Rejection of plaint in Tanzania.

RETURN AND REJECTION OF PLAINT.

RETURN OF PLAINT

A plaint is return to the person who filed it in a wrong court i.e court with no jurisdiction.

The return is made, either at the presentation of the plaint or at the time of hearing. Only a judge or magistrate has power to return a plaint.

It is a judicial act in the sense that the judge or the magistrate must give reasons for the return and these must be recorded.

Order VII Rule 10(2) the wrong court has no power to dismiss the suit. You do not have jurisdiction to entertain the suit therefore you do not have power to dismiss the suit.

The proper approach is not to dismiss it but to return it to the proper court.

This exercise may be at any stage of the suit. It depends upon the time the court discovers.

REJECT OF THE PLAINT

Order VII Rule 11 

 There are three circumstances under which a court may reject a plaint:

I. Where the plaint does not disclose a cause of action.

II. Where it appears to the court that the claim is under-valued. After the court has given power to the plaintiff to value it properly and the plaintiff has declined to do so.

III. Where on the face of the plaint the suit appears to be barred under any law. Eg. The Law of Limitation Act, Security of Employment, res judicata, res sub judice, etc.

The flexible approach of courts of Tanzania has resulted into the amendment of rule 11 by GN 228/1971. Under the amendments the Chief Justice used his power of making rules under section 81CPC to add a proviso to rule 11 which states: “Provided that where the court is of the opinion that, by allowing an amendment the plaint will disclose a cause of action, the court may order an amendment instead of rejecting the plaint.” The implication is that

When the court rejects the plaint it must state that the reasons for so doing as this order are appellable.

Rejection of a plaint is not a decision of the case on merits and therefore the doctrine of res judicata will not apply Rule 13 Order VIII.

A rejection of the plaint under this rule does not operate by itself as a bar to the plaintiff against filing a fresh suit on the same subject matter and of the same parties.

DOCUMENTS TO BE RELIED UPON BY THE PLAINTIFF IN A PLAINT 

There are two documents:

1. Those which form the basis of the claim.

2. Those which form the evidence to support the plaintiff’s claim.

Those documents which form the basis of the claim will be annexed to the plaint but those which form the evidence need not be annexed to the plaint.

Those in category  1 must be in the parties’ power of possession.

A list of those documents which are not in the power of possession of the party and which will be used in evidence may be annexed to the plaint or listed at the foot of the plaint.

Consequences of not disclosing the documents

The party proposing to rely on the documents cannot produce them in court unless granted leave of the court.

Although those documents will be inadmissible they may assist in cross-examination. Order Vii Rule 18(2).

The principle of contingent cumulation – requires a party to plead every remedy/cause of action which is available however contradictory.

Eg. I never ran him over.

Even if I ran him over, which is denied, I was not negligent.

Even if the court finds me liable for running him over I was not negligent.

Even if I ran him over, and even if I was negligent, which is denied, the defendant was contributory negligent.

NB. The contradictions are allowed because they help frame the issue.

The Principle of Preclusion says that the party cannot lead evidence on anything which was not pleaded. If one does not plead it he is precluded from leading evidence on it.