2. HEARING OF SUITS
N, B) at the end of the course students are expected to be able to;
b) Handle hearing of civil cases in courts of law and record proceedings;
[1975] LRT n. 17
Fredrick Selenge v. Agness Masele [1983] T.L.R. 99
The suit called on for hearing has reference to hearing of suit and not mere preliminary hearing
- Who has a right to begin?
r. 1 O. XVIII, Cap. 33 R.E. 2002 – it is the plaintiff.
r. 2(2) O. XVIII, Cap. 33 R.E. 2002, -the defendant follows immediately after the
plaintiff.
plaintiff.
-Taking evidence- narrative form-
r. 5 O. XVIII, Cap. 33 R.E. 2002
The evidence of each witness shall be taken down in writing, in
the language of the court, by or in the presence and under the personal
direction and superintendence of the judge or magistrate, not ordinarily in
the form of question and answer, but in that of a narrative and the judge or
magistrate shall sign the same. Questions objected to and allowed by court
the language of the court, by or in the presence and under the personal
direction and superintendence of the judge or magistrate, not ordinarily in
the form of question and answer, but in that of a narrative and the judge or
magistrate shall sign the same. Questions objected to and allowed by court
-Exception to the general rule (r.5 above)
r. 6, O. XVIII, Cap. 33 R.E. 2002 –question and answer could be recorded.
Where any question put to a witness is objected to by a party or
his advocate, and the court allows the same to be put, the judge or
magistrate shall take down the question, the answer, the objection and the
name of the person making it, together with the decision of the court
thereon.
his advocate, and the court allows the same to be put, the judge or
magistrate shall take down the question, the answer, the objection and the
name of the person making it, together with the decision of the court
thereon.
NBC Ltd v. B & E Investment Limited & Dorein Francis Kanemile, Commercial Case No. 14/2002, HCT Commercial Division, at DSM Registry (unreported)
Read Appendix iii to the Book: Binamungu and Ngwilimi (2006) Regulation of Banking Business in Tanzania, Mzumbe Book Project, Mzumbe.
-Common symbols used in recording proceedings
XX;
XXD;
RXD;
ROFC
-Recalling witnesses
r. 12, O. XVIII, Cap 33 R.E. 2002
-Adjournments
O. IX CPC, Cap. 33 R.E. 2002
-Appearance and consequences of non- appearance--- O. IX Cap. 33 R.E. 2002
If the plaintiff appeared but the defendant with no justified cause fail to appear the court can proceed exparte
If the plaintiff fail to appear but the defendant appeared the court may dismiss the suit unless the defendant admit wholly or partly of the plaintiff claim of which the court proceed to enter judgement for the part agreed and dismiss the rest
Apply to set aside dismissal order- don’t appeal against it (dismissal order).
Said Abdallah Kinyanyite v. Fatuma Hassan & Jibrea Auction Mart, Civil Appeal No. 87/2003, HCT DSM Registry (unreported), Shangwa, J.
-Effect of dismissal of a suit and possible remedies
-No case to answer
Mwalimu John Paul Muhozya v. AG [1996] T.L.R. 229
DAIKIN AIR CONDITIONING (E.A.) LTD v HARVARD UNIVERSITY 1996 TLR 1 (HC) Judge Samatta J
THEOBALD MAZOBA t/a BAOBAB BEACH BUNGALOW commercial case No 67 of 2008 Dar es Salaam (HC) Per Mruma J
A submission of no case to answer is rarely preferred in civil suits as the court has discretion after refusing a no case to answer plea to proceed to consider the suit on the strength of the evidence adduced by the plaintiff only. This is so because the court may be of the view that by making a plea of no case to answer, on the evidence adduced by the plaintiff the defendant feels that he has nothing to offer in defence.
Condition for the grant of submission of No case to Answer in civil cases to warrant this court to call upon the defendant to give its defence
-THEOBALD MAZOBA t/a BAOBAB BEACH BUNGALOW commercial case No 67 of 2008 Dar es Salaam (HC) Per Mruma J The arguments are pegged on the following grounds:-
(i) That there is no cause of action against the defendant ie the plaintiff is not privy to the contract, or does not have power of attorney neither a registered owner nor a shareholder or a person claiming under the said Baobab Beach Bungalow, therefore he has no right to sue.
(ii) That the plaintiff is not a proper party to this suit and
(iii) That the evidence adduced by the plaintiff has not established a prima facie case against the defendant.
Refer
Mwalimu Paul John Muhozya versus Attorney General (No.2U1996] TLR 229,
National Bank of Commerce Ltd versus Ubungo Petrol Station Ltd and another, Commercial Case no. 141 of 2001(unreported),
John Byombalilwa versus Agency Maritime International CD Ltd (1983) TLR,
Kayanja versus New India Assurance Co. Ltd (1968 Twiddle Versus Atkson
Eminent authors including Mulla on Civil Procedure Code)
Ex-parte judgements
Meaning
Ex-parte judgements, this is the judgement reached in absence of the defendant
Ground for the grant of Ex-parte Judgement/Reason/Justification
-No filing of WSD and non-appearance by the defendant.
Moshi Textile Mills v. B.J. De Voest [1975] LRT no. 17, Makame, J.
Mbeya Cement Co Ltd & Director Mbeya Cement Co Ltd v. Omari haji Mwambe & Ramadhani Kasimu, Civil Appeal No. 181/2007, HCT at DSM (unreported), Mihayo, J.
Setting aside ex-parte judgement- where to file and what to consider?
i. -uncertainty of service of summons is sufficient reason as per
T.M. Sanga v. Sadrudin, G. Alibhai & Two others [1977] LRT n. 51
ii. Sickness of the defendant or serious issues out of his natural control ie death of defendant issues or close relative
iii. Attendance in the higher court in a different matter
iv.
Whether Negligence is the good ground to set aside the exparte Judgment
1st Adili Bancorp Ltd v. Mrs Dorah B. Mwenda & Dunhil Motors Ltd, Civil case No. 394 of 2000, HCT at DSM (unreported) Mihayo, J.
- improper recording of date for the court sessions leading to non attendance is pure negligence- not good ground for setting aside a dismissal order; delay to file an application unjustified.
Where to file the application to set aside the ex-parte judgement
Soza Plastic Industries v. Scolastica Chawala & 185 Others, Revision No 73/2012, HCT Labour Division, DSM Registry (unreported)- Rweyemamu,J.
to set aside exp-judgment file the matter in the court where the judgment was entered.
Whether revision can be preferred before setting aside ex –parte Judgment
Omary Abdallah Kaguna v. John Albino Baruti & others, PC Civil Appeal No. 14/2003, HCT at DSM (unreported)- Mwarija, J. Judgment 2007-
An ex –parted judgment must be set aside first before revision is preferred.
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