SELECTED TOPICS OF CIVIL PROCEDURE

SELECTED TOPICS OF CIVIL PROCEDURE                       

             

COURSE CONTENT

1.                  SUITS IN PARTICULAR CASES

N, B) at the end of the course students are expected to be able to;

Draft pleadings for a wide range of persons including minors, persons of unsound mind, public officers, firms and corporate bodies;

a)                  Suits by or against public officers

            -who is a public officer?

One working for the Central Government?

Local   Authorities?

Public Institution?

-  s.60 Cap. 33 R.E.2002

- Requirement of notice-

s. 6(2) Cap.5 R.E. 2002,  90days   -Central Government

s. 183(1) Cap.287 R.E. 2002, 30     

s. 97(1) Cap. 288 R.E. 2002, 30 days        Local authorities

-who to sue

– the Attorney-General- a copy of the plaint shall be served upon the Government Ministry, Department or Officer that is alleged to have committed the civil wrong

s. 6(3) Cap. 5 R.E. 2002

-where to institute a suit

s. 6(4) (7) Cap.5,  R.E. 2002, in the HC within the area where the claim arose.

s.11 Cap.5, R.E. 2002, proceedings wrongly filed in subordinate court could be transferred to the HC

Haruna Chacha Gimonge v. Executive Director of Tarime District Council [1998] TLR 260 (HC)

-Effect of non-compliance with a law

 Suit incompetent and not maintainable

Arusha Municipal Council v. Lyamuya Construction Co Ltd [1998] TLR 13 CA

Held:
(i). Under s.63(1) of the Magistrate’s Courts Act 1984 there is no power to
allow proceedings that have commenced in a wrong forum to continue therein;

(ii) The power of the High Court under s.63(1) of the Magistrates' Courts Act
1984 to grant leave for proceedings to commence in some other court, other
than the primary court, does not include power for the High Court to grant
leave for such proceedings to commence in itself;

(iii) Non-compliance with s. 97(1) of the Local Government (Urban Authorities)
Act 1982, which requires a one month's written notice to an urban local
authority before instituting a suit against it, renders a suit unmaintainable

Bulk Oil Tanzania Ltd v. Njake Enterprises Oil Transport Ltd & 2 others [2003] TLR 81

As the main statutory suit was filed without complying with the requirement of
notice to the third respondent, an urban local government authority, the suit i:;
incompetent and the application is not sustainable.

             

b)                 Suits by aliens and Foreign States

c)                  Suits by/ against military men, corporations, firms, minors and persons of unsound mind

(i) Suits against military men [O. XXVII,  Cap. 33 R.E 2002]

                

                 -procedure

-r. 1(1) Cap XXVII, Cap. 33 R.E 2002, where one cannot obtain leave of absence, may authorize any person to sue or defend;

-How is authorization required to be given in law? By way of a power of attorney?

- contrast

O. 3 r. 2 CPC and

The General Manager, Pamba Engineering Ltd v. The Managing Director & Proprietor of Nyanza Sterilization & General Service, (HC) Civil Appeal No. 51/1995, HC of Tanzania Mwanza Registry (unreported), Lugakingira, J.-

 “Extreme age, prolonged illness, absence from the court’s jurisdiction’’.

(ii) suits by/or against corporations/companies

-law applicable

O. XXVIII CPC

Public Corporations Act, Cap.

Companies Act, No. 12/2002

-What is a company?

Salomoni v. A. Salomon & Co Ltd [1897] AC 22

-procedure by a company in instituting a suit

Board resolution (required)

Bugerere Coffee Growers Ltd v. Sebaduka & another [1970] E.A. 147 (UG)

E.R. Investment Ltd v. The Tanzania Development Finance Co Ltd and Leonard Msusa, Civil Case No.66/1999, HC of Tanzania at DSM (unreported), Kimaro,J.

St. Bernad’s Hospital Company Ltd v. Dr. Linus Maemba Mlula Chuwa, Commercial Case No. 57/2004, HC of Tanzania at Commercial Division DSM (unreported). Kalegeya,J.

Tanzania Cigarette Company Ltd v. Burundi Tobacco Company Ltd and Mastermind Tobacco (Tanzania) Ltd, Misc. Civil Cause No. 7/2004, HC of Tanzania Commercial Division at DSM (unreported), Kimaro, J.

(the judge Kimario in this case ruled that it is not mandatory).

-who is to sign pleadings?

principal officers of the company, who are:

i.                    Directors- s. 181, the Companies Act, No. 12/2002

ii.                  Company secretary- s. 187, the Companies Act, No. 12/2002.

(iii) firms/partnerships

-Meaning of the term firm:  Individuals trading together with a view of earning profit.

s. 190, of the Law of Contract Act, Cap. 345 R.E. 2002.

Size of the firm

s. 464, the Companies Act No. 12/2002- except firms for lawyers, accountants, and persons carrying on stock exchange business, no firm is allowed to operate with members who are beyond 20.

-Law applicable

O. XXIX of Cap 33 R.E. 2002

-procedure

A firm may be sued in its own name

r.10, O. XXIX, Cap 33 R.E. 2002

Juma Garage v. CRDB [2003] T.L.R. 429 (CA)

A firm cannot sue in its own name

Timber Furniture Agency v. Dodoma District Council, Civil Case No. 13/1989, HC of Tanzania Dodoma Registry (unreported). Mwalusanya, J.

Fort Hall Bakery Supply Co v. Wangoe (Fredrick Muigai) [1959) EA 474

A firm should sue in the name(s) of its members

Rambhai & Co (Uganda) Ltd v. Lalji Rtna [1970] EA 106 (U)

How should the wording in the pleadings appear?

Peter s/o John t/a Rombo Brothers & Co v. CRDB Ltd

(iv) Suits by or against minors and persons of unsound mind

Who is a minor?

s. 2 of the Age of majority Act, Cap. 43 R.E. 2002 –one who has attained 18yrs

-law applicable

O. XXXI Cap. 33 R.E. 2002

r. 1 of O. XXXI Cap. 33 provide that ‘every suit by a minor shall be instituted in his name by a person who is known as ‘the next friend of the minor’.

R.3 (1) O. XXXI Cap. 33, a minor can be sued in her/his name but the court can appoint a ‘guardian’ for the suit.

-presentation in pleadings

Jaffar Mohamed salehe v. E.Munisi, (DC) Civil Appeal No. 1 of 1994, HCT at Mbeya (unreported) Mwipopo, J.

 John Magendo v. N.E. Govani (1973) LRT n. 60 Biron,J.

e.g

       Cosmas John, an infant, by John Magendo, his next friend.................Plaintiff

v.

      N.E. Govani..........................................................................Defendant

Theodoclina Alphaxad a minor s/t next friend v. The Medical Officer I/C, Nkinga Hospital [1992] T.L.R. 235 (HC)

v) Summary procedure [O. XXXV Cap 33 R.E. 2002]

- Meaning

- Not defined under the Civil Procedure Code.

- According to Black’s Law Dictionary (7thEd), p. 1222- is a method/proceeding that settles controversy/disposes of a case in a relatively prompt and simple manner.

-Procedure of instituting summary suits

Inscription should be inserted immediately below the number of the suit in the title of the suit: ‘UNDER O. 35 OF THE CODE OF CIVIL PROCEDURE, CAP. 33 R.E.2002’ See Mulla p. 185.

To which matters does O. XXXV CPC apply?

r. 1 (a) –(f) O. XXXV Cap 33 RE 2002

  - Suits upon bills of exchange e.g.  Cheques; Promissory Note

  - Suits for the recovery of income tax;

  -Suits arising out of mortgages, whether legal or equitable, for-

  -payment of monies secured by mortgage;

-sale;

-delivery of possession of the mortgaged property

-redemption; or

- Recovery of rent due to the Government, Local Authorities,

-Suits by the Tanzania Electric Supply Company Limited for the recovery of meter rents, charges for the supply of electricity and charges

- Suits for the recovery of rent, interest or other debts due to the Republic, the Government or any local government authority;

N.B. Suits not falling within this category cannot be instituted under the Summary Procedure Order. See- Uganda Transport Co. Ltd v. Count De La Pasture (1954) 21 EACA 163.

-What the defendant could do-[O.XXXV R. 2(2) & 3 CPC]

-obtains leave from the judge or magistrate to defend the suit by way of chambers summons supported by an affidavit. Defendants have no automatic rights to appear

NBC Ltd v. Stephen Sanga & 2 Others, Civil Case No. 90 of 2001, HC Commercial Division (unreported) Kalegeya,J.

NBC Ltd v. Kijenge Animal Products Limited & 3 others, Commercial case No. 121/ 2001, HC Commercial Division, at DSM Registry(unreported)., Nsekela,J.

National Bureau De Change Ltd  v. Tai Miching pp. 86-89 bindery 2

-the court shall, upon application by the defendant, give leave to appear and to defend suit, upon affidavits which disclose such facts as would make it incumbent on the holder to prove consideration; disclose such facts as the court may deem sufficient to support the application.

The Board of  Trustees of  Agricultural Inputs Trust Fund v. 1. Dr. Victoria Kisyombe 2. Sefarm’s Company Ltd, Civil Case No. 88 of 2001, HCT at DSM (unreported). Ihema, J.

Failure to seek leave to defend-

NBC Ltd v. Majestic Theatres Co Ltd, Commercial Case No. 22/2003, HCT Commercial Division, at Dar es salaam, Vol 2 (Commercial Court –Manual Reports) pp. 84-85, default judgment could be granted.

Default judgment

This is the judgment without trial where a defendant

i.                    has failed to file the acknowledgment of service

ii.                  has failed to file his defence

Conditions to be satisfied to grant the default judgment by the claimant

i.                    the defendant has not filed the acknowledgment of service  or defence to the claim or any part of the claim

ii.                  the relevant time to do the supra condition must have expired

iii.                the service by the claimant must have been served but the defendant must have not filed his defence

iv.                 in a counter claim that the defence was not been filed

v.                   

-Tests/Triable issues

- Existence of triable or arguable issues to be determined by the court;

See Zola & another v. Ralli Brothers Limited [1969] EA 691;

David Sasson & Co Ltd v. Navichandra Patel & others (1972) HCD n. 148;

Gulamhussein Fazal v. Muzafar (1976) LRT no. 35;

Mugambi v. Gatururu [1967] EA 196

-Setting aside decree [O. 35 r. 4 CPC]

-Constitutionality of Order 35

The Provisions of this order prescribing a special procedure for trial of certain classes of suits, and by certain courts, are not repugnant to art 13 of the Constitution of the United Republic of Tanzania (equality before the law), as they are based on reasonable classification. The provisions of this order are purely procedural and cannot deprive a person of his rights under the substantive law.

-Limitation Period

Application for leave to appear and defend a suit under the summary procedure under Order XXXV of the Civil Procedure Code is 21 days  –See para 1 Part III to the Schedule of the Law of Limitation Act, Cap. 89 R.E. 2002.