Qn; The failure to frame issues amounts to procedure irregularity and not illegality. In the light of this contention, outline the practical importance of framing issues and consequences of failure to frame issues.
- INTRODUCTION.
In every civil case, it is a common practice that issues are to be framed after the parties have presented their pleadings. The function of pleading is to ensure that the questions which are in controversy between the parties should be clearly ascertained so that each party is aware of what the other party contends and also enables the court to know what questions it has to decide in the particular suit[1]. In the case of JANMOHAMED UMERDIN V. HUSSEIN AMARSHI AND OTHERS[2] it was stated that the framing of issues is the rule that governs the conduct of a civil proceeding which neither the court nor counsel is entitled to leave out of account.
The duty of raising the issues rests, under the Civil Procedure Code, on the court. It should itself go through the pleadings and not depend merely on the draft issues filled by the parties[3]. But though the duty to frame issues is cast on the court, the responsibility for framing them should be shared by the pleaders appearing for either of the parties[4].
Issues are those questions on which the parties are not agreed and which the court is called upon to decide. Issues can also be defined as a point in question at the conclusion of the pleading between the contending parties in an action. Issues are to be frame in respect only of those facts which have been alleged by one party and either denied or not admitted by the other party[5], that is to say, a material proposition of fact or law is asserted or affirmed by one party but denied by the other[6]. Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue[7].
The issues can be of two kinds or types, that is, they may be issues of law or issues of fact. The issues of fact are those which their existence depend on evidence while issues of law on the other hand are legal conclusions derived at after application of the law to the facts which have been proved.
There are some circumstances in which court may be confronted with issues of both fact and law. Where the court is of the opinion that the suit or any part of it may be disposed of on the issues of law only, the court must try those issues first. In which case, it may, if it thinks fit, postpone the recording of the issues of fact until after it has disposed of those issues of law. In the case of SINGIDA REGIONAL TRADING COMPANY V. TANZANIA POST AND TELECOMMUNICATION CORPORATION[8] the court held inter alia that since the issue of law went to the root of the suit, the court had first to determine that issue of law.
If the court comes to the conclusion that the decision on the preliminary issues of law will dispose of the entire suit, it will postpone the issues of fact and decide on the issues of law, and where it turns out that issues of law suffice the disposition of the entire case then the issues of fact will be left out.
- Framing of Issues.
The assertion that failure to frame issues amounts to procedure irregularity and not illegality is true. This point can be substantiated by the case of NORMAN V. OVERSEAS MOTOR TRANSPORT (TANGANYIKA LTD)[9] which stated that the failure to frame issues is an irregularity which is not fatal so long as the parties at the trial knew what is the real question between them, and evidence is taken on it and the court considers it.
2.1 Importance of framing issues.
The framing of issues is a very important step because the outcome of the case will largely depend on issues that have been framed. The following paragraphs show why courts should frame issues and the importance of doing so.
- The issues guide the parties on how to go about in adducing evidence. A party will not be allowed to adduce evidence which does not go on proving or disapproving the issues framed. Such evidence will be irrelevant and hence inadmissible. Therefore, the framing of issues is very important because it will help courts to save time and costs for hearing matters which are irrelevant to the case.
- Apart from guiding the parties on how to go about in adducing evidence, the framing of issues helps the court to address its mind to specific issues, that is, confines the court to specific areas in which the issues have been framed. This was the view of the case of NKALUBO V. KABIRIGE[10]. However, there is an exception to this general rule in case the parties knew of the issues but they were not pleaded.
- The other importance of framing issues relates to appeals. If the case goes to appeal, the appellate court has to confine itself to issues framed in the trial court. The court of appeal cannot determine issues which were not framed during the trial but it shall deal with issues of law though they were not framed or were abandoned during the trial[11].
2.2 Consequences of failure to frame issues.
The failure or omission of framing issues may have two consequences. At the first place, it may be regarded as procedural irregularity which is not necessarily fatal to the proceedings[12]; and the other hand if the court is of the opinion that the failure or omission of framing issues prejudices the parties, such omission will be fatal[13].
The court will not hold that the omission or failure to frame issues was prejudicial to the parties if it is of the opinion that despite the fact that no issues were framed, the parties knew what was at issue and produce evidence in what they knew was at issue. This was also stated in AGRO INDUSTRIES LTD V. ATTORNEY GENERAL[14] where it was held that;
“when a trial court allows parties to address it on any issues, the court must conclusively determine those issues, notwithstanding that the issues were not in the pleadings”.
Omission or failure to frame issues shall be regarded as prejudicial to the parties where it results into parties failing to direct evidence to the issues. In such a case if any injustice occurs it is incurable except by quashing the decision of the court. This point was discussed in the case of JOSEPH MARCO V. PASCAL RWYEMAMU[15].
3.0 Conclusion.
Basing on what we have discussed above, we are of the opinion that the framing of issues is very important and that the failure to do the same may either be illegality or procedure irregularity depending on the facts of each case. Where such omission or failure to frame issue leads to injustice, then the court will quash the decision made basing on such omission.
#qn
[1] B.D. Chipeta, (2002), Civil Procedure in Tanzania, p.166
[2] (1953) 20 E.A.C.A. 41
[3] RUK-UL-MULK SYED ABDUL WAJID V. R VISWANATHAN AIR 1950 MIS 33 (FB)
[4] BHASKAR V. NARANDAS (1950) 608
[5] FATEH MUHAMMAD V. IMAM-UD-DIN (1920) 2 LAH LJ 188.
[6] the First Schedule to the Civil Procedure Code, 1966, Order XIV Rule 1(1) when read together with Order XIV Rule 1(2)
[7] Ibid, Order XIV Rule1(3)
[8] [1979] LRT n. 11
[9] [1959] E.A 131
[10] [1973] E.A 103 at 105
[11] SHAIKH MAKBUL V. UNION OF INDIA AIR 1960 Ori 146.
[12] MUHAMMAD YUSUF V. MUHAMMAD YUSUF AIR 1958 MAD 527
[13] WALI SINGH V. SOHAN SINGH AIR 1997 CaL 386
[14] [1994] TLR 43 (CA).
[15] [1977]LRT 59
