Pleadings in Tanzania.

PLEADINGS

What is Pleading?

It is a legal term which connotes the presentation of ones claim (case) before the court.

Generally, pleadings comprise of two things;

1. The documents which are presented before the court in preparation of the suit. These documents lay bare the material facts of the case.

2. The process of preparing the documents.

Order VI Rule 1 defines pleadings as the plaint, the written statement of defence and the reply to the written statement of defence and any other document produced to court for the purpose of preparing the suit.

The definition is not exhaustive. Pleadings also include the process of preparing the documents which lays bare the facts of the case and it includes the documents themselves. In other words pleading is an art of preparing the documents and on the other hand it is the product of this art.

Functions of Pleadings

Pleadings serve three purposes:

i) Pleadings inform the court about the nature of the parties’ case by identifying the area of controversy between the parties.

ii) Pleadings serve the purposes of bringing the parties to the issue. i.e. they establish litis contestation

iii) Pleadings put the dispute on record. They define the area upon which the decision of the court is sought and they put those areas in court. Once there is decision the matter becomes res judicata.

NB:  Every party in civil litigation is entitled to know the nature of the case against him.

Thorp V. Holdworth (1876) 3 Ch. D. 637,639 (Leading Case)

“The whole object of pleading is to bring the parties to an issue and the whole meaning of the rules was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues and thereby to diminish expense as delayed especially as regards the amount of testimony required at the hearing.”

See also Palmer V. Gudagni [1906] 2Ch. 494,497

Esso Petroleum Co. Ltd V. Southport Corpn. [1939/59] AC 218,238

“The function of pleading is to give fair notice of the case which has to be met so that the opposing party may direct evidence to the issues disclosed by them.” 

 Joseph Marco V. Pascal Rweyemamu (1977) LRT 59

Zalkha Binti Moh’d Juma Mazige [1970] HCD 132

N.J. Amin Ltd. V.B. Patel Co. Ltd. [1969] HCD 17

Note: 1. Only matters which are in dispute between the parties should be the subject of decision by the court.

2. The purpose of pleadings is not to set out the whole case. Pleadings are not evidence. They comprise only of the allegations to be supported by evidence.

3. Pleadings relate to material facts only and not the law. Material facts are those which constitute the cause of action. They constitute a right and the infringement of that right and the consequence of the infringement of that right.

4. As a general rule you do not plead particulars. There are certain exceptions to this rule e.g. in Negligence [which is a very wide tort], in fraudulent cases – you must specify the nature of the fraudulent behaviour, Misrepresentation, Undue influence, Breach of Trust, Willful default. In all these actions the party pleading them must give the particulars.  

Refer Order VI CPC and the case of Northwestern Salt Co. Ltd.

Certainty & Particularity in Pleading

The question of certainty was brought up in the case of  William V. Wilcox 112 ER 857,863. The case gives tactics to be used in pleading.

The CJ said:

“The certainty or particularity of pleading is directed not to the disclosure of the case of a party but to informing the court, the jury and the opponent of the specific proposition for which it contains and a scarcely important objects that bringing the parties to issue on a single and certain point avoiding prolixity and uncertainty which would very probably arise from stating all the steps which lead up to that point.”

According to the case there are two categories of facts

1. The material facts 2. The subordinate facts

Material facts:

They are those facts which lay out the cause of action.

Subordinate facts:

They are those facts which may properly be called evidence.

In the process of pleading you are required to plead the material facts and not the subordinate facts.

See: Gautret V. Egerton 1867 LR 2CP 371, 374

Lumb V. Bealimont 49 LR 772

Millington V. Lorring 43 LT 657

The Nature of Pleading Certain Facts

Under Rule 6 - where a condition precedent is alleged, the facts disclosing such condition have got to be specifically pleaded.

Under Rule 8 - where a contract is illegal, a bare denial will relate to existence of the illegality. 

Under Rule 10 - where a state of mind is pleaded it is enough to allege that state of mind, e.g. malice or knowledge.

Rule 13 - you do not plead law because law is a matter of judicial notice.

Subsequent pleading cannot raise new grounds.

A pleading which is not signed is a defective pleading as it is required by the Rule 14 to be signed by the party himself or his advocate or where the party is absent from the jurisdiction of the court or where he is unable to sign, by a duly authorized person.

The requirement of signatures is a requirement of law; however the absence of signature is not fatal to the proceedings. Therefore, where a pleading is not signed, the defect may be curable by allowing the party to sign.

Where a party applies to have a signature on his pleading, the court will freely grant that application.

Rule 15 - demands that all pleadings have to be verified.

What is verification?

It is a statement by a pleader showing that he has full knowledge of what is pleaded and indicates his bona fide of what he has pleaded.

Verification is a mandatory requirement.

Under Rule 15(2) - the party verifying must verify to the different paragraphs separately and show which are verified according to his knowledge, belief and information. 

E.g.

VERIFICATION

I. XY, being the plaintiff in the above named suit do hereby state that all that is stated in paras 1 to 5 above is there to in the best of my own knowledge, what is stated in paras 6 and 7 is there to the best of my belief and what is stated in para 8 is there to the information supplied to me by the Dean of Students. 

DATED at Dar es Salaam this……….day of November, 1988.……………………………….

PLAINTIFF

A plaint which is not signed/ verified is ineffective and therefore the Officer of the court may reject it.

The object of verification is to fix responsibility on the party pleading and to prevent false pleadings being recklessly filed or false allegations recklessly made.

STRICKING OUT OF PLEADINGS

Order VI Rule 16 empowers a court at any of the proceeding to strike out or amend any matter in the pleadings which according to it are offensive.

Situations in which striking out of pleadings may be ordered:-

I. Where the pleadings or certain parts of the pleadings are unnecessary i.e. for being prolix.

II. When the court is of the opinion that such pleadings do embarrass the opponent eg. where the pleadings are so ambiguous that your opponent will be unable to understand them.

III. Where the court is of the impression that the pleadings tend to prejudice that opposite party.

IV. Where the court is of the opinion that the pleadings will tend to delay a fair trial.

NB. The provision of Order VI Rule 3 must be read together with the provisions of Order VI Rule 16 and the case of N.J. Amin V. B. Patel & Co. Ltd     [1969]  HCD 17.

In the case of Knowles V. Roberts 1883 38 Ch. D 263 it was observed that courts should not dictate to the parties how they should frame their case. However, this is subject to the limitation that the parties must not offend against the rules which have been laid down by the law.

“ Where a party to civil proceedings alleges a scandalous matter it will be struck out only when it is irrelevant, however , not every indecent or offensive is not material is to be considered as scandalous….”

If the scandalous matter is relevant it will not be struck out.

AMENDMENT OF PLEADINGS

As a general principle courts have discretion to order amendment of the pleadings at any stage. Order VI Rule 17 can be employed at any stage before judgment but it is advisable to effect them earlier because it may be detrimental to parties.

See the case of Motohov V. Auto Garage Ltd [1971] HCD 81 per Biron J,

“The making of amendments is not merely a matter of the power of court but it is a duty so that substantive justice will be made.”

Although Order VI Rule 17 is a permissive provision the High Court has interpreted the conditions as mandatory.

In Tanzania amendments are the duty of the court.

The party seeking amendment is the one to pay the costs of amendment.

Endevain V. Cohen (1889)43 Ch. D. 187

Clarapede V. Commercial Union Association (1883) 32 WR 262.

When an inconvenience is suffered by a party can be assessed in monetary terms and therefore attorned by the court for the interest of determining it the court will allow amendment. 

Although amendment will freely be granted an advocate will suffer the costs.       A professional lawyer should not make an application to amend pleadings.

Principle: The court will allow amendment when the inconvenience caused can be assessed in monetary terms to compensate the opposite party.

Shivji V. Pallegrino

The amendments are ordered only for the purposes of making the existing pleadings clear. They are made to elaborate the cause of action pleaded. Amendment will not be awarded where the effect of granting it will be to introduce a new course of action. Also an effect of amendment is not to substitute the cause of action for a new cause of action

Therefore, Order VI rule 16 cannot be used where through negligence a party has failed to join causes of action where he could have done so in the beginning.

When an order for amendment is granted the party who has been allowed to amend must do so within 14 days. If he cannot do so he cannot amend his pleadings unless he is allowed an extension of time by the court.

PLAINT

Order VII CPC.

A plaint is a court document, it should contain a title. What comprises of the title of a plaint? Refer: Rule 1 (a) (b) & (c).The name of the court, the number of the case and the names of the parties.

In the body of the plaint the first paragraph should contain the description of the plaintiff. Where there is more than one plaintiff, each plaintiff will be described in his own paragraph. The second paragraph will contain the description of the defendant. Where there is more than one defendant, each will be described in separate paragraph.

The main body of the plaint will constitute the facts which show the cause of action.

Towards the end of the plaint there should be a statement to the effect that a claim has been made and the defendant has refused to accede to it.

There has to be a paragraph towards the end to show that the court has jurisdiction. This is followed by prayer for reliefs. See: Rule 2.

Note: that a relief not prayed cannot be granted.

At the end of the prayer of relief there must be a signature of the plaintiff or any person entitled by the law. Then comes verification which should be signed at the left hand corner by an Advocate or Magistrate.

Normally there is no specific type of paper to use but the practice is – pleadings are written in light green paper which is less than 800 grams.

In England, there is a rule – it must be an A4 paper. In Tanzania it must be in a foolscap.

General notes on Plaint.

- The names together with the description and the place of residence or place of business must be set out in the title part of the plaint.

- If the plaintiff is unable to give the full name of the defendant it is better to state in the body of plaint that, in spite of his best endeavor,  the plaintiff could not ascertain the full name of the defendant.

- A corporation must sue or be sued in its full corporate name.

- Partners may be sued in the firm’s name.

- The capacity in which the plaintiff sues or the defendant is being sued ordinarily be set out in the body of the plaint.

- Dual capacity, as where the plaintiff sues in a representative capacity as also in his own right should be clearly stated.

- Rule 1 (b) and (c) of Order VII requires that the place of the plaintiff or the defendant is to be stated in the plaint. It does not say anything about the place where the plaintiff or the defendant carries on business or personally works for gain.

- Place of residence however, can only apply to person actions. It cannot apply to a firm, corporation or government.

Even in personal actions the place where a party carries on a business or personally works for gain may be, and often is stated instead of his place of residence.

In case of registered company, the place where the registered office of the company is situated or where any of the branch offices of the company is situated.

The body of the plaint should be divided into paragraphs and consecutively numbered.

Dates, sums and numbers should be expressed in figure. See: Order VI Rule 2.