Answered by: Bashiru saidy
College: Institute of judicial administration (IJA)
Programme: Diploma in Laws
OUTLINE
- INTRODUCTION
-Meaning of Adversarial Dispute Settlement
-Features of Adversarial Dispute Settlement
2.0 MAIN BODY
2.1 The Reflection of the Adversarial System in the Provisions of the Code.
2.2 Observation of the Code In Relation to the Adversarial System.
- CONCLUSION
BIBLIOGRAPHY
1.0 INTRODUCTION
The concept of Adversarial system
There are several ways in which disputes involving individuals in the society can be settled: one of the ways is the adversarial system of dispute settlement. This is a system whereby the court has no role to play except in the hearing of the case, it is different from what is commonly known as inquisitorial system of dispute settlement. Adversarial system is a system where the parties to dispute appear before the court as enemies, they are the ones to prosecute the case, to decide on the procedural step to take and at what time, also the court plays a passive role.
The system has several features such as; the court merely plays a secondary role of enforcing the rules of procedure and will not take any procedural step which is within the parties rights’ to take or not to take without an express request from the parties. there for as Dr Lamwai[1] says the courts role is reduced merely to that of an umpire’s role court does not have investigative powers, can not call independent witnesses and can not try the issues which are not disclosed by the pleadings
The parties therefore under adversarial system play the predominant role in the conduct of the litigation until the actual trial which come from the predominant control of the court here the parties are regarded as opponent or adversaries who subject to the rules of court and orders made by the court in particular proceedings are free to conduct their litigation in their own way.
The parties are required to prepare their own cases for trial and make their own investigations in this sense therefore there is the party investigation and party prosecution. The party is supposed to call his own witnesses and to present his own case at the trial. Also the parties are the masters of procedure as any procedural step taken in a civil case must be taken by parties .Example the law allows the parties to demonstrate interrogatory but does not bind them to do so, this is what is called dispositive election. And finally the court gives his judgment after hearing both parties.
The adversarial system which owed its origin from the English Legal System presupposes the giving of decision on the basis of winner takes all. This system however was adopted in Tanzania by the reception clause which received the English Laws both procedural and substantive[2].
As to whether the courts in Tanzania adhered to the principles of Adversarial system of dispute settlement strictly the position was stated in the case of JOHN MAGENDO V GOVANNI[3] where the High Court stated that where a particular provision of law is cited wrongly it is the duty of the court having taken judicial notice of the law to correct it. Thus the case enunciated the position as to the status of adversarial system in Tanzania that the courts should not play hundred percent passive roles like in England.
2.0 MAIN BODY
After looking into the concept of adversarial dispute settlement it can be deducted that the system is also used in Tanzania to solve civil dispute, where by one of the statutes used is the Civil Procedure Code 1966 cap 33 RE 2002 (here in below referred to as the Code). As required by the question we shall now deal with the Code as to how it reflects the adversarial system.
2.1 The reflection of the adversarial system in the provisions of the code.
The existence of a dispute between persons presupposes the existence of a litis contestatio this is established where there has been a demand by one of the parties by way of a demand note and it has been met by a refusal by the other party. At this instance it is on the discretion of the party making such a demand to take the matter to court.
On the institution of any civil suit usually there are two parties that is the plaintiff who is the claimant and the defendant who disputes the claims. Order I rule1 deals with the plaintiff while Order I Rule 3 deals with the defendant in a civil suit. Under section 22 of the code it is provided that a suit is instituted by the presentation of the plaint or in any other manner prescribed. Usually it is presented by the plaintiff. This should be read together with Order VI Rule 1 which provides that there should be pleading.
Pleading includes plaint and written statement of defence which is a document drawn by the defendant in reply to what has been stated in the plaint by the plaintiff. Where there is pleading the sense of adversarial system is reflected as after presentation of the plaint by the plaintiff will make the defendant to react by presentation of written statement of defence as provided under Order VIII of the code this will only be possible where the defendant has been summoned as required by Order V Rule 1 (a) and (b). From this it can be seen that there is an active role of parties on the stage of institution of the suit and the court here plays a passive role this reflect on the adversarial system where by the system needs an active participation of parties in a suit.
On the same aspect another sense of adversarial system is evidenced under Order VII Rule 9 which requires the plaintiff to endorse on the plaint or annex there to, a list of documents (if any) which he has produced along with it. The collection of evidence and the presentation before the court is done by parties to the dispute; here the court plays a passive role. The finding of evidence by parties to dispute therefore reflects the adversarial system of dispute settlement.
Also the code reflects the adversarial system on the hearing stage, where it envisages for the appearance of the parties to the suit before the court as provided under Order III Rule 1 of the Code. Here the party himself may appear or may be represented by an advocate or by a recognised agent. Order IX rule 9 imposes the duty to the parties to appear before the court for the hearing or when summons is served. In the adversarial system appearance of the parties before the court is the inherent feature which in our law has been reflected in the above provisions. This duty is of paramount importance because the parties will be in the position to contest in the court and the judge/magistrate will be there as an umpire regulating the contest of the parties.
The code under Section 26 is to the effect that witnesses can be summoned to give evidence pursuant to sections 23 and 24 the same is well expounded under Order XVI Rule 1 that the parties at any time may apply to the court to obtain summons to be served to the persons/witnesses to appear before the court and give evidence. This presupposes that the parties to the suit are the masters of procedure they have to decide what procedural steps to take and at what time and the court becomes an arbiter or a referee hence becomes one of the ways in which the code reflects the adversarial system of procedure.
Again under Order XVI Rule 2 (1) the cost for calling witnesses is incurred by the parties which as a matter of procedure it is given to the court before the summons is granted and the time to appear is fixed. This reflects adversarial system which advocates for party investigation and prosecution as the parties are required to prepare his own case for trial hence the cost incurred therein is of the parties.
The parties in the suit have the rights to examine the witnesses, the aim being to collect enough evidence to support their suit Order XVIII Rule 2 (1) .The court in adversarial system operates in the basis of judicial ignorance and thus the court let the case unfold as presented by the parties; Hence the parties have to examine the witnesses they have called as the parties are presumed to have the best knowledge of their case.
In the adversarial system of dispute settlement the parties are required to make investigation and discoveries of their own case, the code under provisions of Order XI Rule1 provides that the parties to a suit being plaintiff or defendant may make interrogatories to the other party by the leave the court so as to make investigations(to enable the party to know the nature of his opponents case) on the matter in dispute provided that the interrogatories are given in one set unless otherwise provided by the court and such interrogatories should relate to the matter in dispute. Interrogatories are written questions which are put by a party to civil proceedings to his opponent and which must be answered by the opponent by filling an affidavit. There is no limit to the time in which interrogatories may be exhibited.
To enhance the contest between the parties to civil proceedings the code entitles the parties to issue a notice to his opponent for inspection of documents which are in his own possession or power as it is shown in Order XI Rule 13.to all these inspection and discoveries aimed at collecting evidence by the parties themselves. From this it can be said that likewise in the adversarial system parties are required to conduct investigation of their own case. And the court is there to listen the reason being that in private property and incidence of their ownership is known only to the owner as no way the parties can be excluded hence it is the party who knows where to find the evidence and therefore they must find their evidence at their own expense as provided under Order XI rule 3.
After completion of recording the evidence submitted by each party before the court, finally the presiding officer of the court gives his judgment. This is the procedure adopted in adversarial system. Likewise under code, section 28 provides that; the court after the case has been heard, shall pronounce the judgment, and such judgment a decree shall follow. Thus section 28 has to be read together with Order 20 Rule 1 and 2 which provide for the pronouncement of the judgment. What is implied in these provisions the court pronounce the judgment after and the judge or magistrate who usually play the role of being passive has heard the evidence of the parties. This is the feature of adversarial principle and their judgment pronounces is on the basis of winner takes all. Further after the winner takes all, the decree holder shall file for the execution of decree under the code Order XXI.
2.2 Observation of the Code In Relation to the Adversarial System
Having seen the reflection of the adversarial system in the code it has to be noted that the court plays a passive role as stated by Biron J, on an appeal originated from the Resident Magistrate of Morogoro in the case of JOHN MAGENDO V. GOVANNI (supra), however he went further to point that the court should not play a total passive role rather it should play assistance role as not to watch the parties making procedural blunders. The court should advice the parties on procedure and what they are supposed to do in order to prove their case.
Although the code is based on the adversarial system of the administration of justice, there has been a judicial modification of the adversarial system in Tanzania to give the court some active roles to play in the cause of hearing a case. The parties still have a choice of the procedural steps. But where it is apparent to the court that one or both parties is unable to proceed properly because of his ignorant or legal illiteracy then it is upon the court to advise that party in a way that, it is one of the methods to guarantee the access of justice in Tanzania.
Further the court also had been given a more active role under Order VIII A of the code; the order introduced some new procedures in our civil litigation that before the case set for hearing under adversarial procedure the court sit as a mediator, in a system which is called Alternative Dispute Resolution. This is alternative to the adversarial system, that instead of adjudication in adversarial system which based on evidence and law, the Alternative Dispute Resolution is held by a mediator instead of a judge. Therefore the code is partly adversarial and partly reconciliatory.
CONCLUSION
Conclusively it could be said that, the civil procedure code, 1966 has reflected the adversarial principles of dispute settlement an applied in England. However some modifications have been made in the code to ensure that it suits our conditions. It should be borne in mind that adversarial system of procedure much assumes legal literacy to the parties involved and that is why they are left to conduct their case alone and the court remains an umpire. This fact when taken in our country it can be seen that the level of legal literacy by the citizens is very low together with the poor economic condition which hinders people to hire advocates made it essential that the code is amended so as to accommodate all persons.
REFERENCES
1. Civil procedure code 1966
2. www.irct.go.tz
3. www.saflii
Citations
[1] Lamwai, R.M, PhD Dissertation, P.6
[2] Article 17 (2) of the Tanganyika Order in Council 1920 (22/7/1920) imported into Tanzania the English common laws the Doctrines of Equity, and statutes of General application.
[3] [1973] LRT n 60
