Answered by: Daud Kimario
College: Moshi cooperative university (Mocu)
Programme: LLB
Year of study: II
Qn: Discuss the circumstances under which a court of law will make the following four order
(i) Amendment of pleadings
(ii) Discovery and Inspection
(iii) Striking out of pleadings
(iv) Summary judgement
OUTLINE
1:0 INTRODUCTION
2:0 AMENDMENT OF PLEADINGS.
2:1 The circumstances under which the court of law would make an order of amendment of pleadings.
3:0 DISCOVERY AND INSPECTION
3:1 The circumstances under which the court of law would make an order of discovery and inspection.
4:0 STRIKING OUT OF PLEADINGS
4:1 The circumstances under which the court of law would make an order of striking out of pleadings.
5:0 SUMMARY JUDGEMENTS
5:1 The circumstances under which the court of law would make an order of summary judgement.
1:0 INTRODUCTION
Courts of law in their process of administering justice are encountered with different kinds of roles/functions to which they must perform, as they are part and parcel of the court procedure. In this respect, it is the aim of this presentation to discuss in detail one of the roles of the court of law, which is concerned with making orders. This paper will most specifically dwell on the circumstances under which a court of law would make the following orders: Amendment of pleadings; discovery and inspection; striking out of pleadings and summary judgement.
2:0 AMENDMENT OF PLEADINGS.
Pleadings is the formal allegations by the parties to a law suit of their respective claims and defenses, with the intended purpose being to provide notice of what is to be expected at trial[1]. Under rules of civil procedure, the pleadings consist of a complaint, an answer, a reply to a counter-claim, an answer to across claim, a third party complaint, and a third party answer. The same is defined under Order vi Rule 1 of the Civil Procedure Code, hereinafter referred to as the CPC.
At any stage of the proceedings, the court has the power to allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. But all such amendments must be made for the purpose of bringing out for determination the real questions in controversy between the parties[2].
This rule, like most of the rules governing pleadings, is based on the principle that pleadings must raise all matters that are in dispute so that either party is aware of what the other party contends, and so that a multiplicity of legal proceedings is avoided. It is in this vein that, such amendments must be freely allowed if thereby the real substantial questions can be raised between the parties and a multiplicity of legal proceedings avoided. It should be borne in mind that, the making of the amendments is not really a matter of power of a court but it is the duty of the court to allow such amendments, so that substantial justice may be done[3].
Previously, the proviso under Order vii Rule 11(a), as amended, used to reject a plaint when and where it did not disclose the cause of action. But the G.N. No. 228 of 1971 now has cured the position under a proviso. That, provided that if the court is satisfied that if the plaintiff is permitted to amend the plaint, the plaint will disclose the cause of action if the court may allow the plaintiff to amend the plaint subject to such condition as to costs or otherwise as the court may deem fit to impose. The same position was reiterated in the case of HANS NAGORSEN .v. BP TANZANIA LIMITED[4], where Kyando J, ordered the plaint to be amended so that defects pointed out could be rectified.
Another circumstance is where there is a question of controversy between the parties in dispute. A point of controversy can arise for instance, where parties in dispute have not agreed as to what document is to be attached to the plaint as annexure. In support of this aspect is the case of TANZANIA OLYMPIC COMMITTEE .v. A. SIMBAULANGA,[5] where it appeared that there had been confusion between the parties as to the annexures to certain documents in the pleadings. In this regard, the court of Appeal ordered for the amendment of the plaint.
3:0 DISCOVERY AND INSPECTION
In a general sense, discovery is the ascertainment of that which was previously unknown, the disclosure or coming to light of what was previously hidden, the acquisition of notice or knowledge of given acts or facts, as in regard to the discovery of fraud affecting the running of the statute of limitations or the granting of a new trial for newly discovered evidence[6].
Therefore, it is the utter purpose of discovery to make the other party disclose the existence of documents and the inspection of documents by the party applying for such discovery. Inspection is to examine, scrutinize, investigate, look into, check over, or view for the purpose of ascertaining the quality, authenticity or conditions of an item, product, document, residence, business etc[7].
Discovery and inspection are governed under Order xi of the CPC. In any suit the plaintiff or defendant by leave of the court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer[8].
Interrogatories as a general rule are to be allowed whenever the answer to them will serve either to maintain the case of the party administering them or to destroy the case of the adversary. In England, interrogatories are allowed so as to ascertain the nature of your opponent’s case or the material facts constituting his case, and to support your own case either directly by obtaining admission or indirectly by impeaching or destroying your adversary’s case[9].
In our jurisdiction, in respect of Order xi Rules 2, 10 and 15(2) of the CPC, the court shall make order as to discovery and inspection of documents when and so far it is of the opinion that it is necessary either for disposing fairly of the suit or for saving costs and must not be unreasonable. Order xi makes provision for the delivery of interrogatories by either party by leave of the court.
Objection to answering any interrogatory may be taken in the affidavit in answer on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit or not sufficiently material or on any other ground.
Striking out is the procedure for attacking pleadings and originating processes on the ground that they are not correctly formulated. A successful striking out application may result in an action being stayed or dismissed, the pleading being struck out and judgement being entered or it may result in the offending part of the pleading being struck out[10].
Generally, a court may, at any stage of the proceedings, order that any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit be amended or struck out[11]. There is usually no difficulty in deciding what matter is necessary. The difficulty lies in deciding what matter is scandalous, embarrassing or prejudicial to a fair trial of the suit. A matter is said to be scandalous if it is indecent or needlessly offensive, or is an allegation made for the malignant purpose of abusing or prejudicing the opposite party[12].
In considering the question whether a pleading tends to prejudice, embarrass or delay the fair trial of the suit, a liberal interpretation should be given to the words ‘trial of the suit’. Hence, not only a pleading, which tends to prejudice or embarrass a party at the actual trial of a suit but also a pleading, which tends to prejudice or embarrass at any stage of the proceeding in the suit, would be within this rule.
Incomplete allegations of facts can be struck off and further, the allegations which are totally unnecessary and have been made with a view to embarrass the defendants cannot be permitted. A pleading is embarrassing if it is so drawn that it is not clear what case the opposite party has to meet at the trial. But a pleading is not embarrassing merely because it is prolix[13].
This is a procedural device available for prompt and expeditious disposition of controversy without trial when there is no dispute as to either material fact or inferences to be drawn from undisputed facts, or if only question of law is involved. Any party to a civil action to move for a summary judgement on a claim, counter-claim, or cross claim when he believes that there is no genuine issue of material facts and that he is entitled to prevail as a matter of law[14]. Summary judgement is a procedure whereby a plaintiff can apply for judgement against a defendant, usually shortly after saving a Statement of Claim, without proving the case at trial. The policy behind the procedure is to prevent delay in cases where there is no defence[15].
Under Order xxxv of the CPC, it is clear that, in a summary suit, the trial begins after the court has granted leave to the defendant to contest the suit. Having done this, the court can proceed upto the stage of hearing the summons for judgement and passing the summary judgement in favour of the plaintiff. This will be done by the court under two circumstances: If the defendant has not applied for leave to defend or if such applications has been made but refused; or if the defendant who is permitted to defend fails to comply with the conditions on which the leave to defend was granted[16].
REFERENCES
1. Civil procedure code cap 75 (R.E 2012)
2. Lecture notes on the civil procedure at Moi University
Citations
[1] Henry C. B, (1991) Blacks Law Dictionary, 6th Ed. p.798.
[2] Order vi rule 17 of the civil procedure code Act No.49 of 1966.
[3] HARJI KARSAN .v. MONJEE RAGHAVJEE (1943) E.A.C.A.10
[4][1987] TLR n.175 at 183.
[5] [1997] TLR 184 (CA)
[6] Henry. Op. Cit 322.
[7] Ibid. p.547.
[8] Order xi Rule 1. of the CPC.
[9] Vinay, K.G. (2005), Mulla Code of Civil Procedure, 14th Ed. p. 949
[10] Stuart, S. (1995), A Practical Approach to Civil Procedure, 2nd Ed. P. 361.
[11]Order vi Rule 16 of the CPC.
[12] Chipeta, B.D (2002) civil Procedure in Tanzania, p.69.
[13] Vinay. Op. Cit. P.809.
[14] Henry Op. Cit. 1001.
[15] Stuart, S. P. 158.
[16] Vinay, Op. Cit. P.1552.
