Failure to frame issues in civil procedure.

 

FAILURE TO FRAME ISSUES

Failure to frame issues is a procedural irregularity which may not be fatal to the proceedings. It will be fatal to the proceedings when an appellate court forms an expression that the failure has occasioned injustices to one of the parties.

CONSEQUENCE OF FAILURE TO FRAME ISSUES

Norman V. Overseas Motor Transport [1959] EA 131. In this case the trial court failed to frame issues. On appeal the issue was whether the failure could be fatal to the proceedings. The Court stated as follows:

“The failure to frame issues is an irregularity, the question would appear to be whether notwithstanding the failure to frame issues the parties at the trail knew what the real question between them was, that the evidence on the question had been taken and the court duly considered it.”

According to the case – where the court has failed/omitted to frame issues, it is apparent that the parties knew what the dispute between them was and had an opportunity to give evidence, which has been taken into account by the court to make its decision. Such failure or omission will not be fatal to the proceedings. It is fatal only to the proceedings only when it is apparent on the face of the record that the parties did not know what the real issue was between them.

Justification 

The framing of issues like practice of pleading is intended to avoid taking of the parties by surprise, and also, intended to assist the court in understanding the case.

THE ART OF FRAMING THE ISSUES

1. The first rule of the thumb – where there are both issues of fact and law in the same suit and the determination of the issues of law may dispose of the suit then the court must frame those issues first.  There is no use calling evidence where the law is clear. The issues of law will be preliminary issues because their determination will dispose of the suit. This quickens the process of litigation.

Issues of law are a matter of Judicial Notice. Eg Limitation, wrong parties, jurisdiction, res judicata, capacity etc.

2. Framing of the issues of fact comes next.

Note that:- All issues whether of law or fact have got to be framed in the affirmative. E.g. in issues of law – whether the suit is time barred, whether the suit is not time barred. In issues of fact – whether X is Y’s legitimate son / whether X is Y’s illegitimate son.

3. Issues are not framed in argumentative way.

Issues must be concise, precise and clear questions of mostly not more than 8 words.

AFTER FRAMING THE ISSUES

Order XIV rule 6 – where the issues are between the parties and the parties submit them to the Court with an agreement in writing that they will be bound by the decision of the court on them the court will have 3 things to do:

1. To ascertain whether the agreement was duly executed by the parties.

2. To inquire as to whether the parties who have executed the agreement have substantial interest in the outcome of the case.

3. To see if the issues framed are fit for trial.

      If the court is satisfied that the three things have been complied with             then it will proceed with the trail of the issues only.

The court has got power to amend the issues at any time of the trail but it has to be before judgment.

Certain issues can be added by the court in the course of hearing.

ORDER XV

The suit is now ready for hearing.

After framing of the issues the court may however find no case to hear and the case will come to an end.

Order XV rule 1: The court is empowered to pronounce judgment at the first hearing when it is of the impression that the parties are in no dispute on the points of fact or points of law. That impression is formed by the court looking at the pleadings.

ABSENCE OF DISPUTE

Exists in two ways:

1. Where the court establishes that there is no litis contestatio (contested dispute).

2. Where there are admissions either in the pleadings or as a result of a notice to admit issued under the provisions of Order XII.

In both situations the court is empowered to pronounce judgment and this judgment is a judgment on merit since it has gone in the substance of the suit.

In a situation where there are more than two parties Order XV rule 2 will come into play. In this case the court may pronounce judgement in respect of the parties not in dispute and will allow the proceedings to go into full hearing in respect of those parties who are in dispute.

This rule applies mostly in cases where there are more than one defendant.

Where summons to appear has been issued but at the first hearing the party has without sufficient cause failed to produce the witnesses under Order XV rule 4 the Court has power to pronounce judgment against the party who has failed to bring the witnesses.

This is called A DISMISSAL FOR LACK OF PROSECUTION.

ZAID V. HUMEIDAN [1960] EA 92

In this case a distinction was made between a dismissal for lack of prosecution and a judgment under Order XV rule 4.

Technically a dismissal for lack prosecution is not the same as judgment entered upon.

In one situation what a court does is merely to dismiss the suit. This happens only against the defendant. You cannot technically dismiss the defendant. A dismissal for lack of prosecution is only to the plaintiff.

WHERE THE DEFENDANT DOES NOT APPEAR

Where the defendant does not appear and the case is coming for hearing he suffers an ex parte decree.

Where the defendant turns up but does not comply with the requirement of the summons to appear eg he does not bring the witnesses (evidence) judgment will be pronounced against him in terms of order XV rule 4.

SUMMONING AND ATTENDANCE OF WITNESSES

There are two types:-

Witnesses to give oral testimony before the court, and

Witnesses who are summoned merely for the purposes of giving/producing documents.

Generally

It is the duty of a party to civil proceedings to prove his case. In the course of hearing we are applying 2 principles of civil litigation namely:

1. The principle of party prosecution.

2. The principle of Dispositive Election.