court is the District Court with regard with pecuniary

limitation.

Doctrine of Res Judicata and Res Sub Judice.

Res means thing, judicata comes from the word judice

which means before the court. That has been before the

court.

Res judicata stated as a doctrine of common law but it has

been enacted into CPC under section 9. It is a doctrine

which prevents a party to bring a fresh suit on the same

subject matter and against the same defendant(s) when the

dispute has been already a subject of litigation before a

court of competent jurisdiction and that court has already

made a final and conclusive determination. In other words

is a doctrine that bars a relitigation. A person is not allowed

to invoke a jurisdiction of a court as many times as he

wants. The doctrine is centred on one public policy, interest

Reipublicae Ul sit finis Lituum that is it is the interest of the

public that litigation should come to a speedy end. Why?

Disputes weaken the society, bringing insecurity as far as

property is concerned. the state is there to promote

production and not to discourage production by

entertaining prolong litigations. Also the doctrine of res

judicata is intended to maintain the dignity of the court,

works hand in hand with stare decise (precedent)

When several cases are brought between the same parties

on the same issue(s) base on the same evidence(s) there is

likelihood of having inconsistent decisions on the same

dispute that will not create confidence of the court, and that

will not create certainty in the law. The law must be

certainty, predicts of the consequence.

Lockyer v. Ferrman23 gave us the policy behind the d

octrine of Res Judicata. The case said Res Judicata is based

on two points of policy. One it is intended to prevent

hardship being caused on the party who is sued. Rich

plaintiff(s) may use the court system to harass poor

defendant(s). The doctrine is based on the principle that no

person should be vexed twice on the same matter.

Litigation is not intended to torture people but legal relief.

Res Judicata in criminal cases it relates to 3 pleas,

Autrefois convict – already convicted on the same facts,

autrefois acquit – already acquitted on the same facts,

pardon. They are based on Article 13 of the Constitution.

23 (1867) L. R 247

Secondly, it is based on public policy that there must be an

end to litigation. “The rule of res judicata may thus be put

upon 2 grounds, the one the hardship to the individual that

he should not be vexed twice on the same cause and the

other public policy that it is in the interest of the state that

should be an end of litigation.”

The case is supported by the case of Dillard v. McKnight.24

The doctrine is based on sound public policy that there

should be an end to litigation. People had have one fair trial

may not have an issue of adjudicated upon for the second

time. It prevents inconvenience upon parties. Res Judicata

therefore has got three roles to play:

i. As regards the parties, they should not be vexed twice.

They should be allowed to go and engage in production

activities. They should be saved from embarrassment of

being in court permanently for the same issue(s). On the

part of the court, multiple actions between the same

parties and on the same subject matter wastes the time of

the court. The court has got to hear evidence(s) and can

not do that repeatedly on the same case. Multiple actions

24 11 AIR 835

between the same parties on the same subject expose the

court to the possibility of making conflicting decisions.

This invalidate the dignity of the court. On the part of the

state internecine actions weaken society, affects

production and that contradict the main aim of the state.

“Development in the law of Res Judicata” 65 Havard Law

Review 818 Mauro Capallatti

Besides putting the other party to the expense of 2nd trial,

and both him and his witness to that inconvenience

multiple actions waste the time of the court especially

intelligent evaluation of the background of the case requires

covering the same ground gone over before. Where there

are several cases between the same parties and on the same

subject matter, the same evidence is going to be needed and

therefore repeatition of the same thing at the different time.

That is expensive, time wasting, boring.

Howett v. Tarte25 developed a position to the effect that the

doctrine of res judicata relates to the doctrine of estoppel. It

is a doctrine which prevents a party from questioning the

decision of a court other than by way of an appeal. And the

25 10 C. B (NS) 813

case of Humphries v. Humphries26 commented on the

decision of Howett v. Tarte (supra).

This is in accordance with justice for while interest

reipublicae that litigation should seize so far as the matters

directly adjudicated upon are concerned its not expedient

that litigants should be deprived of independent defence

though over sight when matter can again properly be raised

in court.

There are some circumstances when the law will allow the

bringing of a fresh suit, the case is equating the doctrine as

the doctrine of expedience that is not vexing people twice

on the same subject matter but should not be used at the

expense of justice. Therefore, the doctrine may be

misapplied where an important point of law was not raised

or judgment was obtained by fraud which is no judgment

and therefore will not bar relitigation. A judgment issued

by a court with no jurisdiction is no judgment and can not

be used to bar relitigation.

Judgment obtained in technicalities of the law is no

judgment. But expedience should not be placed aside

26 [1910] 2 KB 531

easily. The rule of expedience is based on the desire to give

stability to court decisions. A judicial system which does

not guarantee the stability of its decision is not worth of its

name.

Edward W. Clearly: Res Judicata re-examined. 5 Yale Law

Journal 339 at p. 345

“Besides wasting the time of the courts and litigants to

permit multiple actions leaves undesirable uncertainty in

the economic affairs of those subject to them, this the social

interest in preserve free maintainability of property can be

undermined by allowing repeated litigations of the same

title on various grounds existing at the time the first action

was brought. Effective operation of courts in the social and

economic scheme requires their decisions have the respect

of and be observed by the parties, the general public and

the courts themselves. Accordingly insufficient weight

prior decisions encourages disrespect and disregard of the

courts and their decisions and invite litigations.”

We are looking at the stability of the economy, stability of

the court’s decision then you must look at the respect of the

court. Authoritative decision. Ram Dev. Malik v. Albert

Callow.27 Those are matters relating to the doctrine

THE DOCTRINE

Has its origin in a very old case, the Duchess of

Kingstone’s case.28 There were proceedings against the

Duchess of Kingstone for annulment of his marriage on the

ground of adulterous and the court annulled the marriage.

Subsequently the Duchess was brought before an

Eclesiastical court on charges of bigamy. The issue was

whether the charges of bigamy could stand in views of the

fact that is pervious proceedings that the court had annulled

his marriage. The court came up with two propositions:

i. A judgment of court of concurrent jurisdiction on a point

is as a plea bar and as evidence conclusive on any matter

between the same parties on the same subject matter

coming either directly or corattelary before the same

court or another court of concurrent jurisdiction.

A person can not raise the issue of a judgment of a court

of competent jurisdiction before the same court or 27 [1958] EA 9928 164 ER 175

another court of competent jurisdiction for purpose of

questioning it.

Judgment of courts of exclusive jurisdiction is as a plea

also a bar and as evidence conclusive. Res Judicata applies

in all circumstance, all courts does not have objection. The

issue is whether the court has competent jurisdiction.

The case has the following to say:

But neither the judgment of concurrent or exclusive

jurisdiction is evidence of any matter which came

corattelary in question within their jurisdiction no any

matter incidentally cognizable by argument from the

judgment.

You can not raise a judgment to question it so long as it is

directed clearly.

The doctrine of Res Judicata is not a doctrine of procedure,

is a doctrine of evidence. Is more related to the doctrine of

estoppel than to procedure itself. In order to know the

previously decided suit is the same as the present suit you

must look at the pleadings – the record. It goes to evidence

than procedure.

Bynoe v. Bank of England29 restated the doctrine of Res

Judicata, said that so long as there is a decision which has

not been reversed, a party shall not be allowed to bring the

same cause of the same case. It used the word conviction.

The judge had the following to say:

“There is however one broad principle lying at the root of

the whole matter to which we drew attention as long as a

conviction stands no one against who it is produceable shall

be permitted to aver against it.”

A conviction which is produceable (doctrine of evidence –

you produce evidence), you can not aver against it/question

it

It is a doctrine of preclusion (prevention), prevented from

arguing against it. This is what under the Law of Evidence

as estoppel by records.

Ord v. Ord30 is the case which related the doctrine of

estoppel to the doctrine of Res Judicata. Estoppel prevents

you from pleading otherwise. Preclusion eliminates certain

pleadings. In the case the judge stated as follows:

29 [1902] 1 KB 46730 [1923] 2 KB 432, 439

“The words res judicata explain themselves if the race

(thing) actually and directly in dispute has been already

adjudicated upon of course by a competent court it can not

be litigated again. There is a wider principle often treated

as covered by the plea of res judicata that prevents litigants

from relying on a claim/defence which he had opportunity

of putting before the court in the earlier proceeding and

which he chose not to put forward. The litigant must admit

that which has been declared judiciary to be the truth with

regard to the dispute in order to see what the fact is that he

must admit the truth of one has to see what is the precise

question and fact that has been disputed and decided. You

look at the record and see the judgment.

Marginson v. Blackburn Borough Council31 is a case which

put forward a proposition that a doctrine is a broader rule

which prohibits the reassessing of a cause of action which

has been litigated to a fresh. You look at the centre of

dispute and itself. Cause of action – asserted by one party

and denied by the other party. Whether that cause of action

31 [1939] 2 KB 426, 437

was in agenda in a previous suit, if not then it can not be

res judicata.

In other words, a person is prohibited from bringing into

court a dispute which had been already determined. Ord’s

case (supra) told us is a doctrine of evidence. How do you

know it was an agenda? By looking at the records and that

is why it is called a doctrine of evidence and not procedure.

Marginson’s case says it is estoppel by res judicata, a party

can not reopen what has been already closed. He is

estopped from raising it again, it is estoppel by records.

Point that the doctrine is a doctrine of evidence is further

elaborated in Humphreys v. Humphreys.32 The decision is

important for the proposition that the doctrine is found on

the doctrine of estoppel. The judge stated that:

“Estoppel is merely a rule of evidence and if a plaintiff can

object to the reception of evidence on a particular fact

because it is an issue which was properly raised by him and

was one could have been traversed/opposed by the

defendant in a former action and has been determined in the

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

32 [1910] 2 KB 531, 536

for disallowing the objection but if there is no such definite

issue then the objection will fail.”

Major points from the case:

The doctrine is a broader rule of evidence and to this

broader rule of evidence prohibits/bars relitigation over

matters which have already been a subject of litigation and

conclusive decision by a court of competence jurisdiction.

A judgment of a court of competent jurisdiction is binding

upon the parties falling the same capacity or upon persons

litigating under the part’s title. Look at the nature of the

dispute.

Res Judicata is not binding upon the judgment of the court

or parties who were not parties to it. You must look at the

identity of the parties. It will bind if the parties are the

same.

Barr v. Jackson33 is an elaboration of the decision of the

Duchess of Kingstone’s case. The court stated as follows:

The rule against repeating a matter adjudicated is subject to

those restrictions that however essential the establishment

of a particular fact may proceed on them as established and

33 [1842] 1 Y&C CD 585; Vol. 41 ER 754

however binding and conclusive the decision may as to

immediate and direct object be those facts are not all

necessarily established conclusive between the parties and

that either may again litigating them for any other purpose

as to which they may come into question provided the

immediate subject of the decision being not attempted to

withdraw from its operation as to defeat its direct object.

Circumstances you can use a judgment of previous case but

not for the purpose of defeating the purpose. For the

purpose of establishing what transpired in the previous

decision. You can question the judgment on the appeal.

Elements in the Doctrine of Res Judicata

There are four elements which must co-exist in order to

bring the doctrine into play:

i. There must exists two suits, one suit be pending and

another suit must be decided.

A suit is no defined in the CPC and neither in the

Interpretation of Laws and General Clauses Act but

generally it is a proceeding of civil nature but not all

proceedings of civil nature are suits. In order to know

you must look on how it commenced. There are several

ways of starting proceedings in a civil court:

Filing a plaint/chamber summons supported by an

affidavit

Filing an originating summons

Filing a notice of motion

Petition/memorandum

Under the Bankruptcy Act, Probate and Administration

of Estates Act, Companies Act, LMA one files a petition.

Under the Law Reform Fatal Accidents & Miscellaneous

Provision Act when one wants to file application for

prerogative orders uses a chamber summons supported

by an affidavit and a statement. Also originating

summons are used under the Basic Right and Freedom

Enforcement Act and in Equity. In laws relating to

declarations, what is going to be used depends upon the

law you want to use.

The CPC has only one form of commencing civil

proceedings, that is provided under section 22 read

together with O. IV r. 1.

O. XLIII r. 2 – Chamber summons supported by an

affidavit. Applications for injunction, prohibition.

Application is a proceeding of civil nature but it is not a

suit because it does not commence by a presentation of a

plaint. There is a proviso which allows the making of

oral applications or obtaining orders of the court by the

party filing a memorandum of agreement on issue.

Application may be in writing or orally. In writing must

be by chamber summons and supported by affidavit.

They are oral with the leave of the court.

Section 9 of CPC – Res Judicata relating to a suit or an

issue. It is a suit if brought by a way of a plaint. You

look at the cause of action when you want to apply the

doctrine to a suit. But under section 9 there are some

rooms to look to an issue rather than a suit. Generally

therefore one must look what the court decided. It would

be the cause of action/issue relating to the proceedings.

That is why even matters determined in applications

could be the subject of the doctrine.

When we look at the concept of a former suit, that has no

reference to the time of filing it, does not mean the first

one to be filled. But former suit (section 9) has reference

to the time of decision. Look at the date of decision and

not at the date of filing. It is this decided case which will

bar the court from trying the case which is pending. The

time is in relation to the decision.

ii. Competence of the court.

Both suits must be before courts of competence

jurisdiction. The consequences of filing a suit in

incompetent court are that any proceeding will be

declared a nullity, as good as no decision at all. It can not

bind anybody. Even parties can not consent to be tried

with the court of incompetent jurisdiction. Jurisdiction is

a question of law and when a court assume jurisdiction

which does not have everything is a nullity.

A previous suit which has been decided by a court

without competent jurisdiction can not operate as res

judicata and bar the subsequent suit from proceeding.

This second element is more relevant in respect of the

previous suit than in the subsequent suit because what

bars the subsequent suit for proceeding is the previous

suit. Where the pending suit is before a court with no

competent jurisdiction it will be decided on the issue of

jurisdiction and not res judicata. Jurisdiction is

determined at the beginning.

Competence of jurisdiction as a matter of general rule is

relevant only in respect of the previous suit. Jurisdiction

could be of a court of concurrent or exclusive

jurisdiction. So long it is a judgment made by a court of

competent jurisdiction the doctrine will be applied when

the pending case is on the court of concurrent

jurisdiction, exclusive or the same court. The issue is

whether the previous suit was decided by a competent

court.

MCA does not provide for the definition of a court, there

is establishment of court. Section 3, 4 and 5. The

definition of court under one law is contextual, depends

upon the context in which the word is used. To know the

meaning you must look at what is described as court in a

particular law. For the purpose of CPC, the court will be

DC, RM’s C, HC (Section 3). Decisions of Primary

Court do operate as res judicata once it is established

that a Primary court was competent to try that issue. But

Administrative tribunals are not courts and there

decisions can not operate as res judicata in respect of

matters which are pending in ordinary courts. The

doctrine relates only where there are courts within the

meaning of the law. Whether the court in the 2nd suit is of

competence jurisdiction or not it is a question of law.

You look at the law creating the court also the law giving

it jurisdiction, and subject matter of the litigation. It is

the court which is to decide on whether the previous

court was of competent jurisdiction.The question is

whether the person is authorized to receive a plaint. 21st

Century Industries Ltd. v. Sugar Board & others34, the

court was called to interpret the court of Appeal Rules

which require the Registrar to endorse documents

presented to the court of Appeal. Earlier point the

Registrar has to personally endorse the documents

presented but in this case Ramadhan J. as he then was

came to different conclusion. Endorsement is not

34 Civil Appeal no. 58/2004

necessary to be done by the Registrar personally. It can

be done by a personal authorized by the Registrar and

acting on behalf of the Registrar.

Use document by anology when the presentation of a

document is to be made to court the one to receive it should

not necessarily to be the presiding officer of the court. Any

person authorized could do that.

The test whether a person is authorized is whether he has

employed as a Registrar Officer in that particular court. If it

is YES commences the presentation.

Next question, what time and place can a presentation be

made? It is for the purpose of the law of limitation. No

provision under the code which says that the plaint must be

presented during office hours. The assumption is that a

plaint is presented at any time provided the person

receiving it accepts it. The code is also silent as to the place

of presentation. The court is not a building, presiding

officer plus court’s seal and clerk make a court. There is no

rule which prevents a judge from entertaining a suit while

he is at home. The case of Kitwana Kondo, Mapigano J.

when he was at home issued an injunction. Therefore we

are to be guided by Indian authorities which interpretation

of the provision is in parimatelia with our provision

OIVR1. We do not have authority on this. In India; Ratan

Javakisan Shekal v. Bapu Hiraji Kunbi.35 Point on the time

and place of presentation. The court said, “The Judge can

accept the plaint out any hour he chooses though outside

office hours and at any place he chooses. I see no reason to

doubt that the clerk of the court who is a dully constituted

officer of a court with the power to accepts the plaint, can

receive that plaint outside office hours and outside the court

buildings, although I don not for a moment suggest that the

clerk is bound to accept the plaint out of court hours”.

A plaint can be presented to the proper officer at any time

and place. OIV does not prevent the presentation outside

court building or working hours however, the officer to

whom the plaint is presented has discretion, he can refuse

to receive the plaint outside working hours and court

buildings. By receiving the plaint outside, the clerk is not

committing any illegality. The suit would have

commenced, it does not make the suit incompetent.

35 AIR Vol. 24 Bombay 1937, 25

There are two categories of officer authorized to receive

plaints;

i. Judicial Officers: These are judges, magistrates and

Registrars can receive plaint any where and at any time.

They constitute a court.

ii. Ministerial Officers/Administrative Officers

Indian authorities have come up with a proposition when a

plaint is presented to the ministerial officer, the

presentation cannot commence immediately.

Also where a formal step must be taken, the suit does not

commence until that formal step has been taken. For

example, when it is necessary to have a consent, the mere

presentation of a plaint does not have the effect of

commencing the suit or there is a need of certificate e.g.

Matrimonial proceedings for dissolution of marriage cannot

commence unless there is a certificate of Conciliation

Board and therefore a presentation of the certificate to the

court is conditional.

Presentation must be accompanied with the payment of

fees, the mere presentation of the plaint does not commence

a suit, but the court has power to allow the plaintiff to sue

in forma pauperis that is to sue as a pamper (poor person).

So long as the leave is not granted the mere presentation of

a plaint does not constitute the commencement of the suit.

This was held in the Indian case of Ponnusami Chittiar v.

Naicker.36 In this case Wallace J, made the following

observations; “It is clear that a suit commences with the

presentation of a plaint, this where leave of the court is

required. The suit is not deemed to have commenced if that

leave was not obtained”.

Proper Presentation:

Provisions of OVI and OVII. The plaint is the 1st document

is a suit, it is a pleading and therefore it must comply with

general rules of pleading provisions of OVIIR1

It must have a title containing the name of the court and

place where the court is sitting. Names of the parties,

plaintiff and defendant. It must be precise and concise

statement of the material facts (Short and clear) giving rise

to a cause of action/complaint. These are the facts if

opposed by defendant must be proved by the plaintiff in

order to be entitled to relief.

36 AIR (Vol. 16) 1929 Madras 480

A plaint also must make a statement of the value of the

subject matter, pecuniary value and an assertion that the

court has jurisdiction to try it. A plaint must contain a

prayer for a relief, what court should do for you. OVIIR1

must be read together with OVI in particular it must

comply with OVIR14 and OVIR15 which requires the

pleading to be signed by the pleader, a plaintiff/his

advocate/agent. The signature is not an oath like in

affidavity. It is an indication of the bonafides of the action

that the plaint is presented in good faith. OVIR14 provides

that…party and his advocate. There has been some

arguments that rule is mandatory. Basil Pesambili Mramba

v. Mwananchi Publishing Co. Ltd.37 Kalegea J., said “once

a plaint is signed by the party, it is properly before the court

that although the provision of OVIR14 appears to require

the advocate also to sign but in essence they cannot be

mandatory, the pleading is complete when it is signed by

the party himself. The plaint must also verified, there must

be a statement to effect that all the statement is true to the

knowledge of a person verifying.

37 Civil Case No. 164/2007

Verification is not an oath, therefore cannot be held of

perjury. Verification is done by the parties themselves or a

by a person who to the satisfaction of the court has

knowledge of the fact. When the plaint contains all these

elements it is a proper plaint. It can have technical defects

but if you can identify all these proper elements is a proper

plaint.

Proper presentation involves a presentation of the

document which on its face complies with the rules of

pleading. Any other document is not a plaint and therefore

its presentation will not be taken as proper presentation for

the commencement of the civil suit, only when the

document complies with provisions of OVIR14, OVIR15

and OVIIR1. they are mandatory requirements

Princeline Ltd. v. The Trustees of the Port of Bombay38 the

judge who interpreted OIVR1 had the following;

“OIVR1 prescribed that every suit shall be instituted by

presenting a plaint to the court or such officer as it is

appoint on its behalf, it further prescribed that every plaint

shall comply with the rules contained in OVI and OVII as

38 AIR (Vol. 37) 1950, Bomb. 130

far as they are applicable, in order therefore a plaint can be

properly be presented to the court it must comply with the

provision of OVIR14 and OVIR15 and it is only when a

plaint which complies with these rules so far they are

applicable is presented to the court that a suit can be said to

be instituted in the court. Strictly speaking therefore unless

and until a plaint is presented to the court complying with

the provision contained in OVIR14 and OVIR15. It cannot

be said that a proper plaint is presented to the court by a

party. In order to have a suit commenced, there must be a

properly drawn plaint.