Rules and procedures regarding counter-claim in Tanzania.

PRELIMINARY

The rules and procedures regarding counter-claim are provided in the Civil Procedure Code[1] under Order VIII Rule 9-12, laws of Tanzania. Counter claim means a claim made by the defendant in a civil suit against the plaintiff[2]. It is a claim independent of and separable from the claim of the plaintiff, the counter claim happens when a defendant has a cross-claim against the original plaintiff. A defendant can file a counter-claim in respect of a cause of action which is independent of the cause of action averred by the plaintiff[3]. It need not confine to cause of action of the same nature as of the plaintiff or be related to or be connected with the original cause of action or matter pleaded by the plaintiff. A counter claim is treated as a plaint capable of instituting a fresh suit. Counter claim cannot be brought on the same cause of action so as to avoid multiplication of suits which may hinder dispensation of justice.

RULES AND PROCEDURES OF COUNTER-CLAIM

Rule 9(1)(a) and (b) and subrule 2 of order VIII of the Civil Procedure Code[4] provides that, where in a suit the defendant alleges that he has a cross claim or is entitled to any right or relief or remedy against the plaintiff in respect of a cause of action accruing to the defendant before the presentation of a written statement of his defence the defendant may state particulars of the claim made or relief or remedy sought by him within his written statement of defence. The CPC allows if the defendant has cross-action against a plaintiff, to include particulars of that claim in his written statement of defence to inform court that there is a cross-action than need to be attended together with main plaintiffs’ cause of action. A written statement of defence shall not state particulars of claim where the suit is brought for the recovery of taxes, duties or penalties or where the suit is brought for repayment of any taxes, duties or penalties.

As per subrule 2 of rule 9 of Order VIII, where a counter-claim is set up in the written statement of defence, that particular counter-claim will be treated as a cross-suit and the written statement of defence will have the same effect as plaint and all the rules governing plaint particularly Order VII will apply mutatis mutandis.

Rule 10(1) and (2) of order VIII of the Civil Procedure Code[5] provides on a mode of joining third parties connected to a counter claim. Subrule 1 of Rule 10 of Order VIII provides that, when a counter claim raise a question between defendant, plaintiff and any third party whether or not a party to a suit, may join that party against whom counter claim is made. When a defendant joins a third party, he must set a name at a title section of a counter claim to show a name(s) of joined party(s). In addition, a copy of a written statement of defence and notice must be given to the joined party so as he can prepare written reply to the counter claim as provided under subrule 2 of rule 10 of order VIII.

As per Rule 11(1) and (2) of order VIII of the Civil Procedure Code[6], a plaintiff and a third party joined to a counter claim, may reply with a written reply to counter-claim containing statement of defence within a period of 21 days from the date of service of the counter-claim. Subrule 2 of Rule 11 requires all rules regarding written statement of defence shall apply as it is provided that the CPC provides otherwise.

As per Rule 12 of order VIII of the Civil Procedure Code[7], court may order separate trials of counter claim. Where court is of the opinion that a counter-claim may harm main suit, it may order counter-claim to be tried separately from the main suit. And if the counter claim is improperly set up in the written statement of defence, a court may struct out a counter claim or makes any order as it think fits.

CONCLUSION

The main intention of counter claim is set off, when a defendant has a monetary claim against a plaintiff, he may set up a counter claim in a written statement of defence to seek orders of the court for set off of the claims of the plaintiff. Set off is a claim set up against another, it is a cross-claim that partly offsets the original claim. It is the extinction of debts of which two persons are reciprocally debtors to one another by the credits of which they are reciprocally creditors to one another. Where there are mutual debts between the plaintiff and the defendant, one debt may be settled against the other. It is a plea in defence, available to the defendant. By adjustment, set-off either wipes out or reduces the plaintiff's claim in a suit for recovery of money.

 REFERENCE

BOOKS

D.F. Mulla, Code of Civil Procedure 1908: in 2 volumes. A practitioner’s book to be used carefully because some of the principles do not apply in Tanzania.

I.H. Jacob Chitty’s Queens Bench Forms.  It gives method of drafting and interrogating. It covers many things except Plaints.

 

STATUTES

Civil Procedure Code, [Cap 33 R.E 2019]

 

OTHER SOURCES

Times of india. “Different between Set off and Counter”, available at Claimhttps://timesofindia.indiatimes.com/readersblog/lawpedia/different-between-set-off-and-counter-claim-41384/ (Accessed 26 October 26, 2022.

Legal Service India, “Set-off and Counter-Claim: An analysis”, available at https://www.legalserviceindia.com/legal/article-7950-set-off-and-counter-claim-an-analysis.html (Accessed October 26, 2022.

---

[1] Civil Procedure Code, [Cap 33 R.E 2019]

[2] Times of india. “Different between Set off and Counter”, available at Claimhttps://timesofindia.indiatimes.com/readersblog/lawpedia/different-between-set-off-and-counter-claim-41384/ (Accessed 26 October 26, 2022.

[3] Legal Service India, “Set-off and Counter-Claim: An analysis”, available at https://www.legalserviceindia.com/legal/article-7950-set-off-and-counter-claim-an-analysis.html (Accessed October 26, 2022.

[4] Ibid

[5] Ibid

[6] Ibid

[7] Ibid