Procedure of hearing in Tanzania

PROCEDURE OF HEARING A SUIT

Order XVIII

The Order enacts the principle of Orality of Proceedings as distinguished from Pleadings.

It also enacts the principle of MEDIACY as opposed to IMMEDIACY. The court must see the parties and hear the witnesses. See the provision of Order XXVI (Commission to examine witnesses).

What is the Order of Hearing?

As a general rule it is the plaintiff who has the right to begin unless the defendant admits the plaintiff’s allegations but gives counter-allegations in which he will have to begin.

The person on whom the burden of proof lies is the one who has the right to begin.

He begins by giving an opening address which comprise of the general overview of his case and will tell the court the way he will proceed discharging his burden of proof.

He will in the opening speech tell the court in summary the nature of evidence and witness he has. In practice it is not always the case. 

Opening speeches are rarely given.

As a practitioner you should see whether there is an ideal situation for making a speech in the court.

After the opening address

The Plaintiff gives his address. It is at this stage he can give evidence on oath and call his witnesses one by one. 

After the Plaintiff has stated his evidence then the defendants gets a chance to state his case in open audience and gives his evidence.

Immediately after this the defendant has the right to address the court on all the evidence. This is normally called the Final Submission.

Then the Plaintiff has the right to reply.

It is the plaintiff who begins and it is him who concludes.

Technical Hearing

Under the Criminal Procedure Act section 230 the court has to rule as to whether there is a prima facie case or no case to answer

Criminal case can be concluded even before the accused talks BUT under the Civil Procedure Code there is no provision which talks about prima facie case. In East Africa there is no law which talks of no case to answer in civil litigations as in criminal litigations. Therefore there is a lacuna in our law. We have to go to the provisions of section 2 of the Judicature and Application of Laws Ordinance (JALO) cap 534. (22nd July 1920). Under this provision the procedure used in England should apply. The provisions bring the procedure under Common law of no case to answer.

The procedure to be followed for no case to answer in civil litigations in Tanzania according to case law is different from that of criminal litigations.

In criminal proceedings once the court has established that there is no case to answer the court cannot compel the accused to say that there is a case to answer. 

What is the Submission of No Case to Answer in Civil Proceedings?

See Ramsden V Ramsden [1954] All ER 623.

Vye V. Vye [1969] All ER 29

In the case of Ramsden it was stated

“There are two sets of circumstances under which defendant may submit that he has not case to answer. In the one case there may be a submission that accepting plaintiff’s evidence at its value no case has been established in law and in the other that the evidence led for the plaintiff is so unsatisfactory or unreliable that the court should find that the burden of proof had not been discharged. 

Submission of No Case to Answer in Civil Cases

Can a defendant, at the close of a plaintiff’s case submit in law that there is no case to answer?

Refer Hon. JK’s decision in MWALIMU PAUL JOHN MHOZYA V. THE AG HC Civil Case No. 206 of 1993 DSM Registry; citing the case of Daikin Air-conditioning (EC) V. Harvard University (DSM) Civil Appeal No. 21 of 1976. He held: “A submission of no case to answer in a civil case stands on the same footing as a submission of no case to answer in a criminal case, save that there is a difference in the standard of proof. What then is the test to be applied when such a submission is made? As I understand the law, when the dismissal of the plaintiff’s case on the basis that no case has been made out is prayed for, the court should not ask itself whether the evidence given and/or adduced by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff. The submission of no case to answer cannot be upheld if there is sufficient evidence on record on which a court might make a reasonable mistake and enter a judgment for the plaintiff. Whereas the test to be applied at the close of the defendant’s case is what ought a reasonable to court to do? The one to be applied on determining the validity or otherwise of a submission of no case to answer is what might a reasonable court do?  :  

See: Supreme Service Station (1969) (Pvt) Ltd v. Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1. The latter test I have described is the one I must apply in determining Mr. Mwidunda’s submission in the matter now before me.”  

EFFECT OF A SUBMISSION OF NO CASE TO ANSWER

A submission of No-Case-To-Answer does not have an automatic effect of suspending the proceedings until the decision is made on whether a prima facie case has been established or not.  It is the duty of the court to put the defendant to an election. The defendant will have two options:

1. He may rely totally on the submission of no case to answer in which case he court will have to make a ruling; or

2. He may submit that he does not have a case to answer and yet produce evidence against the plaintiff’s allegations.

Once the Court addresses its mind to submission of no case to answer and then overrules that submission then it proceeds immediately giving a judgment basing on the evidence given instead of adjourning the hearing. 

The procedure has been discussed in the following cases:

1. Alexander V. Rayson [1936] 1KB 169  

2. Parry V. The Aluminum Corporation Ltd. [1940]….162 LJ 236

3. Laurie V. Raglan Building Company [1942] 1KB 152

The three have one thing in common. They are authority for the proposition that where a submission of no case to answer is given by the defendant, it does not mean that by the defendant submitting a no case to answer ipso facto loses his right to call evidence when his submission is overruled. He loses his right to call evidence only when he definitely elects not to call evidence. Such an election can be made either expressly or impliedly.

See the case of DAIKIN AIR CONDITIONING (EA) LTD V. HAVARD UNIVERSITY (HC) Per Samatta J, Civil Case No. 21/76 Unreported. This case adopted the three cases cited above. 

HEARING CONTINUES

All witnesses have to be examined in open court under the personal direction of the magistrate or the judge. The evidence has to be recorded in the language of the court in the narrative form except where the party considers that a particular question or answer is important and also the court considers it so.

When certain questions are objected to by one party but allowed by the court the reasons for allowing them must be recorded.

The court also has the duty to record the impressions on the demeanour of the witnesses before it i.e. Judge’s Notes.

When a witness has been released the court has power under order XVIII rule 12 to record the examination. When the magistrate fails to conclude the hearing the evidence he has recorded may be used by the subsequent magistrate. 

But in the case of Thobias Zenda V. Herman Zenda [1977] LRT n.23 it was stated that – where the decision depends on the previous magistrate’s observation of the demeanour of the witnesses – the correct position should be concluded by the same magistrate or the trial starts afresh before a new magistrate. 

AFFIDAVITS

Affidavits are written statements of evidence which are sworn before a Commissioner for Oaths.

Mainly they are not used for the main suit because of the fact that in the main suit the principle of orality applies.

Refer Order XLIII Rule 2 of the Civil Procedure Code. 

Although affidavits may be accepted instead of oral statements, the opponent has a right to demand personal appearance of the witness for cross-examination but this is within the discretion of the court.

The Person who swears the affidavit is called a deponent.

General Rule:  

All civil proceedings must be commenced by a plaint and evidence must be viva voce i.e oral. 

However the court has discretion to allow evidence in writing. When the court allows that evidence to be in writing it has to be by way of an affidavit.

Note:

1. That affidavits save time.

2. There is a disadvantage of the court not observing the demeanour of the witness.

3. Affidavits are evidence and they should therefore follow the rules of evidence. Nothing is inadmissible in oral evidence that can be made admissible in affidavits.

GENERAL RULES OF DRAFTING OF AFFIDAVITS

1. Affidavits are Court Documents. Like any other court document an affidavit has to have a TITLE i.e Name of the Court, Parties, Nature of the Proceedings and their Number. 

2. If the deponent is a Christian there may be a clause to make an oath. In any other religion the deponent solemnly affirms.

3. All affidavits have got to be sworn in the first person. Nobody can swear an affidavit on behalf of another. This will be hearsay evidence. It should be either “I” or “WE”.

4. All statements of fact in an affidavit must appear in separate paragraphs which must be consecutively numbered.

5. An affidavit should not contain hearsay evidence EXCEPT IN INTERLOCUTORY APPLICATIONS where by virtue of Order XIX rule 3 a deponent  may swear on certain facts on the information in belief of that – these can be disclosed.

6. Affidavits as statements of evidence are not submissions and therefore they should not contain argumentative material but statements of fact.

7. All affidavits have to be signed by the deponent in the presence of a Commissioner for Oaths. The signatures must be accompanied by the date. The left hand corner of the affidavit is known s the Jurat. ie “SWORN or AFFIRMED AT DSM by..”  

8. An advocate who draws an affidavit for his client cannot attest it by himself. He must find another advocate to attest it. 

CONSEQUENCES OF FILING A DEFECTIVE AFFIDAVIT

A defective affidavit is the one which breaches the rules relating to the drafting of affidavit.

A defective affidavit is generally rejected by the court. However, superficial defects can be allowed to be rectified eg by removing the offensive paragraphs and leave the clear ones.

See:

1. Project Planning Consultants V. Tanzania Audit Corporation [1974] LRT n. 10 

- It deals with defective affidavits and what the court will do with defective affidavits.

- It was also held that an advocate who draws an affidavit for his client should not attest it himself.

2. Mtaki V. January Kapembwa [1976] LRT n. 7  

Where an affidavit is made on information it should not be acted upon unless the sources of the information have been disclosed.

3. Margovind Savani V. Juthalal Velji Ltd. [1969] HCD 278

The case gives good definitions of an Affidavit and a Statutory Declaration

“Both affidavit and Statutory Declarations are written statements solely made on oath as true facts on the knowledge, information and belief of the declarant. In affidavits one must distinguish between the facts that are true to his own knowledge from those which he thinks or believes are true to his information and belief and in the latter group he must also disclose the sources of his information as well as his grounds for belief.”

The same position was held in the case of Thseen-sthlunion Export  & GMBH V. Kibo Wire Industries Ltd. [1973] LRT n.54. 

RECENT JUDICIAL DECISIONS

PLEADINGS:

STATEMENT OF DEFENCE:

NOTCO (TANZANIA) LIMITED V. FREIGHTWINGS INTERNATIONAL LTD.

High Court Civil Case No.293 of 1988 DSM Registry (Unreported)

Mkude J,

Cited KASHIBAI V. SEMPAGANA (1962) EA 16 per Bennet J, in which the defendant was ordered to furnish particulars of his defence that “the plaint was bad in law and did not disclose any cause of action.”  The learned Judge quoted from the A.I.R. Commentaries (7th Edition) Vol. II pg. 2182 the following passage relating to what should be pleaded in written statement of defence which raises a point of law:

“Where the defendant contends that the suit or application is misconceived he must specify or particularize why he contends that the suit or application is misconceived. If he relies on any facts for those purposes he must state those facts in his pleading, if it is merely the position in law which he relies on, he must set out with sufficient particulars the position in law upon which he ultimately bases his submission.

PLEADINGS & RELIEFS

MICHAEL LOSINA V. MARCEL LOSINA

High Court Civil Appeal No. 7 of 1986 Dodoma Registry

Masanche J,

The first legal principle in civil cases is that parties to litigation are bound by their pleadings and that a court of law may not depart from the agreed issues unless there is good cause and unless evidence is led to prove the necessity for such departure. Spry V.P said in the case of Nkalube V. Kibirige [1973] EA at page 105 that:

“It is true that this Court has said, more often than once, that while the general rule is that  “relief not founded on the pleadings will not be given (Per SINCLAIR V.P in Gaudy V. Gaspair (1956) 23 E.A.C.A 139 at 140), a court may allow evidence to be called (emphasis supplied) and may base its decision, on unpleaded issue, if it appears from the course followed at the trail that the unpleaded issue has in fact been left to the court for decision”. (Per LAW J.A in Odd v. Mubia [1970] EA 476 at p.478).

See: Order VI Rule 17 CPC – Amendment of pleadings. 

But it was cautioned by the Court of Appeal, in the case of Eastern Bakery V. Castelins [1958] EA 461 and quoted with approval by Onyiuke J, in the case of Shivji V. Pallegrini (1972) HCD n.76 where Onyiuke J, said:-

“As a rule amendments to pleadings should be freely allowed if they can be made without injustice to the other side. The powers of amendment should not be used to substitute one cause of action for another or change an action into another of a substantially different character.”

See also the case of BISHOP H. N. SARYA & 2 OTHERS V. SAIMON BUTENG’E & 16 ORS

HC Civil Case No.68 of 1989 Mwanza Registry per Masanche, J;

Citing Chitaley in the Code of Civil Procedure, at page 1304

“The main consideration to be borne in mind in exercising the discretion (to amend or not to amend) are that the rules of procedure have no other aim than to facilitate the task of justice, that multiplicity of suits should be avoided and that the interests of substantial justice should be advanced. Thus a court should order for the amendment of a pleading where there has been a clerical error, or a bona fide wrong description of property or where there has been mistake of law or fact, provided there is no injustice to the other side which cannot be compensated by the award of costs.” 

Masanche J adds;

“It is gratifying to note that in the recent case of General Tito Okello v. Sospeter Awiti Civil Appeal No.13 of 1990, of the Court of Appeal, Dar es Salaam Registry, Makame J.A has advised that where there are errors of oversight, such as the one here, of defendants not signing the written statement of defence, or, of forgetting to attach an annexture to the pleadings, proviso to Order 7 Rule 110 of the Civil Procedure Code 1966, as introduced by GN, No.228 of 22/10/71 should be used. The proviso reads:-

“Provided that where a plaint does not disclose a cause of action or where the suit appears from the statement in plaint to be barred by any law and the Court is satisfied that if the plaintiff is permitted to amend the plaint, the plaint will disclose a cause of action, or as the case may be, the suit will cease to appear from the plaint to be barred by any law, the Court may allow the plaintiff to amend the plaint subject to such conditions as the costs or otherwise as the Court may deem fit to impose.”

JUDGMENT & DECREE

Judgments and decrees are covered by O.XX rule 1 CPC.

At the conclusion of the hearing the court will pronounce judgment. Decree follows the judgment.

Definition of judgment is found under Section 3 of the CPC.

A judgment is a statement of the decision of the court at the conclusion of the hearing of the case plus the reasons for such a decision of the court.

In the judgment the court is supposed to address its mind on the issues, evidence and the provisions of the law which govern that dispute.

There are however certain circumstances under which the judgment can be dictated to a  Stenographer.

TYPES OF JUDGMENT

There are two types of judgment i.e. Judgment in Rem and Judgment in Persona

1. Judgment  In Rem

It is a judgment which attaches to the thing. It is a judgment against the whole world. It relates to one’s absolute right.

2. Judgment In Persona

It is a judgment which attaches to a person. It relates to the right of that person only but it does not include other better rights invested            in other persons.

For example – Land lord & Tenant/Trespasser.

They are rights inter se and the judgment should be in person.