Process of filing and determining civil suits under Civil Procedure Code. By Johnson Yesaya. L.LB.

 Filing of a civil suit.

As per Order IV rule 1(1) of Civil Procedure Code , “every suit  shall be instituted  by  presenting a plaint electronically  or  manually  to  the court or such  officer appointed  in  that  behalf”. Institution of suit can be done by filing other documents other than plaint as provided by laws for purpose of instituting a suit of a particular nature. Some civil suits can be filed by lodging petition before the court and not plaint. Probate suits, divorce, suits challenging provisions of the law are all filed by petition. Every  plaint must comply  with  the rules contained in Order VI and  VIII, so far as they  are  applicable.

Prior filing a suit before court, a party who needs payment of cost must serve a demand letter to another party. It is not mandatory to write a demand letter but law says its proper to issue a demand letter if we need costs in civil cases. After you have instituted the case it is this letter which shows that you invited the other party to settle the matter, thus Demand letter is the evidence before the Court of law.

In Tanzania Electric Company Limited vs Sahara Media Group Limited , a suit was dismissed for, together with other reasons, but the failure by plaintiff to prove service of demand notice failed to establish a fact that, defendant destroyed plaintiff's studio's equipment.

Mngenyekwa, J. states that, “It is my considered view that the Plaintiff failed to prove if the demand letter was served upon the defendant. The Plaintiff was duty bound to prove that allegation. That is in accordance with the elementary principle of he who alleges must prove as embodied in the provisions of section 110(1) of the Evidence Act , as stated in the case of Abdul Karim Haji v Raymond Nchimbi Alois and Another , the Court of Appeal of Tanzania held that:- 

".it is an elementary principle that he who alleges is the one responsible to prove his allegations."

Prior filing, an advocate or a party is required to consider Jurisdiction of the court where suit is to be instituted, res judicata and res sub judice, cause of action or subject matter of the suit and special requirements for some civil suit i.e suits against government which requires notice of 90 days to be submitted to a minister before instituting suit against central government as provided under Section 6 of The Government Proceedings Act . Where a suit  has  been  duly  instituted,  it  shall  be  assigned to  a  specific  Judge or  Magistrate electronically  or  manually  by  the Judge  or  Magistrate  in  Charge  of  the  court.

After a suit is filed, a court of law will cause it to be served, a summon to another party to file a written statement of defense or to appear before court for other procedures. After all pleadings are complete between parties, now it is a time for determination of a suit which goes through several different procedures as provided under Civil Procedure Code .

Determination of a civil suits

• First Pre-Trial Conference

This  is a first meeting of the parties to a case conducted prior to trial after the Plaintiff has filed a Plaint and the Defendant has been given a summons to appear before the Court. The conference is held before the trial judge or a magistrate. This meeting is held after a Plaintiff has filed a Plaint and Defendant has filed written statement of defense or has called to appear for first pre-trial conference.

Pre-Trial Conference must be conducted within a period of twenty-one days from the conclusion of pleadings for the purposes of either:- Determine the speed truck of the case, Determine the case through Mediation or Other procedures not involving a trial. As provided  under CPC  Order VIIIA Rule 3(1) that, “ In every case assigned to a specific judge or magistrate, a first scheduling and settlement conference attended by the parties or their recognised agents or advocates shall be held and presided over by such judge or magistrate within a period of twenty-one days after conclusion of the pleadings for the purpose of ascertaining the speed track of the case, resolving the case through negotiation, mediation, arbitration or such other procedures not involving a trial”.

The presiding judge or magistrate, shall after consultation with the parties or their recognized agents or advocates, determine the appropriate speed track for such a case and make a scheduling order, setting out the dates or time for future events or steps in the case, including preliminary applications, affidavits, counter affidavits and notices, and the use of procedures for alternative disputes resolution.

• Mediation

This is a type of Alternative Dispute Resolution (ADR) where disputing parties under assistance of a neutral third party, a mediator, parties agree themselves to resolve their dispute. A mediator at this point may be a magistrate, a judge or any other third party capable of reconciling parties. At this stage, parties are allowed to choose a mediator for mediation before commencement of actual trial. 

This is provided under Order VIIIC Rule 1 that, “Where negotiation or mediation or other similar alternative procedure for resolving the matters in dispute between the parties is directed by the court under a scheduling order made under sub-rule (2) of rule 3 of Order VIIIA or under sub-rule (1) or rule 3 of Order VIIIB, such negotiation, mediation or similar alternative procedure, other than arbitration, shall be conducted in accordance with directions issued by the Chief Justice.”

• Final pre-trial conference

A judge or magistrate assigned to try a case is a one who presided over final pre trial conference for the aim of giving parties a final chance to reach an amicable settlement of the case to allow court of law to schedule full trial. The court of law is required to act as accordingly to speed track allocated to that particular suit.

The conference is to be held within a period not exceeding thirty days, forty days or sixty days from the time of full compliance with the first pre-trial conference order.  Where settlement of the case is not reached, the judge or magistrate after communication with the parties or their advocates shall frame issues and fixing the trial date or dates.

That is provided under Order VIIIB Rule 3.-(1) Where, after full compliance with the directions made under sub-rule (2) of rule 3 of Order VIIIA, the case remains unresolved, a final pre-trial settlement and scheduling conference shall be held, presided over by the judge or magistrate assigned to try the case for the purpose of giving the parties a last chance to reach an amicable settlement of the case and for enabling the Court to schedule the future events and steps which are bound or likely to arise in the conduct of the case, including the date or dates of trial.

(2) In making a final pre-trial conference order, the court shall be guided by the Speed Track to which the specific case is allocated. (3) The final pre-trial settlement and scheduling conference shall be held within a period not exceeding thirty days, forty days or sixty days from the time of full compliance with the first pre-trial conference order in respect of cases allocated to Speed Track One, Two or Three respectively. (4) Where an amicable settlement of the case is not reached pursuant to the provisions of sub-rule (1) of this rule, the judge or magistrate presiding at such conference, shall, after consultation with the parties or their recognised agents or advocates, make a final pre-trial conference order therein framing the issues according to provisions of Order XVII of this Code, and fixing the trial date or dates and generally providing for matters necessary for the expeditious trial of the case according to the relevant Speed Track.

• Hearing

This is a stage where parties adduce their evidence in support of facts of their cases. Parties are given chance to present different objects or things as exhibits and presentation of witnesses for testimonies in support of a case of a party called that witness. There are three process which are done during hearing which are examination in chief, cross examination and finally, re-examination. In examination in chief, parties are given chance to establish their cases by stating facts and evidence that are going to be used, number of witnesses and total information concerning claims. Cross examination is done by a party over a witness of the opponent party to shake credibility of the testimony and to destroy opponent's case. 

Finally re-examination is carried by both parties to re-establish the destructed areas of the case due to cross examination. Re-*examination can be ignored by a party whose evidence was not destroyed during cross-examination.

• Final submission

After closing the case, parties are required to make final submissions which are summaries of the entire case. In most cases the submission are done by advocates because of complexity of submissions which always needs citations of different authorities, provisions of the laws and precedents which are relevant to the matter at Court which a lay person cannot do.

As provided under Order XVIII Rule 2(1) of CPC,   “On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove. The other party shall then state his case and produce his evidence (if any) and may then address the court generally on the whole case. The party beginning may then reply generally on the whole case.This means that it is a defendant who starts to submit and it is here whereby provisions and cases will be cited, and these provisions and cases cited must be relevant to the matter at Court. Submissions can either be Orally or Written. After the defendant has submitted then it is a Plaintiff to submit and it is a defendant who is going to make a reply for that submission.  

• Judgment

As per interpretation of CPC  section 3, judgment means, “the statement given by a judge or a magistrate of the grounds for a decree or order.” Judgment is final decision in the disputed case. A judgment shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. The issues framed by court must be clearly explained on the findings of the court concerning those issue. Rule 3 of Order XX requires judgment  to be written in a language of the Court which is English except for primary court. The judgment must be dated and signed by such presiding judge or magistrate and be shall be pronounced in open court and, when once signed, shall not afterwards be altered.

• Execution

Execution phase, post trial phase or after judgment stage, is a final phase where an aggrieved party may lodge an appeal against the judgment entered, or a winning party may begin execution of judgment or decree. In post trial phase, an aggrieved party may lodge an appeal against entire judgment, or may file an application for review or revision depending the situation. This is a court order granted to put in force a judgment of possession obtained by a plaintiff from a court. When issuing a writ of execution, a court typically will order Court broker or other similar official to take possession of property owned by a judgment debtor.

Modes of execution of decree or order includes attachment and sale, arrest and detention of a judgement debtor, garnishee order, seizure and delivery, demolition and appointment of a receiver.

Conclusion

A party aggrieved by decision of any court is required to appeal to another super power court in a hierarchy. Appeals to higher court are subject to several rules in term of documents, mode of filing, court where appeal to be filed and special requirements for appeals originate from primary  and district court to court of appeal. Another option for appeal, an aggrieved party may file application for review or revision of the matter.

REFERENCE

Books

Mulla, D.F.,  Code  of  Civil  Procedure, 1908, Volume 2, p. 17

Rao  and  Chitaley.,  Code  of  Civil  Procedure, Volume 3

UDSM, “Civil Procedure Manual, 2002

Statutes

Civil Procedure Code, Cap. 20 [R.E. 2019]

The Appellate Jurisdiction Act, Cap. 141 [R.E. 2019]

The Evidence Act, Cap. 6 [R.E. 2002]

  The Government Proceedings Act, Cap. 5 [R.E. 2019).

Case law

Tanzania Electric Company Limited vs Sahara Media Group Limited (Civil Case no. 15 of 2019) [2021] TZHC 2231; (26 February 2021)

Abdul Karim Haji v Raymond Nchimbi Alois and Another, Civil Appeal No. 99 of 2004 (unreported)