CIVIL PROCEDURE QUESTIONS AND ANSWERS.

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

OUTLINE

1.0 INTRODUCTION
1.1-The concept of jurisdiction

2.0 MAIN BODY

2.1 Statutory development and the changes in jurisdiction

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

3.0 CONCLUSION

Bibliography

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

1.1 THE CONCEPT OF JURISDICTION

The term Jurisdiction is not defined in Tanzanian statutes; hence we have to fall back to
the common law by virtue of section 2 (3) of the judicature and application of laws Act
herein below referred to as the JALA which allows the application of such laws in our
legal system. Jurisdiction is defined as the power or authority of court to hear and
determine a cause, to adjudicate and exercise any judicial power in relation to it 1.in
other words by jurisdiction it is meant the authority which a court has to decide matters
that are litigated before it or to take cognizance of matters presented in a formal way for
its decision2.

Thus jurisdiction of court means the extent of the authority of a court to administer
justice prescribed with reference to the subject matter, pecuniary value and local limits 3.
However generally Jurisdiction is defined as the power of the court or tribunal to hear
and determine matters which are placed before it. Jurisdiction being important matter it

1
C.K. Takwani, Civil Procedure,5th Ed, p 33
2
Official Trustee V Sachindra AIR 1969 SC 823 (827):(1969) 3 SCR 92
3
Raja Soap Factory V S.P Shantharaj A.I.R (1965) SC 1449:(1965) 2 SCR 800
was stated in the case of UTAMWA V AG & MUNGAI4 that jurisdiction must be
determined at the beginning of the proceedings not at the in the course of or at the end
of proceedings.

2.0 MAIN BODY

2.1 STATUTORY DEVELOPMENT AND THE CHANGES IN

JURISDICTION.

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

The recent development of statutes in Tanzania has witnessed the establishment of

several divisions of the high court which varies the jurisdiction of the court. As it is
known the High Court has been established by article 108 of the Constitution of the
United Republic of Tanzania 1977 as amended from time to time. The jurisdiction of

4
Civil Appeal 40/2000.
the High Court is provided for under section 2(1) of Judicature and Application of Laws
Act5 that it has an unlimited jurisdiction over all matters.

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

To start with is the Land Division; this is a division of the High Court which is
established under section 3 of the Court (Land Dispute Settlement) Act. This law has
taken away the High Court jurisdiction over land matters which previously was the
concern of the High Court main division and vested it to the respective division. The
Act also has caused the establishment of the Village Land Council, the Ward Tribunal,
the District Land and Housing Tribunal; which are recognised as courts under the Act.
All these bodies established under that law are vested with exclusive jurisdiction over
land matters. The Courts (Land Dispute Settlement) act is the product of section 167 (1)
(b) which vests exclusive jurisdiction on land matters over among other tribunals the
High Court Land Division

Another enactment of law which has affected the jurisdiction of the courts is the Labour
Institutions Act; this law under the provisions of section 50 provides for the
establishment of a Labour Division of the High Court; which is a court which exercises
5
Cap 358 R.E 2002
jurisdiction over labour disputes as provided under section 94 of the Employment and
Labour Relations Act 2004.The court has exclusive jurisdiction over labour matters.
This court has taken away the jurisdiction which was at the beginning exclusively
vested on the District Court.

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

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

2.2 JURISDICTION AS TO GENERAL AND SPECIAL COURTS

Generally Tanzania has three tier court systems which comprises of the High court at
the top, District court and Resident Magistrate Court at the middle and the Primary
Court at the bottom.

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

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

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

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

6
This is provided by the Written Laws (Miscellaneous Amendment) Act No 3 of 2002
divisions have been given exclusive jurisdiction i.e. Land, labour and commercial
divisions.

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

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

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

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

2.3 THE RECENT STATUTORY DEVELOPMENT AND CONCEPT OF

JURISDICTION

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

2.3.1 Advantages of the noted statutory developments.

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

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

2.3.2 Disadvantages of the noted statutory developments

It is well settled law that the court of appeal is not established by the Act of the
parliament however following the introduction of the Courts (Land Dispute Settlement)
Act recognises the court of appeal as the court with jurisdiction over land matters. This
recognition by section 3 (2) (e) of the Act brings inconsistence because as far as the
jurisdiction of the courts because the court of appeal does not have original jurisdiction.
What was supposed to be the concern of this provision was to deal with the courts of
original jurisdiction. Whereas this section has lead into conflict as the court of appeal,
the court of appeal has jurisdiction as provided for by the Appellate Jurisdiction Act,
1979.

In addition the establishment of the division of high court are acting as the bar towards
the access to justice, for instance the high court commercial division has only sub
registry in Arusha and main registry in Dar es Salaam. Also the high court land division
has its establishment only in Dar es Salaam therefore the cases of land matters in the
other regions have to wait the circuit movement of the judges from Dar es salaam which
acts as the delay as it is not easy for them to circulate in the country at appropriate time.

The exclusive jurisdiction vested in the general division of the High Court for instance
exclusive jurisdiction on bankruptcy, probate matters in exclusion of small estate,
company especial in insolvency and winding up and admiralty plays as disadvantage as
it leaves only one step for the appeal by the one having suit to be dealt by this court.
The recent development of statute has a disadvantage in that, it has witnessed the
establishment of several courts with exclusive jurisdiction this has caused confusion to
people as they fail to know exactly that as to which court they should institute their
case, this may result into dismissal of cases. This is a result of people’s ignorance in law
and changes therein.

Further, another disadvantage due to the development of the commercial court it has
been too cost full for people to file suits in commercial courts hence deny peoples rights
as they cannot afford such cost to institute their cases. On top of that the Commercial
Division of the High Court as it has concurrent jurisdiction with other divisions of the
High Court it appears that case which were supposed to be instituted in this division of
the High Court can either be instituted in the Land Division 7 or in the General Division
of the High Court.

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

At the same time the District Court has jurisdiction over the commercial matters where
in section 2 of the Magistrate court there the inclusion of the term Commercial Case 9
whereby the court has jurisdiction on the commercial cases in which the district court
7
The cases involving securities like mortgages and other cases which are involving commercial activities but they
involve securities like land
8
See the Written Laws (Miscellaneous Amendments) Act No 3 of 2002
9
In the Written Laws (Miscellaneous Amendment) Act No 4 of 2004, commercial means a civil case involving a matter
considered to be of commercial significance including but not limited to [See those instances provided under roman I to
roman xi)
has jurisdiction on proceeding of immovable property not exceeding fifty million, and
proceeding in which the value can be estimated at a money of the subject matter not
exceeding thirty million. The problem with these laws is that it appears difficult on the
part of jurisdiction because people found it difficult as to which court to institute the
suit whether to be instituted in the district court or the land division as the law deals
with the immovable property, or the part of the district court with the commercial
division.

3.0 CONCLUSION

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

The present statutory development therefore apart from facilitating the attainment of
justice in the society its impact has affected the existed jurisdiction of the courts that in
a large part of the country due to ignorance of law it has become difficult for the society
to comprehend with the new enactments as far as the jurisdiction of the courts is
concerned. All in all the statutory development in Tanzania is aimed not to outer
jurisdiction of the courts but the main purpose is to facilitate the attainment of justice by
adopting the system of specialization.
Qn:
Find out how do the provisions of the civil procedure code, 1966 reflects the
adversarial system of procedure.

OUTLINE

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

2.0 MAIN BODY

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

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

3.0CONCLUSION

BIBLIOGRAPHY

1.0 INTRODUCTION

The concept of Adversarial system

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

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

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

The parties are required to prepare their own cases for trial and make their own
investigations in this sense therefore there is the party investigation and party
prosecution. The party is supposed to call his own witnesses and to present his own case
at the trial. Also the parties are the masters of procedure as any procedural step taken in
10
Lamwai, R.M, PhD Dissertation, P.6
a civil case must be taken by parties .Example the law allows the parties to exhibit
interrogatory but does not bind them to do so, this is what is called dispositive election.
And finally the court gives his judgment after hearing both parties.

The adversarial system which owed its origin from the English Legal System
presupposes the giving of decision on the basis of winner takes all. This system
however was adopted in Tanzania by the reception clause which received the English
Laws both procedural and substantive11.

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

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

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

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

11
Article 17 (2) of the Tanganyika Order in Council 1920 (22/7/1920) imported into Tanzania the English common laws
the Doctrines of Equity, and statutes of General application.
12
[1973] LRT n 60
The existence of a dispute between persons presupposes the existence of a litis
contestatio this is established where there has been a demand by one of the parties by
way of a demand note and it has been met by a refusal by the other party. At this
instance it is on the discretion of the party making such a demand to take the matter to
court.

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

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

On the same aspect another sense of adversarial system is evidenced under Order VII
Rule 9 which requires the plaintiff to endorse on the plaint or annex there to, a list of
documents (if any) which he has produced along with it. The collection of evidence and
the presentation before the court is done by parties to the dispute; here the court plays a
passive role. The finding of evidence by parties to dispute therefore reflects the
adversarial system of dispute settlement.

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

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

Again under Order XVI Rule 2 (1) the cost for calling witnesses is incurred by the
parties which as a matter of procedure it is given to the court before the summons is
granted and the time to appear is fixed. This reflects adversarial system which
advocates for party investigation and prosecution as the parties are required to prepare
his own case for trial hence the cost incurred therein is of the parties.
The parties in the suit have the rights to examine the witnesses, the aim being to collect
enough evidence to support their suit Order XVIII Rule 2 (1) .The court in adversarial
system operates in the basis of judicial ignorance and thus the court let the case unfold
as presented by the parties; Hence the parties have to examine the witnesses they have
called as the parties are presumed to have the best knowledge of their case.

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

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

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

2.2 Observation of the Code In Relation to the Adversarial System

Having seen the reflection of the adversarial system in the code it has to be noted that
the court plays a passive role as stated by Biron J, on an appeal originated from the
Resident Magistrate of Morogoro in the case of JOHN MAGENDO V. GOVANNI
(supra), however he went further to point that the court should not play a total passive
role rather it should play assistance role as not to watch the parties making procedural
blunders. The court should advice the parties on procedure and what they are supposed
to do in order to prove their case.
Although the code is based on the adversarial system of the administration of justice,
there has been a judicial modification of the adversarial system in Tanzania to give the
court some active roles to play in the cause of hearing a case. The parties still have a
choice of the procedural steps. But where it is apparent to the court that one or both
parties is unable to proceed properly because of his ignorant or legal illiteracy then it is
upon the court to advise that party in a way that, it is one of the methods to guarantee
the access of justice in Tanzania.

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

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

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

TABLE OF THE CONTENTS

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

2.0: MAIN BODY

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

3.0: CONCLUSION

REFERENCE.

1.0: INTRODUCTION
1.1: The concept of parties to the suit.
In a general rule, in any civil suit there must be two parties to a suit. These parties are
the plaintiff and the defendant13. The general principle is that a plaintiff should be the
13
These parties are further categorized into necessary party(which refer to that party whose presence in court is necessary
for the purpose of issuing an effective decree) and proper party(which refer to that party whose presence in the court is
dispensable, that is its presence is not necessary for the court to issue an effective decree, but whose presence is important)
person who is directly claiming a right against another, or who is claiming directly
under him. Such right is not merely a moral right rather a legal right in law. On the
other hand, a defendant is a person against whom a right in law is claimed.

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

1.2: Meaning of Joinder of parties and Representative suit

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

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

14
This is in the fact that, where the court is of the view that joining of the parties would embarrass or delay the trial may
put the plaintiffs to their election or order separate trials or make such other order as may be expedient. This is as per Order
I Rule 2.
15
Cap 33 R.E.2002
the plaintiff and denied by the defendant. All these facts have to be proved by the
plaintiff in order to make him be entitled to relief.

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

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

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

It has to be noted however that there are basically two requirements as to the joinder of
parties to be possible. That is there must be a right to relief which has to be legal right
and not moral right. This legal right must arise out of the same act or transaction or
series of acts or transactions. It is not necessarily that the parties joined should have the
same relief or common relief claimed against the defendant. What is important is that
such claims arise out of the same act or transaction.

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

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

In order for a court to issue a representation order, it has to be satisfied itself that there
is a joint interest among the members of the group. The law regarding representative
suit is provided under Order I Rule 8 of the Civil Procedure Code. And as it was stated
in the case of DAUDA ABDULLAH V AHMED SULEIMAN 17 where the Court
when interpreting the provisions of Order I Rule 8 of the Kenyan Civil Procedure Code
which is in pari materia with the same provision under the Tanzanian Civil Procedure
Code, had this to say;
“We have to consider the language of Order I Rule 8 and be guided by it and not
attempt to extend or limit what according to its natural construction appears to
be ambit of the rules. The rule authorizes the bringing of a representative action
only where there are numerous persons having the same interest in the suit. It
says nothing whatsoever about suits founded in contract or in tort or any other

16
[1898]2Q.B.44,52
17
[1946]13EACA 321
 kind of suit. The sole test is whether the plaintiffs and persons whom they claim
to represent have the same interest”

Therefore, in the light of the above authority 18, a representative suit does not depend
upon the nature of suit. A representative suit depends upon the existence of the joint
interest in the suit by those seeking to represent others and those to be represented. In
actual fact when the court is considering a representative suit it has to take into account
whether there is a common interest among the parties and whether they have common
grievance19.

2.0: MAIN BODY

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

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

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

Both save time of the court. This is inline with the maxim that it is in the interests of the
republic that litigation should come to a speed end. Institution of separate suits may cost
18
DAUDA ABDULLAH’s Casesupra followed an English case of the DUKE OF BEDFORD V
ELLIS&OTHERS[1901]AC 7 which is one of the leading cases in Representative suit. In the latter case, Lord
McNaughten, J, had this to say;
In considering whether the representative action is maintainable you have to consider what is common to the class
and not what differentiate the cases of individual members… for the sake of convenience, it was a right given to a
common interest and common grievance…
19
In the case of MARK&CO LTD V KNIGHT S.J.CO LTD[1910]2KB 1021 the court said that there are three
requirements which the court must be satisfied with and those are; all members of the alleged class in a representative suit
must have a common interest; all members must have the common grievance; and the relief to be given in such a suit must
be beneficial to all.
the court the time to hear and determine all such suits which in actual sense do have
connection to one another at the same time on the part of representative suit,
representation of so many parties to a suit where all such parties do have common
interest and common grievance will cost the court time to hear all such parties with
common interests.

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

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

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

20
It is provided under Section 9 of the Civil Procedure Code. And it was discussed its elements in the case of KARSAN V
BROGHA [1953]20EACA 74.
 2.2: Differences between Joinder of parties and Representative parties.
The two concepts have some aspects of differences. These can be discussed as follows
herein below;

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

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

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

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

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

Representative suit is mainly in respect of plaintiffs only and not defendants while
Joinder of parties is in respect with both plaintiffs and defendants. This is due to the fact
that the practice of the court is that Representative suit is granted at the time of
instituting a case while Joinder of parties may even occur after the institution of a case.

In Joinder of parties different from Representative suit, there is conflict of interests

between the parties so joined in a suit and which sometimes may result into the
distortion of one party’s evidence due to the evidence given by the other party while
defending his claim, on the other side that is not the case in Representative suit since
the evidence adduced shall be directed towards the common interests of the parties and
common grievance. In other words, the plaintiffs will be joining their efforts towards
attacking their common enemy as stated by Jessel, MR in THE COMMISSIONER
OF SEWERS OF THE CITY OF LONDON V GELLATTY 21, where he stated;
“All persons having a common right which is invaded by a common enemy
although they may have different rights inter-se are entitled to join in attacking
that common enemy in respect of a common right”.(emphasis is mine)
21
[1876]3Ch.D 610,615.
In Joinder of parties any party can be added or struck out at any time of proceedings 22
while in Representative suit that can not happen. This is as per Order I Rule 10(2)
which provides that the court upon application of either party to the suit or on such
terms which may appear before the court to be just, may order the name of any party
improperly joined whether a plaintiff or defendant, be struck out.

In the Case of YOWANA KAHERE AND OTHERS V BUNYO ESTATE LTD 23

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

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

3.0: CONCLUSION.
22
This was discussed in the case of HORWOOD V STATESMAN PUBLISHING CO.LTD(1929)1LTR 59 at 57 where
the court stated that;
“…you should include all parties in one action subject to the discretion of the court if that inclusion is
embarrassing to strike out one or more of the parties…”
23
[1959]EA 319
To conclude this work it is better to point once again that though the two concepts seem
to be similar in one way or another, on the other side Joinder of parties and
Representative suit are different in terms of the way they operate and their effects
thereto. However both are aimed at maintaining the maxim that it is in the interests of
the republic that litigation should come to a speed end.

Qn “During the course of the proceedings in the court various pleadings,

summonses, and affidavits, lists and orders have to be served between the parties.
Service is done by the court through the court process servers or the court may
direct the parties to serve each other.”

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

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

In Blacks Law Dictionary,24 service means, the formal delivery of a writ, summons or
other legal process after three attempts, service had not been accomplished also termed
as service of the process. The final delivery of some other legal notice, such as
pleadings, be sure that a certificate of it is attached to the motion.
24
Blacks Law Dictionary, 8th Ed, p 1399
Process server means a person authorized by the law or by a court to deliver formally
process to a defendant or respondent.25

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

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

RATIONALE FOR SERVICE OF DOCUMENT

The service of document complies with the principle of Natural Justice, that is, Audi
alteram partem. This means, no man should be condemned unheard. For instance, when
the plaintiff has filed a suit before the court of law, it is a mandatory requirement that
the defendant should be informed of the claim raised against him so that he can be
afforded a chance to reply to such claim. Hence there is requirement of him to be served
with the claims.

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

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

25
Ibid p.1170
26
Ramanatha, R., (2004), Concise Law Dictionary, 2nd Ed, p.781
27
Ibid p.
It is a fundamental rule of the law of procedure that a party must have a fair and
reasonable opportunity to represent his case. And for that purpose, he must have a
notice of legal proceedings initiated against him. The service of summons in the
defendant is therefore, a condition precedent to a fair trial. If the summons is not served
on the defendant or it does not give him sufficient time to represent his case effectively,
no decree can be passed against him.

HOW SERVICE OF DOCUMENTS MAY BE EFFECTED

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

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

In any civil litigation, a suit is instituted by presentation of a plaint to the court. 28 The
law requires that the plaintiff at the time of filing a suit should furnish the court with
sufficient copies of the plaint necessary to enable the court to serve the same to
defendant or defendants29 or other parties to the suit. After proper presentation of a
plaint by the plaintiff to the court and a case assigned to a specific judge or magistrate

28
Order IV Rule 1 of the CPC
29
Order VI Rule 2(1) (a) (b) of the CPC
as the case may be, the court will order the issue of summons accompanied with a copy
of a plaint to be served to the defendant through process server or the plaintiff or his
agent requiring him to file a written statement of defence within 21 days from the date
of receiving the summons.30 These documents may be served together with summons.

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

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

30
Ibid Rule 1 Para (b)
31
Order V Rule 1 and 4 of the CPC
32
Order V Rule 12
33
Order V Rule 16 and Rule 18
Service on agent or manager
In case the defendant has empowered an agent to accept service or where defendant is
not residing in the local limit of the court, the service shall be sufficient on a manager or
agent who at the time of service personally carried on business or worked for such
defendant within such limits.34

Service on adult member of the family

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

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

Substituted service
Where the court is satisfied that there is reason to believe that the defendant is keeping
out of the way for the purpose of avoiding service or that for any other reason summons

34
Order V Rule 13
35
Order V Rule 15
can not be served on him by the ordinary way, the court will order that, the summons be
served by affixing a copy of it in some conspicuous place in the notice board of the
court house and also on some conspicuous part of the house (if any) in which the
defendant is known to have last resided or carried on business or personally worked for
gain, or in such other manner as the court thinks fit. This is called substituted service,
and is as effectual as if it has been made on the defendant personally. In such a case, the
court must fix such time for the appearance of the defendant as the case may require. 36
The process server will swear an affidavit that he affixed the summons in the place as
directed by the court.

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

Service by Post
If the court is satisfied that, to require a summons to served on a defendant in the
ordinary manner or by substituted service may cause undue delay and that the summons
may more conveniently be served by post, the court may order that the summons be
served by post37. When the court, or the defendant receives the acknowledgment
purporting to be signed by the defendant or his agent or his agent refused to take
delivery of summons when tendered to him, the court issuing the summons shall declare
that the summons had been duly served on the defendant. The same principle applies in

36
Order V Rule 20
37
Ibid O. V, r 30
a case where the summons was properly addressed, prepared and duly sent by registered
post, acknowledgment due; and acknowledgement is lost or not received by the court
within 30 days from the date of issue of the summons. When the summons sent by
registered post is returned with an endorsement “refused”, the burden is on the
defendant to prove that the endorsement is false38

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

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

Service Where Defendant is confined in Prison

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

Service of the defendant Resides in the jurisdiction of another court and where he is
outside Tanzania
Where the defendant resides within the jurisdiction of another court or in another state,
the summons may be send to the court where he resides 42. Such court will serve
summons on the defendant. Moreover, where the defendant reside in a foreign country,
the service of summons may be effected through the political agent there or a court
established there with authority to serve summons43
38
C.K. Takwan (1997) Civil Procedure, 4th, p 150 and also Order 21 of CPC
39
Ibid O. V, r 21 (2)
40
Acharya, N.K., (2004), Guide to CPC, 1st Ed, p.76
41
O.V, r.24
42
O.V, r.22 & 23
43
O.V, r 29 & 28
Service by Plaintiff or Agent
A plaintiff or his agent may himself serve summons on a defendant. In such an event
service may be deemed to have been duly effected if an affidavit is filed by the person
who effected the service stating that he personally served the summons on the
defendant, that the defendant was personally known to him or by exhibiting the
summons or a copy of it endorsed by the defendant with an acknowledgement of
service or giving reasons why such acknowledgement could not be obtained.44

Written Statement of Defence:

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

OTHER TYPES OF DOCUMENTS AND ORDERS

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

There are instances where the court may direct the party or parties to serve documents
to each other. When this is done, then the other party who is receiving the document has

44
O.V, r. 31
45
O.VIII, r. 14
to sign the original document as evidence that he has received the same. Example of
this documents are like written submission, reply to the written submission and
rejoinder to the written submission. Sometimes the party may serve the other party
documents during the hearing. For instance the documents which the party wants to rely
as evidence but did not annex it when filing the plaint.

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

Qn; The failure to frame issues amounts to procedure

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

1.0INTRODUCTION.

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

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

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

Issues are to be frame in respect only of those facts which have been alleged by one
party and either denied or not admitted by the other party 50, that is to say, a material
proposition of fact or law is asserted or affirmed by one party but denied by the other 51.
Each material proposition affirmed by one party and denied by the other shall form the
subject of a distinct issue52.

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

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

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

2.0Framing of Issues.

The assertion that failure to frame issues amounts to procedure irregularity and not
illegality is true. This point can be substantiated by the case of NORMAN V.
OVERSEAS MOTOR TRANSPORT (TANGANYIKA LTD)54 which stated that the
failure to frame issues is an irregularity which is not fatal so long as the parties at the

53
[1979] LRT n. 11
54
[1959] E.A 131
trial knew what is the real question between them, and evidence is taken on it and the
court considers it.

2.1 Importance of framing issues.

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

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

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

The other importance of framing issues relates to appeals. If the case goes to appeal, the
appellate court has to confine itself to issues framed in the trial court. The court of

55
[1973] E.A 103 at 105
appeal cannot determine issues which were not framed during the trial but it shall deal
with issues of law though they were not framed or were abandoned during the trial56.

2.2 Consequences of failure to frame issues.

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

The court will not hold that the omission or failure to frame issues was prejudicial to the
parties if it is of the opinion that despite the fact that no issues were framed, the parties
knew what was at issue and produce evidence in what they knew was at issue. This was
also stated in AGRO INDUSTRIES LTD V. ATTORNEY GENERAL 59 where it
was held that;
“when a trial court allows parties to address it on any issues, the court must
conclusively determine those issues, notwithstanding that the issues were not in
the pleadings”.

Omission or failure to frame issues shall be regarded as prejudicial to the parties where
it results into parties failing to direct evidence to the issues. In such a case if any

56
SHAIKH MAKBUL V. UNION OF INDIA AIR 1960 Ori 146.
57
MUHAMMAD YUSUF V. MUHAMMAD YUSUF AIR 1958 MAD 527
58
WALI SINGH V. SOHAN SINGH AIR 1997 CaL 386
59
[1994] TLR 43 (CA).
injustice occurs it is incurable except by quashing the decision of the court. This point
was discussed in the case of JOSEPH MARCO V. PASCAL RWYEMAMU60.

3.0 Conclusion.
Basing on what we have discussed above, we are of the opinion that the framing of
issues is very important and that the failure to do the same may either be illegality or
procedure irregularity depending on the facts of each case. Where such omission or
failure to frame issue leads to injustice, then the court will quash the decision made
basing on such omission.

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

Discuss the assertion above.

1.0INTRODUCTION

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

60
[1977]LRT 59
61
Garner B. A., (2004), Black’s Law Dictionary, (8thed), Thomson West, U.S.A
 Viva voce, being an oral evidence, is well defined under section 3 (1) of
Tanzania Evidence Act, 1967 (hereinafter referred to as TEA) to mean all
statements, which the court permits or requires to be made before it by witnesses,
in relation to matters of fact under inquiry.

2.0DISCUSSION ON THE RULE REGARDING VIVA VOCE (ORAL

EVIDENCE)

2.1The General Rule regarding to Viva Voce:

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

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

The other party shall then state his case and produce his evidence, if any, and
may then address the court generally on the whole case, as provided for under
rule 2 (2) of the same Order.
 The basic principle regarding viva voce is well stated in the case of Premchand
Raichand Ltd & Another v. Qurray Services of East Africa Ltd. & Others62 that:
“so far as possible all evidence in the suit should be taken viva voce before
the trial court. Any one who seeks to have evidence taken in any other
way is seeking an indulgence of the court and must show good reasons to
justify his application.” The point of discussion here is on the issue of what
amounts to good reason. In answering the above issue we are of the view
that on the side of the party, there may be personal reasons, such as ill-
health or inability to obtain a visa or the applicant has to show that the
evidence is necessary and the witness can not be procured to appear before
the court of law so as to testify.

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

2.2 Exception to the general rule:

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

The first circumstance is that, there is a time the court accepts evidence by way of
an affidavit as an exception to general rule. An affidavit is a document which

62
[1969] E.A. 514
63
[1973] L.R.T 59
 contains sworn statements of facts signed by the deponent before the
commissioner for oaths which can be used as evidence in proceeding before
court.

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

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

The second circumstance under which the court accepts evidence other than viva
voce is on the point of commission as provided for under order 26 of The Civil
Procedure Code65. Commission can be defined as an authority to exercise a
power or a direction to perform a duty; for example, a commission of a justice of
the peace66. Under order 26 rule 1 of the CPC the court may examine witnesses
who can not appear before the court. Under this order the witnesses are of two
types, (a) those who are within the jurisdiction of the court but can not be
compelled as they are protected by law for instance Diplomats. To know who is
protected and who is not, one has to look at the law. (b) those who are outside of
the jurisdiction of the court.

Application for commission may be made either by courts on motion or either of

the parties to move it. The application must be supported by an affidavit which
will contain facts which necessitate commission powers of court as provided for
64
[1950] 17 E.A.C.A. 99
65
. Act No. 49 of 1966
66
. Oxford Law Dictionary, New Edn. P 83
 under order 26 rule 4 of the CPC (supra). The court has power to issue a
commission for a witness who is beyond territorial limits of its jurisdiction. It
may also order commission of a witness who is about to leave its territorial
limits. A person to whom a commission is issued is known as commissioner who
has the power to examine witnesses, record the evidence and return the records to
the court which issued the commission and where it is possible, the witness will
be given the day and time of examination and may be given a right to cross
examination.

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

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

3.0ADVANTAGES AND DISADVANTAGES OF VIVA VOCE (ORAL

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

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

Secondly, viva voce (oral evidence) gives an opportunity to the opponent

party to cross-examine a witness who has testified so as to test his
demeanor.

Thirdly, viva voce (oral evidence), being a direct evidence, reduces the risk
or tempering with the evidence.

Fourthly, viva voce (oral evidence) enables the court to ask the witness for
more clarification on controversial issues since there is eye to eye contact.

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

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

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

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

Qn: You are an advocate for the defendant in a suit in the High Court of Tanzania
Land Division at Dar es Salaam for the recovery of possession of land. Discuss
what course or courses of action you would take in the following alternatives.
a) The plaintiff has obtained an ex-parte temporary injunction to restrain the
defendant from entering or remaining the land in dispute.
b) The plaintiff’s defense to counter claim contain solely evasive denials.
c) On the date fixed for mediation the plaintiff and his advocate are absent.
d) On the date fixed for hearing of the suit the defendant is admitted at the
Muhimbili Orthopaedic Institute.

OUTLINE

1.0 INTRODUCTION
2.0 MAIN BODY:
Discussion on the issues
3.0 CONCLUSION
Bibliography
1.0 INTRODUCTION
The question poses different issues to be dealt with by us, as the advocates of
the defendant. The following are the summary of the issues to be dealt with
in the course of facilitating the defendant to recover the possession of the
land in dispute. These issues are extracted from the instances given in the
question.

 The action to be taken in the course of advising the defendant where

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

2.0 MAIN BODY:

Discussion on the issues

To start with the first issue where there is ex-parte temporary injunction
issued against the defendant, it is better to introduce the key concepts in the
issue. The concept of temporary injunction means a judicial process whereby
a party is required to do or to refrain from doing any particular act.67
67
C.T. Takwani (2004) Civil Procedure p 229
Temporary injunction is thus an injunction issued during the pendency of
proceeding. Mulla states that, an injunction is temporary, for it endures only
until the suit is disposed of or until further orders of the court.68

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

The law further is to the effects that before granting the temporary injunction
the court is duty bound to direct notice of application of the same
(injunction) to the opposite party with an exception that if such notice is
given will cause undue delay and that the object of granting injunction will

68
V.K.Gupta (2004 )Mulla Code of Civil Procedure p1584
be defeated then such notice will not be given to the opposite side 69.
Therefore where the injunction Order is granted by the court without notice
to the opposite party then that will be ex-parte temporary injunction.

Though it is necessary and mandatory for the defendant to be given a notice

in regard to injunction, the court retains discretionary powers to grant ex-
parte temporary injunction. The plaintiff must show cause why notice should
be dispensed with, such reason can be given viva voce or by court’s instance.
This is supported by the case of IBRAHIM V NGAIZA70 where the judge
stated that the granting of temporary injunction is a matter of discretion of
the court and this discretion can be said to have been judiciously exercised if
the court appreciated the facts and applied those facts to the principle
governing issuance of temporary injunction. One of the principles is that the
court should be satisfied that there is the substantial issue that is triable
between the parties and that there is the likelihood that the applicant might
be entitled to relief and whether the status quo should not be preserved until
the dispute is investigated.71

In the application for the temporary injunction it is the duty of the applicant
to show that the waste that is going to be occasioned is not an ameliorating
waste that it is going to injure the property and it is substantial. The case of
RICHARD WHEELER V. CLACSTON ALIMAN AND A.C.
69
Order XXXVII Rule 4 of the CPC.
70
(1971) HCD 249
71
The same view is stated in the case of ALLOYS ANTHONY DOWE V ALLY JUYAWATU (1969) HCD 268
DOWDEN72 emphasised on the principle by stating that the waste should
not be ameliorating nor trivial, it must be waste of an injurious character. It
must be waste of not only of injurious character but also of substantially
injurious character and if either the waste be real ameliorating waste that is a
proceeding which result in benefit not injury. Then temporary injunction
should be granted.

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

72
(1978) 3A.C 709 at 724.
 “Any Order for an injunction may be discharged, or varied, or set
aside by the court on application made thereto by any party
dissatisfied with such Order”.

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

This drives us, as the advocates for the defendant to the relevant provision
relating setting aside of the Order of ex – parte temporary injunction; the
provision which is specific in that respect for our case is the application to
set aside ex- parte decree73 as provided under Order IX Rule 13 of the CPC.
In setting a decree or a judgement we shall serve notice to the plaintiff to that
regard as the requirement enshrined under Order IX Rule 14 of the CPC. The
application will be made as per Order XLIII Rule 2 of the CPC.

In the second part of the question where the plaintiff’s reply to the counter
claim contains evasive denials it is better as the advocates for the defendant
to start by understanding the concept of counter claim. Counter claim is
73
Decree is defined under section 3 of the CPC to mean formal expression of an adjudication which, so far as regards the
court expressing it conclusively determines the right of the parties with regard to all or any of the matters in controversy
in the suit and may be either preliminary of final and shall be deemed to include the rejection of a plaint in the
determination of any question within section 38 or section 89 but shall not include a) an adjudication which an appeal
lies as an appeal from an Order or b) any Order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly
final. (Underscoring is ours)
provided under Order VIII of the CPC, however the code does not define the
concept. A counter claim may be defined as a claim made by the defendant
in a suit against the plaintiff it means the claim independent of, and separable
from, the plaintiff’s claim which can be enforced by a cross action.74

A counter claim is a claim brought by the defendant in civil proceedings

against plaintiff on a cause of action which arose before the presentation of
the written statement of the defence 75. A counter claim is treated as cross suit
and is governed by the rules of pleading as a plaint as laid down in Order VII
of the CPC.

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

In regard to a reply to the counter claim as stipulated under Order IX Rule 3,

a plaintiff is supposed to deny specifically each allegation of fact which he
74
Takwani, Op.cit p 184 referring Concise Oxford Dictionary 1995 p 306
75
OrderVIII Rule 9 of the CPC
76
Order VIII Rule 11(2)
does not admit the truth. It is further provided that in every allegation if there
is no specific denial of allegation of fact in a plaint (counter claim) then such
facts will be taken as to have been admitted except where a person is under
disability77.

From the question given we have been told that the plaintiff’s defence to
counter claim contains solely evasive denials. Now as provided under Order
VIII Rule 4 of the CPC the law is to the effect that the denials from opposite
party do not include a vague, routine denial and where a defendant denies an
allegation of facts in the plaint, he must not do it evasively, but answers the
point of substance. It was held in the case of THORPE V HOLDWORTH78
that a defendant is bound to deny that any agreement or any terms of
arrangement were ever come to, if that is what he means; if he does not mean
that, he should say that there were no terms of arrangement come to, except
the following terms, and then state what the terms were; otherwise there is
no specific denied at all.

From the discussion above it can be said that when the plaintiff makes
evasive denials of a claim made against him it will be taken that he has
admitted the facts of the counter claim. As advocates of the defendant we
will bring it to the knowledge of the court that the claims against the

77
Order VIII Rule 5 ibid
78
(1876) 3 CD637
plaintiff have been admitted by the plaintiff. Thus, the provision of Order
VIII Rule 4 of the CPC will apply.

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

“Where a party to a case or the party’s recognised agent or advocate

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

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

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

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

The summons would have indicated that in case of non appearance the court
would proceed ex – parte. As advocates for the defendant at this instance
where there has been non appearance of the defendant and there is ex-parte
hearing therein, we have two channels to employ;

79
B.D.Chipeta, (2002) Civil Procedure in Tanzania: A Student’s Manual, p 126
The first course is pursuant to order IX rule 7 of the CPC that if there was
the adjournment of the hearing of the suit ex-parte by the court and the
defendant appears and assigns good cause of his previous non appearance
the defendant will be heard in answer to the suit as if he had appeared on the
day fixed for his appearance subject to the direction by the court to pay costs
or otherwise as the court may decide. Now the defendant being admitted to
hospital is the good cause for his previous non appearance thus the court has
to take it into consideration by allowing the defendant to proceed with the
suit.

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

Back to our situation the defendant was admitted to the hospital, the law is
clear that an ex-parte judgement can be set aside if there are sufficient
80
[1975] LRT No 17
reasons for doing so. For instance in the case of OSANGA V. NABUNGO81
it was held that ignorance of crucial procedure was sufficient ground to set
the judgement aside.

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

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

81
(1965) E.A384
82
B.D.Chipeta op cit p. 121 -122. see also Gupta op cit p 919 - 920
However the rule which allows the advocates to appear for the defendant and
ask for adjournment is not absolute. It has been held in the case of
MUKERJEE V MUKERJEE83 that the fact that an advocate appeared on
the first hearing to seek an adjournment was held to be not sufficient ground
to set aside an ex-parte decree if after refusing an adjournment he withdraws
from the case and thus the defendant is left unpresented and hence no
appearing84. The same principle is reiterated in the cases of JESSE
KIMANI V MC CONNEL & ANOTHER85and MOSHI TEXTILE’S
Case.

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

CONCLUSION
Therefore from the discussion above, as advocates of the defendant on a suit
in the high court involving the recovery of the land by the defendant, we are
83
(1907) 34
84
Gupta loc cit
85
(1966) EA 547
of the view that such recovery can be achieved by following procedures and
laws, depending on the circumstance given in the question. That, the courses
of action to be taken will depend on the respective instance at a time and also
on the circumstances of each particular case. In our opinion the knowledge of law
and procedure is a tool towards the attainment of justice.

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

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

1. O INTRODUCTION.
In our introductory remark it is our duty to define the word examination as used under
the law; this is simply because the word witness is common to the members of the class.
Examination means the questioning of a witness on oath or affirmation, and in court of
law witness is subject to examination in chief cross-examination and re examination86.

When the suit comes up for hearing, the party having the right to begin will state his
case and produce his evidence in support of the issues, which he is bound to prove. The
order in which parties will be required to produce evidence depends largely on the
question as to who has the burden of proving a particular issue. In general, the plaintiff,
being the person who asserts facts on which his cause or causes of action are founded,
has the right to begin, under the civil law the right to begin the case is vested to the

86
E.Martin, A Dictionary of Law, 5th, 188
plaintiff unless the defendant admits the facts alleged by the Plaintiff as per O XVIII r 1
of the Civil Procedure Code (herein after is referred to as CPC).

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

“The party applying for a summons shall, before the

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

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

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

As a general rule, all witnesses must be examined in open court 87 and on

oath or affirmation, that is, they must swear or affirm (depending on their
religious faith) to tell the truth, the whole truth and nothing but the truth. The
only exceptions to this rule are children of tender years, the who, if the court
is satisfied, after due inquiry, that although they do not know the nature,
value and obligations of oath. Such witnesses may give evidence without
being sworn or affirmed.

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

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

87
O XV111 r 4
purpose of it is, so to speak, to mend holes or repair the damage done by
cross- examination.

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

2.0 MAIN BODY

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

Therefore from the case it remain that it is the duty of parties themselves to
call for the witnesses though there are some circumstances in which the
court can do so, these circumstances will be explained later.

88
[1988] TLR 73
Therefore in examination of the witness called by the parties the court has
the following powers in relation to examination.
Firstly the court is responsible for the order of re examination of the facts or
matter, which is new by the adverse party, provided the party has permission
from the court as per s.147 (3) of the Evidence Act.

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

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

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

Firstly to compel any witness to answer any question or produce any

document, which such witness would be, entitled to refuse to answer or
produce under Part II of this Chapter (Evidence Act) if the question were
asked or document were called for by the adverse party.

Also to ask any question, which it would be improper for any other person to
ask under sects 158 or 159, which provides for the court to decide, when
questions shall be asked and when witness compelled to answer, and also for
the questions not to be asked without reasonable grounds.

Lastly, to dispence with primary evidence of any document, except in the

case excepted by this Act, it is provided that documents must be proved by
primary evidence except in the cases mentioned under the Evidence Act, and
the circumstances are provided under s.67 of the Evidence Act.
(b) The scope of powers of civil courts to summon and examine witnesses
on its own accord.

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

It is pointed out that the power is normally used to examine expert

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

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

be exercized very rarely the judge stated that, this rule empowers the

89
(1977) LRT.59
90
(1977) LRT 23
magistrate to call at his own initiative an additional witness at any stage in
the proceeding if he thinks it is necessary to do so, the broad rule being that
it is for the party to present his own case to the court and not for the court to
make a case for litigant. The instances in which the provisions of this rule
may be invoked will depend on the facts of each case. Furher more in the
case of Salum V Said91 it is held that this being judicial discreation, it has of
course, to be exercised judicially, it must only be exercised where the court
is satisfied that it is for the interest of justice to do so and also it is only
rarely that a court will, of its own motion, in cases such as this seek to
clarify an issue by requiring an additional witness

3.0 CONCLUSION

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

Qn: Discuss the circumstances under which a court of law will make the following four
orders.
(i) Amendment of pleadings
91
(1970) HCD n 95
 (ii) Discovery and Inspection
(iii) Striking out of pleadings
(iv) Summary judgement

OUTLINE
1:0 INTRODUCTION

2:0 AMENDMENT OF PLEADINGS.

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

3:0 DISCOVERY AND INSPECTION

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

4:0 STRIKING OUT OF PLEADINGS

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

5:0 SUMMARY JUDGEMENTS

5:1 The circumstances under which the court of law would make an order of summary
judgement.

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

2:0 AMENDMENT OF PLEADINGS.

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

2:1 The circumstances under which the court of law would make an order of
amendment of pleadings.
At any stage of the proceedings, the court has the power to allow either party to alter or
amend his pleadings in such a manner and on such terms as may be just. But all such
amendments must be made for the purpose of bringing out for determination the real
questions in controversy between the parties93.

This rule, like most of the rules governing pleadings, is based on the principle that
pleadings must raise all matters that are in dispute so that either party is aware of what
the other party contends, and so that a multiplicity of legal proceedings is avoided. It is
in this vein that, such amendments must be freely allowed if thereby the real substantial

92
Henry C. B, (1991) Blacks Law Dictionary, 6th Ed. p.798.
93
Order vi rule 17 of the civil procedure code Act No.49 of 1966.
questions can be raised between the parties and a multiplicity of legal proceedings
avoided. It should be borne in mind that, the making of the amendments is not really a
matter of power of a court but it is the duty of the court to allow such amendments, so
that substantial justice may be done94.

Previously, the proviso under Order vii Rule 11(a), as amended, used to reject a plaint
when and where it did not disclose the cause of action. But the G.N. No. 228 of 1971
now has cured the position under a proviso. That, provided that if the court is satisfied
that if the plaintiff is permitted to amend the plaint, the plaint will disclose the cause of
action if the court may allow the plaintiff to amend the plaint subject to such condition
as to costs or otherwise as the court may deem fit to impose. The same position was
reiterated in the case of HANS NAGORSEN .v. BP TANZANIA LIMITED 95, where
Kyando J, ordered the plaint to be amended so that defects pointed out could be
rectified.

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

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

3:0 DISCOVERY AND INSPECTION

94
HARJI KARSAN .v. MONJEE RAGHAVJEE (1943) E.A.C.A.10
95
[1987] TLR n.175 at 183.
96
[1997] TLR 184 (CA)
In a general sense, discovery is the ascertainment of that which was previously
unknown, the disclosure or coming to light of what was previously hidden, the
acquisition of notice or knowledge of given acts or facts, as in regard to the discovery of
fraud affecting the running of the statute of limitations or the granting of a new trial for
newly discovered evidence97.

Therefore, it is the utter purpose of discovery to make the other party disclose the
existence of documents and the inspection of documents by the party applying for such
discovery. Inspection is to examine, scrutinize, investigate, look into, check over, or
view for the purpose of ascertaining the quality, authenticity or conditions of an item,
product, document, residence, business etc98.

Discovery and inspection are governed under Order xi of the CPC. In any suit the
plaintiff or defendant by leave of the court may deliver interrogatories in writing for the
examination of the opposite parties or any one or more of such parties, and such
interrogatories when delivered shall have a note at the foot thereof stating which of such
interrogatories each of such persons is required to answer99.

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

97
Henry. Op. Cit 322.
98
Ibid. p.547.
99
Order xi Rule 1. of the CPC.
case either directly by obtaining admission or indirectly by impeaching or destroying
your adversary’s case100.

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

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

4:0 STRIKING OUT OF PLEADINGS

Striking out is the procedure for attacking pleadings and originating processes on the
ground that they are not correctly formulated. A successful striking out application may
result in an action being stayed or dismissed, the pleading being struck out and
judgement being entered or it may result in the offending part of the pleading being
struck out101.

4:1 The circumstances under which the court of law would make an order of
striking out of pleadings.
Generally, a court may, at any stage of the proceedings, order that any matter in any
pleading which may be unnecessary or scandalous or which may tend to prejudice,
embarrass or delay the fair trial of the suit be amended or struck out 102. There is usually
100
Vinay, K.G. (2005), Mulla Code of Civil Procedure, 14th Ed. p. 949
101
Stuart, S. (1995), A Practical Approach to Civil Procedure, 2nd Ed. P. 361.
102
Order vi Rule 16 of the CPC.
no difficulty in deciding what matter is necessary. The difficulty lies in deciding what
matter is scandalous, embarrassing or prejudicial to a fair trial of the suit. A matter is
said to be scandalous if it is indecent or needlessly offensive, or is an allegation made
for the malignant purpose of abusing or prejudicing the opposite party103.

In considering the question whether a pleading tends to prejudice, embarrass or delay

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

Incomplete allegations of facts can be struck off and further, the allegations which are
totally unnecessary and have been made with a view to embarrass the defendants cannot
be permitted. A pleading is embarrassing if it is so drawn that it is not clear what case
the opposite party has to meet at the trial. But a pleading is not embarrassing merely
because it is prolix104.

5:0 SUMMARY JUDGEMENTS

This is a procedural device available for prompt and expeditious disposition of
controversy without trial when there is no dispute as to either material fact or inferences
to be drawn from undisputed facts, or if only question of law is involved. Any party to a
civil action to move for a summary judgement on a claim, counter-claim, or cross claim
when he believes that there is no genuine issue of material facts and that he is entitled to
prevail as a matter of law105. Summary judgement is a procedure whereby a plaintiff can
apply for judgement against a defendant, usually shortly after saving a Statement of
103
Chipeta, B.D (2002) civil Procedure in Tanzania, p.69.
104
Vinay. Op. Cit. P.809.
105
Henry Op. Cit. 1001.
Claim, without proving the case at trial. The policy behind the procedure is to prevent
delay in cases where there is no defence106.

5:1 The circumstances under which the court of law would make an order of
summary judgement.
Under Order xxxv of the CPC, it is clear that, in a summary suit, the trial begins after
the court has granted leave to the defendant to contest the suit. Having done this, the
court can proceed upto the stage of hearing the summons for judgement and passing the
summary judgement in favour of the plaintiff. This will be done by the court under two
circumstances: If the defendant has not applied for leave to defend or if such
applications has been made but refused; or if the defendant who is permitted to defend
fails to comply with the conditions on which the leave to defend was granted107.

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

106
Stuart, S. P. 158.
107
Vinay, Op. Cit. P.1552.
OUTLINE

1.0 INTRODUCTION

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

2.1 THE REGISTERED OFFICE OF THE PLAINTIFF COMPANY IS

LOCATED IN NAIROBI, KENYA

2.2 THE PLAINTIFF DOES NOT FILE THE REPLY TO THE

DEFENDANT’S COUNTERCLAIM

2.3 THE DEFENDANT DIES BEFORE THE DATE OF HEARING

3.0 CONCLUSION

4.0 REFERENCES

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

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

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

 2.1 The Registered Office of the Plaintiff Company is located in Nairobi, Kenya
Since the registered office of the Plaintiff Company is outside Tanzania, he will be
required to pay the security for costs. According to O.XXV r, 1(1) of the CPC If the
plaintiff is residing outside Tanzania and that such plaintiff does not posses any
sufficient movable property within Tanzania other than the property in the suit, the
court may, either on its own motion or on the application of the defendant, order the
plaintiff within a time to be fixed by the court, to give sufficient security for payment of
all costs incurred and likely to be incurred in the suit by the defendant. The case of
Farrab Incorporated .v. Brian J Robson and others 108 reiterates this principle, where
the defendant to the suit filed in Kenya made an application for security for costs on the
ground that the plaintiff was a corporation registered and having place of business at
Moshi, Tanganyika. The court granted the application.

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

108
(1957) E.A 441
109
[1990] TLR 24
VIII r, 11 and r, 13 of the CPC. The trial judge granted the application and entered
judgement on the counterclaim. On appeal against the judgement on the counterclaim
the court held that “failure to file a reply to counterclaim within twenty one days
contravened O. VIII r, 11 of the rules of CPC”.

2.3 The defendant dies before the date of hearing

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

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

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

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

OUTLINE

1.0 Introduction

2.0 Main Body

2.1 Parties to a suit

2.2 Joinder of defendants

2.2.1 Interpretation of ‘common question of law’

2.3 Third Party Procedure

3.0 Conclusion

3.0 Bibliography

1.0 INTRODUCTION
The general rule is that no person is compelled to join as plaintiffs or defendants with
others in one suit. However the law makes provisions for those who want to sue jointly
to do so because we are operating an adversarial system, which system presupposes an
individualistic approach to complaint; in other words, under adversarial system the
parties to proceedings are masters of the procedure.

Joinder of parties has one intention, that of avoiding a multiplicity of suits; and it is in
the interest of the public that litigation should come to a speedy end. Whether one is
going to need the same evidence if several suits were brought, it is in this case advisable
to join the parties. Also to minimize the costs of proceedings or litigation as well as
saving time of the courts are reasons behind joinder of parties.

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

2.0 Main body

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

2.1 Parties to a suit

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

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

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

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

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

2.2 Joinder of Defendants

As said above, a person may sue on his own behalf, but subject to certain conditions,
several persons may sue jointly. Similarly, a person may be sued alone, but again
subject to certain conditions, several persons may be sued jointly in a single suit. I will
now proceed to examine the circumstances in which there can be proper joinder of
defendants,

All persons may be joined as defendants against who, a right to relief, in respect of or
arising out of, the same act or transaction or series of acts or transactions, is alleged to
exist, whether jointly, severally or in the alternative; where if separate suits were
brought against such persons, any common question of law or fact would arise. ii It is
not necessary for the joinder of defendants that every defendant should be interested as
to all the reliefs claimed in a suit against him, or as to every cause of action included in
any proceeding against him.iii In other words, it is immaterial that the causes of action
against the defendants are different. A plaintiff is entitled under this rule to join several
defendants in respect of several and distinct causes of action. Where the court is of the
opinion that the joinder would embarrass a defendant or put him to unnecessary
expense, it will order separate trials

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

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

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

The second issue is whether Juma and Adam could be jointly sued in single suit. As
stated above, a plaintiff is not compelled to sue any defendant. It is the plaintiff who
chooses who to sue. However, the law allows him/her to join defendants under
circumstances as given under Order 1 rule3.vi Defendants may be joined if the right of
relief against them arises out of the same act or transaction, or a series of acts or
transactions. If separate suits were brought against defendants common question of
facts or law may arise, that is, whether you are going to need the same evidence against
all the defendants.
2.2.1 Interpretation of ‘common question of law’
The position of Order l rule 3 (supra) is construed liberally. It implies that the question
of law is common but the liability of defendant may be separate or general. In the case
of Harwood v. Statesman Publishing Coy Ltd,vii the judge stated:
“You must look at the language of the rules and construe them
liberally and where there are common question of law or fact
involved in different causes of action, you should include all
parties in one action subject to the discretion of the court if such
inclusion is embarrassing, to strike out one or more of the parties.
It is impossible to lay down any rule as to how the discretion of the
court ought to be exercised. Broadly speaking where claims by or
against different parties involve common questions of law or fact
bearing sufficient importance in proportion to the rest of the
action to render it desirable that the whole of the matters should be
disposed of at the same time, the court will allow the joinder of
plaintiff or defendants subject to the courts discretion as to how
the action should be tried.”
How to give a liberal construction of rule, the above case gives a clue, that is, common
questions of fact or law to bear the same evidence. But the court has the final say to
order joinder or strike out.

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

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

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

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

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

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

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

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

2.3 Third Party Procedure

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

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

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

In order that a third party may lawfully be joined in a suit the subject matter between
the third party and the defendant must be the same as the subject matter between the
plaintiff and the defendant and the original cause of action must be the same. This was
so held in the case of Yafesi Walusimbi v. A-G.xiv This case was elaborated in the case
of Edward Kironde Kagura v. Casta Pereira,xv also the case of Overseas Touring
(Road Services) Ltd. v. Arica Produce Agency.xvi According to the two cases, third
party procedure is limited to claims for contribution or indemnity only. In the case of
Kironde (supra) the right to indemnity arises mainly out of a contract but it is not
confined to contracts. That is a general situation. But in East Africa there has been
some modification. The courts have accepted the position that a joint tort feasor
proceedings can be introduced in cases of right to indemnity or contribution. This is by
virtue of the case of Champion Motor Spares Ltd v. Barclays Bank D.C.O and
Another.xvii
In England we obtained a summary on the above situation in Birmingham & District
Land Co. v. London and North Western Rly Co. xviii This case was interpreting the
provision of Order l6 rule 48 of the Supreme Court Practice which is similar to our
Order 1 rule 14 (supra). According to that case, “in order to bring a case within Order
16 rule 48 (equivalent to Order 1 rule 14 (supra)) it is not enough that if the plaintiff
succeeds the defendant will have a claim against the third party but defendant must
have against the third party a direct right of indemnity as such which right must
generally if not always arise from a contract express or implied.”

In the case of Parry v. Carsonxix we can find a general rule that, so that a third party
action can be competent the defendant must show that in case he is found liable to the
plaintiff then he has a right to recover against a third party. He shows that in his
affidavit and in his pleadings. Such a possibility exists only when the subject matter is
the same, that is, it is possible when there is a direct connection. In this case the judge
said,
“In order to bring himself within the ambit of Order 1 rule 14 the
applicant must show upon the face of his pleadings and upon his
supporting affidavit that he would be entitled to indemnity from the
third party in respect of the amount which the plaintiff claims from him
in the event of that claim being successful.”
This conclude the discussion on point of law concerning third party. In practice an
application to file a Third Party Notice is made ex parte, that is, in the absence of the
plaintiff and it must be supported by an affidavit. Order 1 rule 14 (2) (supra) does not
indicate the method of application; hence, we fall back to Order XL111 rule 2 (supra),
that the application is by way of a Chamber Summons supported by affidavit.
In the above circumstances and basing on the principles of law therein, I advise the
would be defendants, that is, Juma and Adam, that upon being sued by Asha and after
filing their defence, they should also file an application by way of Chamber Summons
under Order 1 rule 14 (2) (supra) and any other enabling law, for leave to produce a
third party notice. Such an application must be supported by an affidavit which should
state, inter alia, the nature of plaintiff’s case, stage to which the proceedings have
reached, nature of defendants’ claim against the third party. It should also state the
relationship between the defendants and the third party- all those in terms of Order 1
rule 14 (supra). This procedure under Order 1 rule 14 (supra) is intended to save time
of the court and to minimize costs. In the final result then the third issue will therefore,
have been answered in the affirmative.

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

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

OUTLINE:
1.0INTRODUCTION.

2.0THE CONCEPT OF TEMPORARY INJUNCTION.

3.0CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED.

4.0PRINCIPLES GOVERNING TEMPORARY INJUNCTIONS.

5.0WHETHER THE REMEDY IS ABUSED BY COURTS FOR FAILURE TO

ESTABLISH RULES GUIDING COURT DISCRETION IN GRANRING THE
SAME.

5.0CONCLUSION.
6.0BIBLIOGRAPHY.

1.0INTRODUCTION.

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

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

2.0THE CONCEPT ASPECTS OF TEMPORARY INJUNCTION.

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

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

-that any property in dispute in a suit is in danger of being
wasted, damaged, or alienated by any party to the suit of or suffering
loss of value by reason of its continued use by any party to the suit,
wrongly sold in execution of a decree; or
- That the defendant threatens, or intends to remove or dispose of
his property with a view to defraud his creditors, The court may, by order
grant a temporary injunction to restraint such act or make such other
order, for the purpose of staying and preventing the wasting, damaging,
alienation, sale, loss in value, removal or disposition of the property as the
court thinks fit, until the disposal of the suit or until further orders.
110
Mohd Siraj Ahmad V.State Election Commission AIR 2000 Gau 101
Similarly, in any suit for restraining the defendant from committing a breach of contract
or other injury of any kind, whether compensation is claimed or not, the plaintiff may,
at any time after the suit has been filed, and either before or after judgement, apply to
the court for a temporary injunction to restrain the defendant from committing such
breach of contract or injury complained of, or any breach of contract or injury of a like
nature arising out of the same contract or relating to the same property or right111.

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

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

Orders of temporary injunction may be made ex parte as provide under order 37 rule 4.
The court must in all cases direct notice of the application to be given to the opposite
party. The court before whom such an application is made can only proceed ex parte
where it appear that the giving of such notice would cause undue delay and that such
undue delay would defeat the object for which the application has been made as shown
in Hans Wolfgang Golcher v G. Manager Morogoro Canvas Mill Ltd 113 Maina, J stated
that;
111
. Order 37 Rule 2(1) of C.P.C.
112
. Civil Case 2006 (Unreported)
113
. (1987) T.L.R. 78.
 “…the rule that the court shall in all cases, except where it appear that the
object of granting the injunction would be defeated by the delay, before granting
an injunction, direct notice of the application to be given to the opposite party is
mandatory… If the opposite party can be served without delay, as was the
position in this case, an ex parte injunction should not be issued.
”
The same was insisted in the case of Tanzania Knitwear Ltd. V Shamshu Esmail114.

3.0 CASES IN WHICH TEMPORARY INJUNCTION MAY BE GRANTED.

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

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

alienated by any party to the suit, or wrongfully sold in execution of a decree, or;
 That the defendant threatens or intends, to remove or dispose of his property with
a view to defraud his creditors.
 That the defendant threatens to disposes the plaintiff or otherwise causes injury to
the plaintiff in relation to any property in dispute in the suit;
The court may, by order, grant a temporary injunction to restraint such act or make such
other order, for the purpose of staying and preventing the wasting, damaging,
alienation, sale, loss in value, removal or disposition of the property as the court thinks
fit, until the disposal of the suit or until further orders.

114
. (1989) T.L.R 48.
3.0PRINCIPLES GOVERNING TEMPORARY INJUNCTIONS.

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

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

The court in granting temporary injunction must first see that there is a bonafide
contention between the parties, and on which side, in the event of success, will lay the
balance of inconvenience if the injunction does not issue. Or as stated in the judgment
of Cotton LJ in Preston v. Luck,117 to entitle a plaintiff to an interlocutory injunction,
the court should be satisfied that there is a serious question to be tried at the hearing and
that on the facts before it there is a probability that a plaintiff is entitled to relief. The
real point upon an application for a temporary injunction is not how the question ought
to be decided at the hearing of the case, but whether there is a substantial question to be
investigated and whether matters should not be preserved in status quo until that
question can be finally disposed of.
115
White CJ in the case of Subba V. Haji Badsha (1903) ILR 26 Mad 168,174.
116
.(1971) HCD n. 249.
117
(1887) 27 CD 497,506; Babu Rameshwar Prasad Singh v. Md Ayyub AIR 1950 Pat 527.
Furthermore where a perpetual injunction is sued for, and the plaintiff applies for
temporary injunction, the court should grant a temporary injunction if the effect of not
granting such an injunction will be to deprive the plaintiff forever of the right claimed
by him in the suit. The object of injunction is to preserve status quo. In issuing a
temporary injunction, the tests to be applied are:

(i) Where the plaintiff has a prima facie case;

(ii) Where the balance of convenience is in favour of the plaintiff; and
(iii) Whether the plaintiff would suffer an irreparable injury if his prayer for
temporary injunction is disallowed.

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

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

118
Dalpat Kumar V. Prahlad Singh AIR 1993 SC 276
119
Gadadhar Mishra v Biraja Devi AIR 1999 Ori 49
The plaintiff must establish that the balance of convenience in the event of withholding
the relief of temporary injunction will, in all events exceed that of the defendant in case
he is restrained. The plaintiff must also show a clear necessity for affording protection
to his alleged right which would otherwise be seriously injured or impaired. The
principle of balance of convenience implies the evenly balancing of scales.

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

Application of these principles was shown in the case of Hans Wolfgang Golcher v
General Manager of Morogoro Canvas Mill Limited122. In the case, the court accepted
the appellant submissions that the ex-parte temporary injunction was issued against
known principles governing temporary injunctions. Learned counsel submitted that an
applicant for an interim injunction must establish a prima facie case with a probability
of success and that the facts must show that if a temporary injunction is not granted, the
applicant would suffer irreparable injury which cannot be adequately compensated by
an award of damages. He cited the case of Giella v Cassman Brown H and C. Ltd
[1973] EA 358 at page 360.

120
Multichannel India Ltd v Kavitalaya Productions Pvt Ltd AIR 1999 Mad 59
121
Gadadhar Mishra v Biraja Devi AIR 1999 Ori 49
122
Supra
Under O 37, r 1 the court has the power to grant an ex parte order, however the same
should be granted only under exceptional circumstance. The factors which should
weigh for the grant of exparte injunction are:
 Whether irreparable or serious mischief will ensue to the plaintiff;
 Whether refusal of ex parte injunction would involve greater injustice than the
grant of it would involve;
 The time at which the plaintiff first had notice of the act complained of;
 Whether the plaintiff had acquiesced for sometime;
 Whether the application is made in utmost good faith; and
 In any case, an ex parte order even if granted must be for a limited period of time.

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

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

It is generally agreed that there are three conditions which must be satisfied
before such an injunction can be issued:
i) There must be a serious question to tried on the fact alleged and a
probability that the plaintiff will be entitled to the relief prayed,
ii) That the courts interference is necessary to protect the plaintiff from the
kind of injury which may be irreparable before his legal right is
established, and

123
(1969) HCD n.284.
 iii) That on the balance there will be greater hardship and mischief suffered by
the plaintiff from withholding of the injunction than will be suffered by the
defendant from the granting of it…the court must be satisfied that the
damage which the plaintiff will suffer will be such that mere man
compensation will not be adequate.

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

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

UNION124 presented the same view. The court held inter alia;

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

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

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

ESTABLISH RULES GUIDING COURT DISCRETION IN GRANTING THE
SAME.
124
(1987) TLR n. 17
It is our observation, as we have discussed earlier that granting temporary injunction is
the matter of court discretion. Having such discretions, the court however is initially
required to act judicially. Moreover, there are laid down principles which the court must
abide with when exercising the discretion. These were discussed with under part 4 of
this work.
Likewise, Ex parte orders of temporary injunctions must not be made at the whim of a
court. Rule 4 of Order 37 of the Civil Procedure Code provides for the issuance of
notice of the application to the opposite party. This was also discussed under part 2 of
this paper.

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

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

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

Injunctions and stay orders should not be granted mechanically without realising the
harm likely to be caused to the opposite party and it is not proper to burden the other

125
White CJ in the case of Subba V. Haji Badsha (1903) ILR 26 Mad 168,174.
126
Attorney General V Maalim Kadau and 16 Others
127
.(1971) HCD n. 249.
party by saying that the other party can get the stay order vacated as stated in DDA v
Skipper Construction Co. (Pvt) Ltd128.

From the foregoing discussion, we are of the opposite view from the view presented in
the question. The courts establish principles which the court has to apply while
exercising discretion on granting temporary injunction. In circumstances which the
court grant the same without regarding those rules, and where the party is dissatisfied
with the injunction order, he can make application to se aside the order. This is provided
for under rule 5 of order 37 of the civil procedure code. In India injured party has the
right to appeal against the order. A court of appeal may interfere with an order relating
to injunction where the action is arbitrary or passed without consideration of the
ingredients necessary for the grant of injunction129.

4.0CONCLUSION.

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

Qn: It is good luck and quite legal to convert the ones personal use and property
that fall into ones hands as long as the parties purporting to be the true owners of

128
. (1996) AIR SC 2005.
129
. UP Awas Evam Vikas Parishad v N.V Rajagopalam Acharya (1989) AIR 125 at pp 127-29.
the property are quarreling over the ownership of the said property. The best one
can tell the two quarreling parties is that all liars and the law has no remedy for
them.

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

OUTLINE

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

2.0 MAIN BODY

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

3.0 CONCLUSION

REFERENCE
1.0 INTRODUCTION
Where two more people have an adverse claim all to a particular identifiable sum of
money, property movable or immovable from another person who claims no interest
therein other than charges or costs such person may institute an interpleader suit against
the claimants so as to invite the court of law to determine the true owner of the said sum
or property and of obtaining indemnity for himself. That being the case the question
asked falls under Interpleader suit.

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

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

130
Concise Oxford Dictionary, 1995,p.712
131
Halsbury’s Laws of England,(4th Edn), Vol.37 p.200,para264
132
Mulla;Code of Civil Procedure,(2005) p.417
Thus for example A is in possession of car but he claims no interest in the car himself,
and is willing to hand it over to the rightful owner. The car claimed by X and Y.A may
file an interpleader suit against X and Y and the court will decide as to who is the
rightful owner of the car as between X and Y.

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

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

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

2.2Reasons for disagreement with the quotation from the question.

We do not agree with this statement on the sense that where individuals legal rights are
in dispute such as right to property always court is invited to determine such rights and
as long as they are legal rights law must have remedy toward such individuals. Also the
law governing civil litigation in Tanzania provides for the institution of a suit to deal
such cases whenever arose.
133
Cap 33R.E2002
S.63 of Civil Procedure Code provides
’’Where two or more persons claim adversely to one or another the same debt, sum of
money or other property, movable or immovable, from another person who claims no
interest therein other than for charges or costs and who is ready to pay or deliver it to
the rightful claimant, such other person may institute a suit of interpleader against all
the claimants for the purpose of obtaining a decision as to the person to whom the
payment or delivery shall be made and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of the parties can properly
be decided, no such suit of interpleader shall be instituted’’
2.3 Who may institute Interpleader suit
He who institutes interpleader suit is the one in possession of the property. Interpleader
suit is not suit of ordinary nature because a person who institutes it has no cause of
action, that no legal right violated against him, he has not claimed a remedy against
anybody. He claims no interest in the property he posses, except charges and interest of
handling such property which does not belong to him. He therefore wants the court to
determine who is rightful owner of such property. No question can arise between him
and the claimants over the ownership. Actually, he is ready to deliver such property to
the rightful owner.

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

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

When it is said that there must be no collusion between the plaintiff and any of the
defendants it means in such suit the plaintiff must be in an impartial position. If he has
in some way, identified himself with one of the parties in the sense that it will make a
difference to him one of them succeds, an interpleader suit will not lie. This is the
provision of Order XXXIII,Rule 1 (c).
As such party who has taken an indemnity from one of the claimants is not entitled to
file an interpleader suit as held in the case of Jugnath vTulka.135
In this case, A had a sum of Rs.10, 000 which sum was claimed from him both by X
and Y, advesly to each other. A thus instituted an interpleader suit against X and .It was
found at the hearing that A had entered into an agreement with X before the suit was
instituted, that if X succeeded in the suit, he would accept from A, R.s 75,00 only in full
of satisfaction of his claim. Here A had an interest in the subject matter of the suit by
virtue of his agreement with X.He was therefore not entitled to institute an interpleader
suit and accordingly his suit was dismissed.

These conditions are also reiterated in the case of Sargent vGuatama136 while
a(Revised) Rules of Kenya, which is parimateria to our s.63, and O.XXXIII of our Civil
Procedure Code. In this case it was held that in an intrpleader suit there are essentials as
134
Takwani C.K., Civil Procedure p.299
135
(1908) 32 Bom.592 as cited in Jain P.M.,The Code of Civil Procedure p.250
136
(1968) E.A338
set out under s.58 of theCivil Procedure Act are that where there are two or more
persons claiming the same debt or sum of money from another person who claims no
interest therein save for any charges or costs. The proceedings may be instituted and the
only limitation to the court’s power to grant the application are those set out in r.2 of
O.33 of the Civil Procedure (Revised) Rules 1948 of Kenya to the effect that the
applicant must satisfy the court by affidavit or otherwise that
(a) the applicant claims no interest in the subject matter in dispute other than charges
or costs
(b) there is no collusion between the plaintiff and any of the claimants
(c) the applicant is willing to do or transfer the subject matter into court or dispose of
it as the court may direct

2.5How Interpleader suit is framed and its proceedings

O.XXXIII of our Civil Procedure Code lays down the procedure for interpleader suits.
Under r. 1 of this Order it provides among other things plaint shall contain the
following;
In every suit the plaint shall in addition to other statements necessary for plaints state
(a) that the plaintiff claims no interest in the subject matter in dispute other than for
charges or costs;
(b) the claims made by the defendants severally; and
(c) that there is no collusion between the plaintiff and any of the defendants.
After institution of the suit the court may order the plaintiff to deposit the amount or
place of property in the custody of the court before he can be entitled to any order in the
suit, as provided under r 2 of O.XXXIII.
At the first hearing court declare that the plaintiff is discharged from all liability, award
him costs and dismiss him from the suit, but if court thinks that justice so require it will
retain all the parties until the final disposal of the suit; r 4 (1) (a),(b) of the same Order.
On the basis of the evidence available the court may adjudicate the title of thing
claimed. Where it is not possible, the court may direct that an issue or issues between
the parties be framed and tried, one of the claimants be made a plaintiff and the suit
shall proceed in an ordinary manner; r 4(2), (3) (a) (b)
2.6 Who may not institute an interpleader suit.
There is certain category of persons who may not institute interpleader suit. Normally,
agents or tenants shall not be permitted to file an interpleader suit against their
principles and landlords except in circumstances where the disputes among the
principles and the landlords are such which the agent or tenant cannot solve. If there be
any honest doubt to which of the persons claiming to be landlords in cases of
succession on the death of the original landlord, the tenant can file an interpleader suit.
Simirlarly, where the agents entertains a genuine doubt as to which of the successors of
the deceased principal is entitled to receive the amounts, the agent can file an
interpleader suit as provided under O.XXXIII, r 5 of CPC.137

2.7Rationale for Interpleader suit.

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

3.0 CONCLUSION

137
Also see Acharya N.K., Guide to CPC p.234
138
Groundnuts Extractions Export Development Assn.v State Bank of India (1977) 79 Bom LR 184 as cited in
Takwani C.K op.cit
With the true exposition of law we disagree with the statement that it is good luck and
quite legal to convert to ones personal use any property that falls into ones hands as
long as the parties purporting to be the true owners of the property are quarrelling over
the ownership of the said property. The best one can tell the two quarrelling parties is
that al liars and the law has no remedy for the them. We do not agree with this
statement on the sense that where individuals legal rights are in dispute such as right to
property movable or immovable always court is invited to determine such rights and as
long as they are legal rights law must have remedy toward such individuals. That being
the case the law governing civil litigation in Tanzania; The Civil Procedure Code under
s.63 read together with O.XXIII of the same Code provides for the institution of an
interpleader suit to deal such cases whenever arose.
BIBLIOGRAPHY

CONSTITUTIONS

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

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of 2002, Government Printers Dar es Salaam.

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of 2004, Government Printers Dar es Salaam.

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