Civil procedure-2 - Lecture notes 1 PDF

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CIVIL PROCEDURE

Readings I. Text Books 1. D.F. Mulla, Code of Civil Procedure 1908: in 2 volumes. A practitioner’s book to be used carefully because some of the principles do not apply in Tanzania. 2. Rao and Chitaley Code of Civil Procedure: in 3 volumes

3. Bullen and Leaks Precedents on Pleadings edited by I.H. Jacob Suitable for practice – drafting. 4. I.H. Jacob Chitty’s Queens Bench Forms. It gives method of drafting and interrogating. It covers many things except Plaints.

5. Lord EVERSHED Atkins Court Forms 33Volumes very relevant to students. 6. Odgers On Pleadings

7. Shaukut Mahmood The Code of Civil Procedure 1908 8. Flemming Civil Procedure – America book.

9. Spry Civil Procedure in East Africa

II. Statutes 1

CIVIL PROCEDURE Civil Procedure Is a procedure of litigation before the Courts in civil matters. It does not give any litigant a right but it enacts a procedure through which a right can be obtained. It is a Procedural law unlike Substantive law which gives a right to a litigant.

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

The Civil Procedure Code of Tanzania is divided into two parts: 1. The Main Act 2. The Schedules In Tanzania the Schedules are regarded as part of the Act – which is a departure from the general rule of interpretation that, neither schedules nor preambles are part of the Act. Construction of the Civil Procedure Code Since Civil Procedure is adjectival law and a way of facilitating administration of justice or rather the way through which a right is obtained, the provisions of Civil Procedure Code should be given the literal meaning.

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All rules of procedure must be geared at speedy ending of litigations and at a lower cost. Procedure is a servant – which should facilitate and not hinder the administration of justice. IRON AND STEEL WARES V C.W.MARTY & CO. (1956) 23 3ACA 175, 177. Procedural statutes must be interpreted liberally. This position is illustrated in KENDAL V HAMILTON (1878)4 AC 504 at page 525: “Procedure is but a machinery of the law after all, the channel and means whereby is administered and justice reached. It strangely departs from its proper office when in place of facilitating it is permitted to obstruct and even extinguish legal rights and thus made to govern where it ought to subserve.” Procedural Statutes should not be construed in such a technical way that will make the court fall to do substantial justice between the parties. Preliminaries to Litigation In any litigation of a civil nature there must be two things co-existing: 1. Parties 2. A dispute NB: Not all disputes go to court but only those which are contested. The claimant must present a demand note upon the prospective defendant – in East Africa it is called a Letter of Demand. A LETTER OF DEMAND: Is a letter presented to the prospective defendant by the prospective plaintiff laying down the claims by the prospective plaintiff against the prospective defendant and demanding a remedy at the threat of being sued. There is no a prescribed form of a letter of demand provided it provides the necessary information. Three things in a Letter of Demand: 1. Concise statement of claim - which should contain particulars sufficient for the prospective defendant to know what is required by him.

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2. That letter should contain a clear and unambiguous demand that the claim should remain good. 3. The letter should prescribe a limitation period normally 14 days within which the claim should be met or else legal proceedings may be instituted without any further notice. This is what has made the letter be referred to as a notice with an intention to sue. NB. The Civil Procedure Code does not provide for a letter of demand. It is provided for in the Advocates’ Remunerations and Taxation of Costs Rules GN 193 of 1924 under Rule 61 it is provided as follows: “If the Plaintiff in any action has not given the defendant notice of his intention to sue, and the defendant pays the amount claimed or found to be due, at or before the first hearing no advocate’s fee will be allowed except on the special orders of the judge." JURISDICTION Section 13 of the Civil Procedure Code provides that – every suit should be instituted in the Court of the lowest grade competent to try it. What is Jurisdiction? Is the power to hear and determine matters which are litigated before a tribunal. Jurisdiction is a question of law – a creature of statute e.g. in Tanzania the High Court is established by the Constitution and the subordinate courts are established by the Magistrates Court Act, No. 2 of 1984. Jurisdiction is determined before the beginning of the proceedings. Refer the case of Anisminic Case – which is just persuasive for Tanzania. TYPES OF JURISDICTION 1. Territorial Jurisdiction

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Every court has a limited area is i.e. geographical area – in which it operates. This is provided by statute establishing that court and in some cases by the subsidiary legislation. In Tanzania there is only one court having jurisdiction over the whole country, this is the High Court of Tanzania. There are two High Courts in the United Republic of Tanzania. These are – the High Court of the United Republic of Tanzania and the High Court of Zanzibar. The two High Courts have concurrent jurisdiction. Note: The High Court of the United Republic has no jurisdiction over matters of Zanzibar but over matters arising from the mainland, except over matters relating to election. The High Court of Zanzibar has no jurisdiction over election petitions arising from the Mainland but for matters of petition arising from the House of Representatives. The High Court of the United Republic of Tanzania has several registries. However the High Court has no territorial limit. The High Court Registries Rules give guidance on the procedure of filing a case in registry in which the case arises, or the area where the parties reside. There is an exception to this rule depending on the circumstances of the case therefore, a case can be filed in any registry but it will be transferred to its proper registry. District Court Territorial jurisdiction of a District Court is the boundaries for which the district is established. Refer the Magistrates’ Courts Act, 1984. Note: That there are two types of District Magistrates. Those designated as Civil Magistrates - who are entitled to hear civil cases. And those not designated to hear civil cases. Resident Magistrate’s Courts 5

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

2. Exclusive Jurisdiction This is jurisdiction vested in a particular court in exclusion of any other court. This jurisdiction is normally vested in that court by a statute e.g. Workmen’s Compensation Ordinance which vests exclusive original jurisdiction over matters relating to the Ordinance to the District Court; and the Rent Restriction Act(REPEALED & LAND ACT CAP 113 IS IN EXISTANCE) which grants exclusive original jurisdiction over matters relating to landlord and tenant to the Housing Tribunal. 3. Concurrent Jurisdiction Courts are said to exercise concurrent jurisdiction when they can exercise original jurisdiction over the same matter. 4. Pecuniary Jurisdiction 6

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

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

Authorities 1. Francis Mwijage v Boniface Kabalemeza (1968) HCD n. 341 7

2. Sheikh Kassim Suleman v Ayubu Kamgila (1968) HCD n. 79 3. Walumu Jilala v John Mongo (1968) HCD n. 81 4. Edward Kalemela v Muyebe Rwenjege (1968) HCD n. 80

2. RES JUDICATA Is a Common Law doctrine included in the Civil Procedure Code. It has two elements Res meaning matter and judicata meaning already adjudicated. Res judicata – bars subsequent litigations involving matters substantially and directly the same between the same parties or parties claiming on the same thing. -Res Judicata applies only to civil litigations. The doctrine of Res judicata is based on two well known maxims of Common law. 1. interest reipubicae est ut sit finis litium i.e. it is in the public interest that there be an end to litigation. 2. nemo debet bis vexari pro aedem causa i.e. no one should be in jeopardy twice on the same ground. Elements of Res Judicata Refer Section 9 of the CPC 1. There must exist two suits – one finally and conclusively determined and another pending. 2. These suits must be before courts of competent jurisdiction. 3. These suits must have been between same parties – or parties claiming under the same title. 4. The matters that are directly and substantially in issue between the parties in the pending suit must have also been directly and substantially in issue in the previously decided suit. Effect of the doctrine A person cannot raise an allegation which has previously been decided against him by a court of competent jurisdiction. A Judgement may be assailed by an appeal where a right of appeal 8

exists, or by applying to have the judgment set aside where it was obtained fraudulently or collusively. See: R.V. Hatchings (1881), 6 QB 300. 3. PARTIES TO SUIT In every civil litigation there has to be a minimum of two parties opposing each other in respect of a dispute. In other words there has to be a lis inter parte with litis contestatio The two parties to a suit are PLAINTIFF and DEFENDANT. Plaintiff is the party who has a right to relief against the other party (defendant). The right of relief should not be a moral right but a legal right. In simple civil suit there is a single plaintiff and a single defendant while in a complex suit there are various parties. Parties to a Civil Suit 1. Proper Party Is that party without whom no effective decree can be issued? His presence is necessary because the court must either give a relief or a decree against him. Proper parties are parties who must be before the court. 2. Necessary Party Is the one whose presence in court is desirable but whose absence does not render the decree ineffective Eg. In nuisance suit over a flow of sewage – a decree against the tenant can be affected through the landlord. The tenant is therefore a proper party because he will bring the landlord - he is therefore not a necessary party but a proper party and the landlord the necessary party. The person who will be compelled to do what is sought is the necessary party.

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JOINDER OF PARTIES General Principle: The CPC does not compel a party to combine the parties in pursuance of their rights nor does it prohibit joinder of the parties.

Joinder of Plaintiffs Order 1 rule 1 CPC provides – More than one plaintiff can sue against one or more defendants if the right to relief claimed by them arises out of the same act or transaction or a series of acts or transactions and if separate suits were brought, common questions of law or fact may arise. Refer: Yowana Kahere V. Lunjo Estates Ltd [1959] EA 319 Kanani V. Desai Uganda High Court Civil Case No. 469/1953 Points to Consider In Joinder of Plaintiffs These are just practical and not legal considerations 1. Parties (co-plaintiffs) must have common interests. Where it is likely to differ in interests it is advisable that each plaintiff should sue separately. 2. Co-plaintiffs should be represented by the same advocate to avoid prejudice to parties. 3. Joinder of plaintiffs shortens the conclusion of the case. 4. It is less expensive to sue jointly than separately in terms of mobilizing the parties and witnesses. 5. Suing jointly does not require presentation of third party notice against some of the plaintiffs. 6. Where the defendant is successful against some of the plaintiffs, there is a real likelihood that the successful plaintiff will be found to be jointly liable to the defendant. Cause of action Means all the facts which have to be proved by plaintiff in order to be entitled to a relief or the facts which are going to be proved in the court in order to obtain relief. 10

Joinder of Plaintiffs The test is whether the plaintiffs are jointly interested in the same subject matter. See: BOLTON V SALIM KAMBI [1958] EA 360 The Plaintiff sued under Cap. 360 for damages on his own behalf as the dependant of his deceased son and at the same time he sued as the administrator of the estate of his deceased son. The issue was whether there was a proper joinder of plaintiffs. It was held that there was nothing wrong for a person to sue in a dual capacity. Joinder of Defendants Rule 3 of Order 1 It is not necessary that every defendant should be interested as to all the reliefs claimed in any suit against him. The rule does not require that all questions of law or fact must be common to all the parties. It is sufficient that there is a common question either of law or of fact.

ILLUSTRATIONS 1. A brought a suit against B, C, D and E for recovery of certain documents of title and the goods in suit were his property; that defendant B obtained from him the documents of title relating thereto by fraud and made them over to defendant C; that defendant C wrongfully dealt with them and sold the goods to defendants D and E; that D and E claimed to retain the goods and documents of title. Held: The right to relief against each of the defendants is based upon the same act, namely, the alleged fraud of B, and this is so notwithstanding the fact that there may have been subsequent acts or transactions in which the different defendants are individually concerned and which may enable them to raise distinct defences. If different suits were instituted, at least one common question of fact would arise, namely the exact nature of the act imputed to B, which would have to be investigated, presumably on the same evidence separately adduced in several suits. 11

2. A holder of 100 shares in a company, brought an action against the company, its several directors and promoters and executors of a deceased director and promoter, as against the company’s cancellation of the allotment to him of his shares and return of his money by paid him with interest, damages as against the defendants other than the company and rectification of the company’s register of members by the removal of his name therefrom. He alleged that he had applied for the shares upon the faith of, and induced by the misrepresentations contained in the prospectus issued by and with the authority of the defendants (other than the company and executors) and of the deceased.

Held: In substance, the shareholder has one grievance, call it a cause of action or what you like, and in substance he has one complaint, and all the persons he sues, have according to him, been guilty of conduct which gives him a right to relief in respect of one thing which they have done, namely issuing of the prospectus. See also the case of Thomas V. Moore (1918) IKB 555 per Lawrence, J. ‘that the court has discretion as to allowing the joinder of the defendants and that as there was a common question of fact to be tried………….the court would in exercise of that discretion allow the two defendants to be joined in one action. As a General Rule: where claims by or against different parties involve or may involve a common question of fact being against different parties of sufficient importance in proportion to the rest of action to render it desirable that the whole of the matters should be disposed of at the same time, then it will allow the joinder of plaintiffs or defendants subject to its discretion as to how the action should be brought. It should be noted that joinder of the parties and causes of action is discretionary in the sense that if they are joined there is no absolute right to have them struck out but it is discretionary in the court to do so.’

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The plaintiff can at his option join as parties all or any of the persons jointly or severally liable on any contract including parties to bills of exchange, hundies and promissory notes. See: Order I Rule 6 CPC. If the Plaintiff is in doubt as to the person from whom he is to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent may be determined as between all parties. See: Order I Rule 7 CPC.

Under Which Circumstances Can You Join the Defendants? 1. In joining defendants one has to look at the connection between the defendant and the cause of action. See: Order I Rule 3 CPC 2. Rights to relief must arise out of the same act or transaction 3. If separate suits are brought against the defendants there would be common question(s) of law. Authorities i)

PETER COMPANY LIMITED V. MANGALJI & OTHERS [1964] EA80.81

ii)

THE BANK OF INDIA V. AMBAL SHAH & OTHERS [1965] EA 18

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

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REPRESENTATIVE SUITS (GROUP ACTIONS) - Order I Rule 8 CPC Where several plaintiffs claim a right to relief against one defendant or several defendants jointly and such persons have the same interest in the subject matter of the suit then a member of them may sue on behalf of all. They are actions normally filed against a public or a particular social group, trade union, local authority or in declaratory actions against the Government. The persons suing are known as Representatives. Before they file the suit they must first obtain a representation order by filing an Application (chamber summons) and Notice must be given in Mass Newspaper to invite objections. I...