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. very person has got two capacities. !ublic capacity as a member of a society, this relates to a community. This is a capacity qua citi"en. That capacity is the one which determines his duties to the state and that is a relationship normally handled by public law. !ublic 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 #riminal !rocedure Act. $hen there is a dispute between state and individual in his public capacity then that dispute is settled by the procedures laid down under #!A. There is a certain capacity, capacity qua individual%private life relations. There are laws which relate to civil relations. #ivil is not defined under law dictionaries, we use ordinary dictionary meaning private relations between individuals. &isputes 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. 'is means a dispute ('is inter partes)

'is is not only inter partes, it must be contested and this is known as 'itis #ontestatio and when you go to court you get what is known litigation. 'itigation is the act of invoking the *urisdiction of a tribunal of competent *urisdiction 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 #ivil !rocedure #ode. History of civil litigation. There are four stages in the history of civil litigation+ ,. #ommunal Stage It was characteri"ed by the popular assembling which comprised of the members of the community including the disputants. The popular e-isted 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. !roperty holding was communal, there were no absolute right to property, to the contrary there was relative right . usufructuary right. /nce right to property depended on other people right to the property. !eople were interdependent one another and therefore they have to remain friends. &isputes 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 !alaven) 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. &isputants were members of the same community. If they belong to different community there was a self help. Self help did e-ist as long as there was community but in self help community do not become stable. #ertain 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. $hen the dispute is between the non property class the procedures used were known as the *udgment of 0od. It was believed that 0od would intervene to show who has the right. 1nder the category you had ordeal, torture, oath. !roperty class they challenged one another by what was called duel. /n 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 *udgment form 0od that he has no right. $hen feudalism was at its peak, movement from physical *udgment to logical *udgment. 2udgment based on evidence. The feudal lords obtained permission from the king to hold courts in their areas and they were paid by the litigants. 'itigation became one source of revenue to the rulers. There was sufficient surplus to maintain a class of people who speciali"ed 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. 3or the first time the role of the court is seen. !arties 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. 3ive 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 e-cept for the beer. The assembly operated on the basis of *udicial knowledge. 1nder the inquisitorial there was permanent court as a source of revenue, independent of the community and does not know the e-istence of the dispute until it is before it. &oes not know the evidence till it makes inquiry. Inquisitorial . 2udicial ignorance, &eclaration of absolute right #ommunal . 2udicial knowledge, Interest in the future The popular assembly stage it was a stage when the assembly was active% *udicial activism. In the inquisitorial system we see an amount of *udicial activism when the parties are also involved in presenting the evidence while in the stage of act of 0od there was *udicial inactivism. Tribunal was there to regulate the fight. /ur system under the #ivil !rocedure #ode 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 emphasi"es on the passive role of the court. The court assumes the attitude of neutrality and therefore there are basic principles which adversarial follows4 1. Party prosecution !arties 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. 5eason+ They are the ones who are interested in the sub*ect matter of litigation. They are the best defendants of their own interests. The court operates on the basis of *udicial 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 2ones v. 6ational #oal 7oard, 'ord &enning drew the picture of adversarial system and he stated as follows, 8'et the advocates one after the other put weight into the scale. The nicely calculated less or more but the *udge at the end decides which way the balance tilts be it even so slightly so firmly is this established in our law that the *udge is not allowed in a civil dispute to call a witness who he thinks might throw some light on the fact9. T ree !a"or ele!ents of #$versarial %yste!
,

[195] All ER 155

,. 1nder 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. &. 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. :ence they are the ones who mostly active in process of civil litigation. 7ut you can not have the weight unless you collect them and hence there is a third principle '. 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 sub*ect matter. The two principles (;<=) have some minor principles. 7ecause 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. 3or e-ample /rder > 5ule , of the #!#, the defendant served with the plaint may file a written statement. 5ule ?, the right to decide what to do but it is not e-ercised it is deemed to have been waved.

1nder party prosecution parties are free to wave their procedural rights. The calling of witnesses is the duty of the parties, /rder ,@ 5ule ,>. They have the burden of proof, the court comes in to facilitate the calling of witnesses. /rder ,@ 5ule ,+ !arty may apply to court for witness summons but he may wave his right. It is the one who should pay the e-penses 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. Aou 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. !roceedings in our courts are viva voce that is by way of mouth. 7ecause 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 /rder ,> of #!#. -amination of witnesses by the court orally . 5ule B Aou can not have adversarial system without orality and mediacy. /rder ,> 5ule > requires the *udgeCmagistrate to make a recordDof a witness. There are some circumstances when there is documentation and immediacy under adversarial system as adopted /rder ,E is an e-ception to the general rule that evidence must be oral and presented before the court. 5ule ,% the use of affidavit evidence. The witness is not before the court, the court presented with a document. 6ow we move from orality to documentation. Also /rder ;@ 5ule , allows the court to issue commission to e-amine witnesses. The witness will be e-amined 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 e-ception which should be allowed very rarely. Important+ The adversarial system emphasi"es on the active role of the parties as opposed to the passive role of the court. mphasi"es on orality of the proceedings as opposed to documentation, emphasi"es on mediacy . the interaction of the court with parties and witnesses as opposed to immediacy which emphasi"es on indirect contact between the court and parties. To what extent does the adversarial system guarantee access to justice? Access to *ustice is a right which is in Article ,=(@) of the #onstitution. verybody has a right to a fare hearing. :owever access in the court meets certain assumptions, to decide one must know his right. $hen there is legal illiteracy there is no equal access to *ustice 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 >FF advocates and most about E?G are in big cities, most litigants are in rural areas. Host people do not know their procedural rights. Honey is the problem, legal assistance is e-pensive and few can afford them. Access to *ustice in the cities is not universal.

The adversarial as imported does not guarantee equal access to *ustice and our courts have tried to modify it to suit our local conditions. /ur courts have taken position that courts in Tan"ania should play the assistant role, that should be a layman lawyer should assist the parties. Simon Chitanda v. Abdul Kisoma; Iukima A. 2. had the following to say4 8$hen the parties to a suit are layman conducting their own case the trial court should scrutini"e the pleading and in general furnish any necessary guiding9. The court should assist the parties. John Magendo v. Govani= as per 7iron, 2. A child knocked by a car in Horogoro, @ years later his father filed a case in his own name. The defendant rose an ob*ection of time barred. Hagistrate dismissed the case. :e castigated, court proceedings are serious matters and not games. It was the duty of the court to advice the party of the law. The Manager Pars Banafish & Industrial Trade Co. v. Sa ad B. Kere!alaB Hsofe 2. In this case Hr. 5obert a layman ought to have guided by the court where possible or necessary. Adversarial had undergone *udicial modification as the three(=) cases show. In 2A'A courts are directed to apply principles of common law by modifying them to suit our conditions.

; = B

[1973] L.R.T 11 [1973] L.R.T. 60 [1996] T.L.R. 344 at 347

!rocedure is the reflection of attitude of a society towards disputes. Hauro #appellati+ Ideas trend in #ivil 'itigation J,EK,L @, Hich '. 5ev. !rocedures are the meeting point of ideas, conflicts and it is the cape of good hope through which *ustice is reali"ed in a spint and cheapway and it is cape wrath where e-perience may lead into decisions not favourable to a litigant. !rocedure it is a balance between what is good and not good for the society. It is valid choice which reflects society attitude. !rocedure in communal society differ from urban society. Social values in communal differ from urban. #(#TO)* O+ CIVIL PROCEDURE CODE #!# is divided into two parts. Hain part is the A"t itself "om#rises of $%$ se"tions. Sections enact the enabling position what can be done in civil litigation. 0ive the court procedural powers. The main Act does not show how the powers of the courts are invoked. 0ives general principles but not mechanisms to apply procedural rights. -ample+ Section ;; of #!# . #ommencement of a suit by presentation of a plaint. Section @> . Interlocutory application made in the course of civil litigation. Se"ond Part "om#rises of t!o s"hedules . ,st schedule comprises of /rders and 5ules. Is the schedule which shows the procedures of how enabling powers given by the main Act are put into action. /rder K . nature of the plaint. /rder IM . procedures of presentation to the court. very section in the Hain Act there is a corresponding /rder and 5ule in the , st schedule. 6o operation by the main Act without ,st schedule. The ;nd schedule contains 5ules of Arbitration. They are also brought into play when court orders arbitration in the cause of civil litigation.

Authority+ In India, Sambogh v. Sunder?, it says that where the main part of Act containsCcreates 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 #!# itself. A schedule to an Act is not part of the Act (0eneral 5ule). There is an e-ception enacted under section >F . the rules contain in the ,st schedule and ;nd 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 #ivil !rocedure 5ules were enacted by parliament and were taken to be part of the Act. ;nd unique situation, section >, the #hief 2ustice is declared to be a rule making authority in respect of ,st and ;nd schedule. Initially 5ules were made by the parliament. 0ives power to amend, modify, annul or to replace them. Is the subsidiary legislative authority for the purpose of , st and ;nd schedule to the Act. Heaning+ itNs an e-ception situation whereby a subsidiary legislative power is given authority not only to modify but to repeal and replace 5ules enacted by the parliament. !arliament enacts general 5ules but specific is left to the court. Section >, must be read together with section >;. Section >; enumerates the areas in which #hief 2ustice can make 5ules. Those areas cover the whole ,st and ;nd schedules. Also section >, must be read together with section ,F,. &istinction between section ,F, and >; is ,F, relates to forms, type of document which are to be used in courts while section >; relates to procedures. Section ,F, empowers #hief 2ustice to prescribe forms which are to be used in the process of civil litigation. 1nder #!# no forms have been prescribed different form
?

Oan"ibar &ecree where there are

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

prescribed forms. There is a vacuum under #!#, it is silent. $e must go back to common law procedures. The forms which were used by :igh #ourt of ngland by the reception clause date are to be used by the Tan"ania courts.@

CO(%TRUCTIO( O+ THE CIVIL PROCEDURE CODE Start by the ma*or premises, #!# does not enact substantive right it simply enact procedural right. &oes not vest any right to a litigant. &oes not give or take away any property from any litigant. Aimed at regulating procedures. It is a procedural statute and not substantive. 0eneral rule where a law affect the substantive rights of the citi"ens that law should be strictly interpreted. 'aws affecting procedures should not allowed to be masters, are hand maidens . servants in the process of administration of *ustice and therefore they should be interpreted in a way they will broke *ustice. Iron & Steel!ares &td. v. C. '. Mart(r & Co.K and Kendal v. )amilton> 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 *ustice, are not e-pected to broke fair administration of *ustice. 'ord !ences 8!rocedure is but a machinery of the law, after all a channel and means whereby law is administered and *ustice reached. It strangely depart from its proper office where in the process of facilitating it is permitted to obstruct and even e-tinguish legal rights and this made to govern where it ought to subserve. It does not give right or e-tinguish a right.
@ K >

Article (3) o! "ALA (1956) 3 EA#A 175$ 177 [197%] 4 A# 504 at 5 5

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 Insuran"e &td. v. Mohammed Taib ee &td. E Authority for the proposition that in deciding cases courts 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 reali"ing his right. #ivil 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 Karim ee Pro#erties &td. v. Kha*i & Camera Pri+ &td. ,F There was a preliminary ob*ection 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 /rder MII 5ule P. At that time ,EKF that 5ule said so, the #hief 2ustice e-pressed his regret at the state of the law, the law required the court to struck out a plaint. :e stated4 :e hope that in the near future the situation will change. Shortly he amended /MII5,F by introducing a 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. 7efore that time A #ourt of Appeal had made a comment on it in ,an i Prabhudas v. Std. Ban*,, classify procedural law into two (;)4
[1973] EA 10 at 14 (1970) &#' 35 ,, [196%] EA 670 at 6%3
E ,F

,. 3undamental goes to the root of a dispute. They affect the *urisdiction of the court or contradict a statute. g. Hatters of 5es 2udicata, limitation where it goes to the root of the case there is no option but to interpret it strictly. :owever, 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 *ustice without undue technicalities in law. Therefore a civil court should not hasten to declare a proceeding a nullity purely on the ground of procedure, /rthodo- position. #ourts in Tan"ania in recent times have developed a different approach. 3irst is found in the case of R. Mohammed v. T)A,; The :igh #ourt had entered *udgment 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 e-ercised its power under /MIII5,B of #!#. 5amadhan 2., ruled that rules of procedures are there to be followed, a court can not depart from a rule and the prete-t is that it is doing *ustice. 5ules 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. /ppose to the tradition. The court is presumed to know its powers conferred to by the law. #ourts concentrate on deciding cases on technicalities rather than going to the substantial right. The use of technicalities reflects la"iness instead of going into the substance matter. As a general rule procedural statutes should be interpreted liberally because they do not vest any substantive right to the
,;

#i(il A))eal 1*1996 (+,re)orte-)

party. Strictly interpretation of rules of procedure should be made only when these rules go to the root of the *urisdiction of the court, they are fundamental in their nature when they go into the root. $hen they do not affect the *urisdiction of the court such rule generally must be given a liberal construction. :owever, the #ourt of Appeal of Tan"ania has moved away from the principles by taking a position that rules of procedure are there to be followed and basing on that where there is a specific procedural rule that rule must be followed so as to introduce an element of certainty in procedure. That is to say according to #ourt of Appeal the principle of liberal interpretation of procedural statutes should not be used to introduce arbitrariness into the procedures and therefore uncertainty. 7ut the #ourt of Appeal has gone to an e-tremity of even demanding a proper citation of an enabling power being invoked. nabling powers are matters of *urisdiction, law and the court is supposed to take *udicial notice of the law. To be conversant with its *urisdiction and therefore, the tradition #osition that #ro"edure is not a master but a servant has been e+tremel( !atered do!n b( the Court of A##eal of Tan-ania. The effe"t is the o""asioning of in usti"e. in that a number of "ases are determined not on the basis of substantive right but on the basis of #ro"edural te"hni"alities in !hi"h "ase the dis#ute remained unresolved. T e Effects of #!en$!ents Article ,=,= amendments to substantive law do not have a retrospective effect. Heaning 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
,=

T.e #o,/tit0tio, o! t.e +,ite- Re)0blic o! Ta,1a,ia$ 1977 a/ ame,-e-

present and not the past. 7asic #onstitution principle that you should not take away peopleNs rights that they have already had. !rocedural law does not enact substantive right, it relates to the mode of dispute settlement before a court of law. It does not concern itself with substantive right, there could be some procedural right but they could not take away somebody proprietary right. 0eneral 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 0eneral 5ule is any amendment or change in the law relating to procedure will affect proceeding which are already in court and subsequent to that law. !rocedural amendments have a retrospective effect. -ample mployment and 'abour 5elations Act has taken away *urisdiction matter for ordinary courts. The 'and Act has also taken away *urisdiction of ordinary courts. 1nless the law specifically provide that it will not have a retroactive act, that law will have a retrospective act. Section K? of the 'and Act declares that *urisdiction will be vest in the :igh #ourt 'and &ivision and in the &istrict 'and and :ouse Tribunals. 7ut the 'and Act *ust enact the law relating to *urisdiction. :igh #ourt and &istrict 'and and :ouse Tribunals will have e-clusive *urisdiction. 5emoved from the general division of the :igh #ourt and Hagistrates. The procedure is found in the 'and &ispute Settlement Act, no. ; of ;FF;. !rovides for the ways *urisdiction will be e-ercised by the &istrict and :ouse Tribunals and :igh #ourt 'and &ivision. It is a procedural law relating to the *urisdiction. !resumption is that, once that Act was enacted all matters relating to land would have removed from the 5Hs #ourts and general :igh #ourt. !rocedural statutes as the 0eneral 5ule has a retroactive

effect but section BF makes a specific provision to the effect that the #hief 2ustice could e-tend the period in whichD The principle in 7en 7ros Hotors v. !atel.,B A case related to the Security of mployment Act, before enactment of S A ordinary courts had *urisdiction over matters relating to summary dismissal or disciplinary termination. This *urisdiction was taken away from ordinary courts by section ;K of S A. Section ;> had to be read together with section ;K. This was a case of summary dismissal and it was pending before ordinary court, the issue was whether the S A ousted the *urisdiction of ordinary courts. The provision in the S A which ousted the *urisdiction was a procedural section, it did not affect the right of the party. In answering that question the court stated as follows+ 8$hen a new enactment deals with rights of action unless it is so e-pressed in the Act itself, an e-isting 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.9 The law which gives a person a right of action creates a substantive right. An amendment in such a law does not e-tinguish an e-isting right unless it is e-pressly stated. !rior of section ;F of the 'and Act, a foreigner can own land. 1nder the /ld 'and /rdinance a foreigner could own land. In ,EE>, the right was e-tinguished. 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 e-isting right, parliament is the one to decide whether it should be retrospective or prospective. If the
,B

(1967) &#' 435

law is silent on retrospective nature of the amendment then the 0eneral 5ule will be applied, however, under the 'and Act, section ;F there was a specific declaration of retrospective. The case has a ;nd 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 e-pressly stated by the law. And this was commented upon in the case of Msige v. /. A. 0ail!a(s Coo#eration,? this case held that+ 8The general principle seems to be that alterations in procedure are retrospective unless there is good reason against it. The reason is that a personNs vested right is not taken away by procedural amendments. !rocedural law has only one purpose, it is used as a means of settling dispute. !rocedural law does not declare any substantive right though will be declared in the process of dispute settling.9 $hether an issue of trespassCmortgage is dealt with theDit does not matter the law remains the same. !rocedural laws have a retrospective effect unless it is e-pressly stated because they do not enact substantive right. Substantive laws have no retrospective effect unless it is e-pressly stated. THE PRELI)I(#RIE% TO CIVIL LITI,#TIO( 'itigation is the last resort to solve the dispute. 7efore 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
,?

(1970) &#' 1%

threatening court action if those demands are not met. A greater number of claimsCdisputes are resolved by demand letters. 3or 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 #ode. 6o section compels, it is a common law practice which is followed in Tan"ania by virtue of the reception clause. Also it is by implication in the code, section =F of #!#. At the time of pronouncing *udgment 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.,@ The 0eneral 5ule relating to costs is found under section =F(;) of #!# but it is stated in the negative. 6ormally, costs follow the event . who loses compensate the winner because the loser is taken to compel the winner to go to court. 7ut under section =F(,) 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. &emand 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. :e 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 "ontestatio, it is also established that the plaintiff has been compelled to go to court. 6o standard form of demand letter it depends upon the claim. &n$ %T#,E

,@

2ectio, 30(1)

Aou have decided to go to litigation, the ne-t question is which court will you go? 7rings to the concept of *urisdiction. All our courts are established by statutes and therefore, the *urisdiction is determined by statute. 1nder #!#, section = only = courts are concerned. It defines what court is and it defines by way of mentioning the court. The definition is in the conte-t of applicability of the court, the #!# applies to courts which are mentioned in the #!#. Section = and ; must be read together. 2urisdiction+ means power, a specific one. It is not defined under the #ode even under the 2A'A, nor the Interpretation of 'aws and 0eneral Applications Act. Article ,F> of the #onstitution establishes the :igh #ourt but does not give it its *urisdiction. In the #onstitution there are no provisions regarding the general *urisdiction of the :igh #ourt but Article ,FKA(,) it declares that the :igh #ourt is the court of records. $here is the provision? The answer is no. referred to common law. $e have the :igh #ourt with no clear *urisdiction. The #onstitution in Article ,F>(,) allows parliament to enact laws which determine the *urisdiction of the :igh #ourt. This is how the 2A'A was enacted. It is a court of unlimited civil *urisdiction, both in the conte-t of territory and also in the conte-t of pecuniary value of the sub*ect matter. The 5Hs and &# are courts of limited *urisdiction, both territorial and pecuniary of the sub*ect matter. In respect of &# they are established for a particular district although #hief 2ustice may give them a wider territorial *urisdiction.,K Section ? the #hief 2ustice has power to establish 5Hs. As a 0eneral 5ule these are the courts which e-ercise limited civil *urisdiction. &# e-ercises civil *urisdiction only being presided over by a
,K

2ectio, 4 o! 3#A

district magistrate who has been appointed byD6ot all &istrict Hagistrates have civil *urisdiction. 2urisdiction relates to power, it is the power to hear and determine. If one missing you do not have the power. !ower to entertain the dispute, power to decide essentially values, a power to grant a remedyCrelief. :earing involves entertainment of the dispute by hearing the parties and their witnesses. That is called the power to try to dispute. Section K of #!# raises the presumption as to *urisdiction. !resumption is that all civil courts are presumed to have *urisdiction to hear and determine civil matters that are brought before them unless that *urisdiction is e-presslyCimplied barred. 5elates only to civil courts defined under section = of #!#. :ow this barred is effected? 7y a general proposition that *urisdiction is determinable at the beginning of the case. Anything done without *urisdiction is a nullity. :owever, common law have developed another approach, although as the general principle *urisdiction is determinable at the beginning of the trial. A court can start hearing the suit when it has *urisdiction but in the cause of the trial it can do things which will oust it *urisdiction.,> This presumption as to *urisdiction under section K stands out of the fact that the court is the fountain of *ustice. Article ,FKA (,) the court is the final authority in dispensation of *ustice. Section K must be read together with Article ,FKA(,). This general proposition is qualified. Article ,FK7(;) enacts the principle of independence of *udicially. It is bound by the #onstitution and written laws. Article ,FKA is the ma*or Article in the #onstitution that declares as the only instrument which has responsibility of
,>

2ee A,i/mi,ic4/ ca/e

dispensing *ustice. That Article is not qualified in any way, any possibility of another instrument to dispense *ustice finally and conclusive. The #onstitution is the basic law of the land. 6o law can supersede the #onstitution unless the #onstitution allows it. Article ,FKA has not allowed parliament to oust the *urisdiction of the court in the dispensation of *ustice and therefore, section K of #!# can be taken to introduce the concept of ouster of *urisdiction in a situation whereD OU%TER All civil courts in Tan"ania are courts which have established by statutes and therefore to know the *urisdiction of a particular court, you must look at the statute creating it or providing for its *urisdiction. As far as the :igh #ourt is concerned you must look at the #onstitution which established the court and the 2A'A which provides for *urisdiction of :igh #ourt. As far as 5H and &# are concerned you must look at the H#A which creates the courts and which gives the courts their *urisdiction, and generally other specific laws dealing with specific matters eg. 'HA,!robate and Administration of state Act, the 7ankruptcy Act, #ompanies Act. 2urisdiction is given by statute and can be removed by statute. That is true only in subordinate courts.(5H) There are two (;) types of ouster of *urisdiction i. /+#ress Bar12uster /ccurs when a particular statute specifically removes the *urisdiction of the court in a particular situation. It occurs when there is a specific provision of a law which removes the *urisdiction of the court in certain matters. Statute removing the *urisdiction must be very strictly interpreted. 3irst of all the #onstitution had declared that courts are fountain of *ustice and if the statute goes against the #onstitution must be

construed strictly. In case of Mtenga v. 3niversit( of 4ar es Salaam,E 7iron 2., 8It is trite to observe that the court is and has to be for the protection of the public *ealous of its *urisdiction and it will not lightly find its *urisdiction ousted. The legislature may sometimes does INm afraid too often oust the *urisdiction of the courts in certain matters but for the court to found that the legislature has ousted the *urisdiction, the legislature must state so in no uncertain and in the most unequivocal terms.9 The court recogni"es the #onstitution position that it is the fountain of *ustice, it is suppose to protect freedom and right of the public. And therefore, it recogni"es the fact that it has the duty to make sure that its role is not easily removed. 7ut at the same time it recogni"es that courts are established by statutes and therefore there could be some statutory interference with its *urisdiction. $hen there is such interference then the statute making the interference must be very clear not open to any ambiguity. ii. Im#lied Bar12uster The law is not categorical, not clear but that does not mean that the law is ambiguous. HtengaNs case discussed a situation where law is ambiguous. An implied bar does not contain ambiguity. $here an Act of parliament purports to oust the *urisdiction then it must be very clear. The Act should be capable of interpretation without any doubt. $hen we are looking at implied bar, is when the law creates a right and provide an institution with e-clusive *urisdiction. Section ,K? of 'and Act creates a :igh #ourt 'and &ivision and gives it e-clusive *urisdiction over land matters. There is a problem, the
,E

(1971) &#' 47

:igh #ourt is created by Article ,F>, the 2A'A empowers the #hief 2ustice to make regulations relating to the administration of the :igh #ourt and the #2 has e-ercised his powers by enacting a :igh #ourt 5egistry 5ules. They provide for the establishment for the registry of :igh #ourt at different places of the country. There is one :igh #ourt and known as the :igh #ourt of the 5epublic of Tan"ania. Those established by statute. It e-ercises *urisdiction over the country. 1nder the :igh #ourt 5egistry 5ules, the #2 has established various sub registries which e-ercise local *urisdiction over the "ones in which they are established. g. &SH, Tanga, Tabora, Hwan"a. There is one 5egistrar of :igh #ourt and district registrars. Oan"ibar Article ,,B. It has concurrent *urisdiction with the :igh #ourt of Tan"ania as far as matters are concerned in Oan"ibar. The suit should be brought at the :igh #ourt for Oan"ibar. The :igh #ourt of Tan"ania does not e-ercise *urisdiction in Oan"ibar e-cept for election matters brought under lection Act, ,EE?. 1nder the :igh #ourt 5egistry 5ules another registry was created, that is the :igh #ourt #ommercial &ivision which deals only with commercial cases and was created by #hief 2ustice under the power given to him under 2A'A. There are two situations which are unique, the 'and &ivision of the :igh #ourt is not created by 0overnment 6otice, it is not created under the :igh #ourt 5egistry 5ules likewise the 'abour &ivision. The :igh #ourt 'and &ivision is created under section ,K? of the 'and Act, ,EEE while the 'abour &ivision of :igh #ourt is created under section EB of mployment and 'abour 5elations Act, ;FFB read together with section ?F of 'abour Institutions Act, ;FFB. The parliament took the role of the #hief 2ustice to establish registries of the :igh #ourt by establishing the 'abour &ivision and 'and &ivision.

$hy? It is in the circumstances those two divisions were created. 'abour and land are the most important elements in the economic of the country. !oliticians try to control land and labour. The politicians are trying in getting away of the control of the court, Article ,FKA . fountain of *ustice and Article ,F>7 . Independence of *udiciary. 5egistries are synonymous to divisions. In the conte-t of ouster, the 'and &ispute Settlement Act read together with the 'and Act or the 'abour Institutions Act read together with the mployment and 'abour 5elations Act do not specifically declare that matters relating to land or labour shall not be entertained by the other courts. 7ut by implication because such matters are to be entertained e-clusive by the related divisions of :igh #ourt which have under their administrative tribunal, the *urisdiction of the other courts is automatically ousted. 7ut 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 e-clusive *urisdiction, if not there is a presumption that they can have concurrent *urisdiction with ordinary courts. $here there is no absolute bar there is a presumption of the concurrence of *urisdiction. $here a tribunal is given e-clusive *urisdiction the implication is no other tribunal can entertain the dispute. Mi"hael M!ailu#e v. C04B;F H2. Qileo+ The issue+ $hether the :igh #ourt 'and &ivision has e-clusive *urisdiction in matters relating to mortgage.
;F

La,- ca/e ,o. 7 o! 003

The plaintiff filed a case concerning mortgage, the defendant raise an ob*ection to the effect that a mortgage was a commercial transaction. The court over ruled the ob*ection by holding that all matters relating to land where within the e-clusive *urisdiction of 'and &ivision of the :igh #ourt. 4unia 'orld!ide &td. v. PS0C & another5$ related to sell of factory assets including immovable properties and it was conducted by tender. /b*ection was taken to the effect because the assets concerned a factory which was permanently affi-ed on land then that was a land dispute so commercial division was not competent to entertain. H2. H*asiri over ruled the ob*ection and said although it was a sale of land it was a commercial transaction by tender and therefore the commercial division of the :igh #ourt has *urisdiction. Tambueni Abdallah & 67 others v. The ,SS8 ;; The case was looking at Industrial #ourt Act and the issue was that whether ordinary courts have *urisdiction over industrial disputes. The court of Appeal held that the Industrial #ourt now 'abour #ourt have e-clusive *urisdiction over matters relating to industrial dispute. Although under the Industrial #ourt Act there was no e-press provision relating to ouster of the *urisdiction of the court. $hether it is an e-press bar or imply bar depends upon the statute you are dealing with. Aou must look at the words of the statute. In Tan"ania there has been a movement of creation of administrative tribunals to settle disputes relating to certain areas in our country eg. 'abour, land, ta- with an appellate system which goes to a specific division of the :igh #ourt or tribunal presided by the *udge. They do not e-pressly oust the *urisdiction of
;, ;;

#ommercial ca/e ,o. 5% o! 005 #i(il A))eal ,o. 33 o! 000

ordinary courts but by creating e-clusive *urisdiction in these tribunals function in the ordinary courts is implied removed. :ence when considering section K of #!# one must think more of implied bar than e-press bar. -press bars are limited. #oncurrent *urisdiction . all with the same original *urisdiction. 7lock appellate right. Section ,= of #!# . rule of procedure and not *urisdiction. 1nder #!# the lowest court is the &istrict #ourt with regard with pecuniary limitation. Doctrine of Res -u$icata an$ Res %u. -u$ice. 0es means thing, udi"ata comes from the word *udice which means before the court. That has been before the court. 0es udi"ata stated as a doctrine of common law but it has been enacted into #!# under section E. It is a doctrine which prevents a party to bring a fresh suit on the same sub*ect matter and against the same defendant(s) when the dispute has been already a sub*ect of litigation before a court of competent *urisdiction 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 *urisdiction of a court as many times as he wants. The doctrine is centred on one public policy, interest 0ei#ubli"ae 3l sit finis &ituum that is it is the interest of the public that litigation should come to a speedy end. $hy? &isputes 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 udi"ata is intended to maintain the dignity of the court, works hand in hand with stare de"ise (precedent)

$hen 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. &o"*(er v. 8errman;= gave us the policy behind the doctrine of 0es Judi"ata. The case said 0es Judi"ata is based on two points of policy. /ne it is intended to prevent hardship being caused on the party who is sued. 5ich plaintiff(s) may use the court system to harass poor defendant(s). The doctrine is based on the principle that no person should be ve-ed twice on the same matter. 'itigation is not intended to torture people but legal relief. 5es 2udicata in criminal cases it relates to = pleas, Autrefois convict . already convicted on the same facts, autrefois acquit . already acquitted on the same facts, pardon. They are based on Article ,= of the #onstitution. Secondly, it is based on public policy that there must be an end to litigation. 8The rule of res *udicata may thus be put upon ; grounds, the one the hardship to the individual that he should not be ve-ed 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.9 The case is supported by the case of 4illard v. M"Knight.;B The doctrine is based on sound public policy that there should be an end to litigation. !eople had have one fair trial may not have an issue of ad*udicated upon for the second time. It prevents inconvenience upon parties. 5es 2udicata therefore has got three roles to play+

;= ;B

(1%67) L. R 47 11 AIR %35

i. As regards the parties, they should not be ve-ed 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). /n the part of the court, multiple actions between the same parties and on the same sub*ect 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. Hultiple actions between the same parties on the same sub*ect e-pose the court to the possibility of making conflicting decisions. This invalidate the dignity of the court. /n the part of the state internecine actions weaken society, affects production and that contradict the main aim of the state. 8&evelopment in the law of 0es Judi"ata9 @? :avard 'aw 5eview >,> Hauro #apallatti 7esides putting the other party to the e-pense of ; nd trial, and both him and his witness to that inconvenience multiple actions waste the time of the court especially intelligent evaluation of the background of the case requires covering the same ground gone over before. $here there are several cases between the same parties and on the same sub*ect matter, the same evidence is going to be needed and therefore repeatition of the same thing at the different time. That is e-pensive, time wasting, boring. )o!ett v. Tarte;? developed a position to the effect that the doctrine of res *udicata 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 case of )um#hries v. )um#hries;@ commented on the decision of )o!ett v. Tarte (supra).
;? ;@

10 #. B (52) %13 [1910] 6B 531

This is in accordance with *ustice for while interest reipublicae that litigation should sei"e so far as the matters directly ad*udicated upon are concerned its not e-pedient 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 e-pedience that is not ve-ing people twice on the same sub*ect matter but should not be used at the e-pense of *ustice. Therefore, the doctrine may be misapplied where an important point of law was not raised or *udgment was obtained by fraud which is no *udgment and therefore will not bar relitigation. A *udgment issued by a court with no *urisdiction is no *udgment and can not be used to bar relitigation. 2udgment obtained in technicalities of the law is no *udgment. 7ut e-pedience should not be placed aside easily. The rule of e-pedience is based on the desire to give stability to court decisions. A *udicial system which does not guarantee the stability of its decision is not worth of its name. dward $. #learly+ 0es Judi"ata re%e-amined. ? Aale 'aw 2ournal ==E at p. =B? 87esides wasting the time of the courts and litigants to permit multiple actions leaves undesirable uncertainty in the economic affairs of those sub*ect 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 e-isting at the time the first action was brought. ffective 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.9 $e are looking at the stability of the economy, stability of the courtNs decision then you must look at the respect of the court. Authoritative decision. 5am &ev. Halik v. Albert #allow.;K Those are matters relating to the doctrine THE DOCTRI(E :as its origin in a very old case, the 4u"hess of Kingstone9s "ase.;> There were proceedings against the &uchess of Qingstone for annulment of his marriage on the ground of adulterous and the court annulled the marriage. Subsequently the &uchess was brought before an clesiastical 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 *udgment of court of concurrent *urisdiction on a point is as a plea bar and as evidence conclusive on any matter between the same parties on the same sub*ect matter coming either directly or corattelary before the same court or another court of concurrent *urisdiction. A person can not raise the issue of a *udgment of a court of competent *urisdiction before the same court or another court of competent *urisdiction for purpose of questioning it. 2udgment of courts of e-clusive *urisdiction is as a plea also a bar and as evidence conclusive. 0es Judi"ata applies in all circumstance, all courts

;K ;>

[195%] EA 99 164 ER 175

does not have ob*ection. The issue is whether the court has competent *urisdiction. The case has the following to say+ 7ut neither the *udgment of concurrent or e-clusive *urisdiction is evidence of any matter which came corattelary in question within their *urisdiction no any matter incidentally cogni"able by argument from the *udgment. Aou can not raise a *udgment to question it so long as it is directed clearly. The doctrine of 5es 2udicata 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. B(noe v. Ban* of /ngland;E restated the doctrine of 0es Judi"ata, 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 *udge had the following to say+ 8There 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.9 A conviction which is produceable (doctrine of evidence . you produce evidence), you can not aver against itCquestion it It is a doctrine of preclusion (prevention), prevented from arguing against it. This is what under the 'aw of vidence as estoppel by records.

;E

[190 ] 1 6B 467

2rd v. 2rd=F is the case which related the doctrine of estoppel to the doctrine of 5es 2udicata. stoppel prevents you from pleading otherwise. !reclusion eliminates certain pleadings. In the case the *udge stated as follows+ 8The words res udi"ata e-plain themselves if the race (thing) actually and directly in dispute has been already ad*udicated 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 udi"ata that prevents litigants from relying on a claimCdefence 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 *udiciary 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. Aou look at the record and see the *udgment. Marginson v. Bla"*burn Borough Coun"il=, 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. Aou look at the centre of dispute and itself. #ause of action . asserted by one party and denied by the other party. $hether that cause of action was in agenda in a previous suit, if not then it can not be res udi"ata. In other words, a person is prohibited from bringing into court a dispute which had been already determined. 2rd9s "ase (supra) told us is a doctrine of evidence. :ow do you know it was an agenda? 7y looking at the records and that is why it is called a doctrine of evidence and not procedure.

=F =,

[19 3] [1939]

6B 43 $ 439 6B 4 6$ 437

Marginson9s "ase says it is estoppel by res udi"ata, a party can not reopen what has been already closed. :e is estopped from raising it again, it is estoppel by records. !oint that the doctrine is a doctrine of evidence is further elaborated in )um#hre(s v. )um#hre(s.=; The decision is important for the proposition that the doctrine is found on the doctrine of estoppel. The *udge stated that+ 8 stoppel is merely a rule of evidence and if a plaintiff can ob*ect 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 traversedCopposed by the defendant in a former action and has been determined in the plaintiffNs favour in such former action, there is no reason for disallowing the ob*ection but if there is no such definite issue then the ob*ection will fail.9 Ha*or points from the case+ The doctrine is a broader rule of evidence and to this broader rule of evidence prohibitsCbars relitigation over matters which have already been a sub*ect of litigation and conclusive decision by a court of competence *urisdiction. A *udgment of a court of competent *urisdiction is binding upon the parties falling the same capacity or upon persons litigating under the partNs title. 'ook at the nature of the dispute. 0es Judi"ata is not binding upon the *udgment of the court or parties who were not parties to it. Aou must look at the identity of the parties. It will bind if the parties are the same. 7arr v. 2ackson== is an elaboration of the decision of the 4u"hess of Kingstone9s "ase. The court stated as follows+

=; ==

[1910] 6B 531$ 536 [1%4 ] 1 78# #' 5%59 :ol. 41 ER 754

The rule against repeating a matter ad*udicated is sub*ect to those restrictions that however essential the establishment of a particular fact may proceed on them as established and however binding and conclusive the decision may as to immediate and direct ob*ect 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 sub*ect of the decision being not attempted to withdraw from its operation as to defeat its direct ob*ect. #ircumstances you can use a *udgment of previous case but not for the purpose of defeating the purpose. 3or the purpose of establishing what transpired in the previous decision. Aou can question the *udgment on the appeal. Ele!ents in t e Doctrine of Res Judicata There are four elements which must co%e-ist in order to bring the doctrine into play+ i. There must e-ists two suits, one suit be pending and another suit must be decided. A suit is no defined in the #!# and neither in the Interpretation of 'aws and 0eneral #lauses 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+ 3iling a plaintCchamber summons supported by an affidavit 3iling an originating summons 3iling a notice of motion !etitionCmemorandum

1nder the 7ankruptcy Act, !robate and Administration of

states Act,

#ompanies Act, 'HA one files a petition. 1nder the 'aw 5eform 3atal Accidents < Hiscellaneous !rovision 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 7asic 5ight and 3reedom you want to use. The #!# has only one form of commencing civil proceedings, that is provided under section ;; read together with /. IM r. ,. /. P'III r. ; . #hamber summons supported by an affidavit. Applications for in*unction, 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 E of #!# . 0es Judi"ata relating to a suit or an issue. It is a suit if brought by a way of a plaint. Aou look at the cause of action when you want to apply the doctrine to a suit. 7ut under section E there are some rooms to look to an issue rather than a suit. 0enerally therefore one must look what the court decided. It would be the cause of actionCissue relating to the proceedings. That is why even matters determined in applications could be the sub*ect of the doctrine. nforcement Act and in quity. In laws relating to declarations, what is going to be used depends upon the law

$hen 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. 7ut former suit (section E) has reference to the time of decision. 'ook 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. #ompetence of the court. 7oth suits must be before courts of competence *urisdiction. 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. ven parties can not consent to be tried with the court of incompetent *urisdiction. 2urisdiction is a question of law and when a court assume *urisdiction which does not have everything is a nullity. A previous suit which has been decided by a court without competent *urisdiction can not operate as res udi"ata 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. $here the pending suit is before a court with no competent *urisdiction it will be decided on the issue of *urisdiction and not res udi"ata. 2urisdiction is determined at the beginning. #ompetence of *urisdiction as a matter of general rule is relevant only in respect of the previous suit. 2urisdiction could be of a court of concurrent or e-clusive *urisdiction. So long it is a *udgment made by a court of competent *urisdiction the doctrine will be applied when the pending case

is on the court of concurrent *urisdiction, e-clusive or the same court. The issue is whether the previous suit was decided by a competent court. H#A does not provide for the definition of a court, there is establishment of court. Section =, B and ?. The definition of court under one law is conte-tual, depends upon the conte-t in which the word is used. To know the meaning you must look at what is described as court in a particular law. 3or the purpose of #!#, the court will be &#, 5HNs #, :# (Section =). &ecisions of !rimary #ourt do operate as res udi"ata once it is established that a !rimary court was competent to try that issue. 7ut Administrative tribunals are not courts and there decisions can not operate as res udi"ata in respect of matters which are pending in ordinary courts. The doctrine relates only where there are courts within the meaning of the law. $hether the court in the ; nd suit is of competence *urisdiction or not it is a question of law. Aou look at the law creating the court also the law giving it *urisdiction, and sub*ect matter of the litigation. It is the court which is to decide on whether the previous court was of competent *urisdiction.

The question is whether the person is authori"ed to receive a plaint. ;,st #entury Industries 'td. v. Sugar 7oard < others =B, the court was called to interpret the court of Appeal 5ules which require the 5egistrar to endorse documents presented to the court of Appeal. arlier point the 5egistrar has to personally endorse the documents presented but in this case 5amadhan 2. as he then was came to different conclusion. ndorsement is not necessary to be done by the 5egistrar personally. It can be done by a personal authori"ed by the 5egistrar and acting on behalf of the 5egistrar. 1se 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 authori"ed could do that.
=B

#i(il A))eal ,o. 5%* 004

The test whether a person is authori"ed is whether he has employed as a 5egistrar /fficer in that particular court. If it is A S commences the presentation. 6e-t question, what time and place can a presentation be made? It is for the purpose of the law of limitation. 6o 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 courtNs seal and clerk make a court. There is no rule which prevents a *udge from entertaining a suit while he is at home. The case of Kit!ana Kondo, Hapigano 2. when he was at home issued an in*unction. Therefore we are to be guided by Indian authorities which interpretation of the provision is in parimatelia with our provision OIVR1. $e do not have authority on this. In India4 0atan Java*isan She*al v. Ba#u )ira i Kunbi.=? !oint on the time and place of presentation. The court said, 8The 2udge 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 hours9. A plaint can be presented to the proper officer at any time and place. /IM 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. 7y

=?

AIR :ol. 4 Bomba; 1937$ 5

receiving the plaint outside, the clerk is not committing any illegality. The suit would have commenced, it does not make the suit incompetent. There are two categories of officer authori"ed to receive plaints4 i. 2udicial /fficers+ These are *udges, magistrates and 5egistrars can receive plaint any where and at any time. They constitute a court. ii. Hinisterial /fficersCAdministrative /fficers 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. 3or e-ample, 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. Hatrimonial proceedings for dissolution of marriage cannot commence unless there is a certificate of #onciliation 7oard and therefore a presentation of the certificate to the court is conditional. !resentation 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. ,ai"*er.=@ In this case $allace 2, made the following observations4 8It 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 obtained9. !roper !resentation+
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AIR (:ol. 16) 19 9 3a-ra/ 4%0

!rovisions of /MI and /MII. The plaint is the ,st document is a suit, it is a pleading and therefore it must comply with general rules of pleading provisions of /MII5, It must have a title containing the name of the court and place where the court is sitting. 6ames 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 actionCcomplaint. These are the facts if opposed by defendant must be proved by the plaintiff in order to be entitled to relief. A plaint also must make a statement of the value of the sub*ect matter, pecuniary value and an assertion that the court has *urisdiction to try it. A plaint must contain a prayer for a relief, what court should do for you. /MII5, must be read together with /MI in particular it must comply with /MI5,B and /MI5,? which requires the pleading to be signed by the pleader, a plaintiffChis advocateCagent. 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. /MI5,B provides thatDparty and his advocate. There has been some arguments that rule is mandatory. Basil Pesambili Mramba v. M!anan"hi Publishing Co. &td .=K Qalegea 2., said 8once a plaint is signed by the party, it is properly before the court that although the provision of /MI5,B 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. Merification is not an oath, therefore cannot be held of per*ury. Merification is done by the parties themselves or a by a person who to the satisfaction of
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#i(il #a/e 5o. 164* 007

the court has knowledge of the fact. $hen 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. !roper 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 /MI5,B, /MI5,? and /MII5,. they are mandatory requirements Prin"eline &td. v. The Trustees of the Port of Bomba( => the *udge who interpreted /IM5, had the following4 8/IM5, 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 /MI and /MII as 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 /MI5,B and /MI5,? 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 /MI5,B and /MI5,?. 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.

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AIR (:ol. 37) 1950$ Bomb. 130