Answered by: Ally Ramadhani
College: Morogoro Muslim University (MUM)
Programme: Bachelor of Laws (llb)
Year of Study: II
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Qn: You are an advocate for the defendant in a suit in the High Court of Tanzania Land Division at Dar es Salaam for the recovery of possession of land. Discuss what course or courses of action you would take in the following alternatives.
a) The plaintiff has obtained an ex-parte temporary injunction to restrain the defendant from entering or remaining the land in dispute.
b) The plaintiff’s defence to counter claim contain solely evasive denials.
c) On the date fixed for mediation the plaintiff and his advocate are absent.
d) On the date fixed for hearing of the suit the defendant is admitted at the Muhimbili Orthopaedic Institute.
OUTLINE
1.0 INTRODUCTION
2.0 MAIN BODY:
Discussion on the issues
2.0 CONCLUSION
Bibliography
1.0 INTRODUCTION
The question poses different issues to be dealt with by us, as the advocates of the defendant. The following are the summary of the issues to be dealt with in the course of facilitating the defendant to recover the possession of the land in dispute. These issues are extracted from the instances given in the question.
- The action to be taken in the course of advising the defendant where there is ex-parte temporary injunction granted by the court against him.
- The course to be taken as the advocates of the defendant where the plaintiff’s defence to counter claim contain solely evasive denials.
- The course of action to be taken where in mediation both the advocate and the plaintiff are absent.
- The course to be taken as the advocates of the defendant where at the time of hearing the defendant was admitted to the Hospital.
2.0 MAIN BODY:
Discussion on the issues
To start with the first issue where there is ex-parte temporary injunction issued against the defendant, it is better to introduce the key concepts in the issue. The concept of temporary injunction means a judicial process whereby a party is required to do or to refrain from doing any particular act.[1] Temporary injunction is thus an injunction issued during the pendency of proceeding. Mulla states that, an injunction is temporary, for it endures only until the suit is disposed of or until further orders of the court.[2]
From the given question as advocates for the defendant before advancing to the course to be taken as far as ex-parte temporary injunction issued against the defendant, it is better to put into the contemplation on the requirements for an order granting temporary injunction. Pursuant to Order XXXVII of the Civil Procedure Code Cap 33 herein below referred as the CPC, under Rule 1 the conditions are set up on what to be considered when granting temporary injunction. From the provisions it is stated that Order granting temporary injunction will issue if the property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit of or suffering loss of value by reasons of its continued us. Likewise Order XXXVII Rule 1 advances by stating that where the defendant threatens or intends to remove or dispose or his property with a view to defraud his creditors the court may grant temporary injunction to restrain such act.
The law further is to the effects that before granting the temporary injunction the court is duty bound to direct notice of application of the same (injunction) to the opposite party with an exception that if such notice is given will cause undue delay and that the object of granting injunction will be defeated then such notice will not be given to the opposite side[3]. Therefore where the injunction Order is granted by the court without notice to the opposite party then that will be ex-parte temporary injunction.
Though it is necessary and mandatory for the defendant to be given a notice in regard to injunction, the court retains discretionary powers to grant ex-parte temporary injunction. The plaintiff must show cause why notice should be dispensed with, such reason can be given viva voce or by court’s instance. This is supported by the case of IBRAHIM V NGAIZA[4] where the judge stated that the granting of temporary injunction is a matter of discretion of the court and this discretion can be said to have been judiciously exercised if the court appreciated the facts and applied those facts to the principle governing issuance of temporary injunction. One of the principles is that the court should be satisfied that there is the substantial issue that is triable between the parties and that there is the likelihood that the applicant might be entitled to relief and whether the status quo should not be preserved until the dispute is investigated.[5]
In the application for the temporary injunction it is the duty of the applicant to show that the waste that is going to be occasioned is not an ameliorating waste that it is going to injure the property and it is substantial. The case of RICHARD WHEELER V. CLACSTON ALIMAN AND A.C. DOWDEN[6] emphasised on the principle by stating that the waste should not be ameliorating nor trivial, it must be waste of an injurious character. It must be waste of not only of injurious character but also of substantially injurious character and if either the waste be real ameliorating waste that is a proceeding which result in benefit not injury. Then temporary injunction should be granted.
Therefore if the above requirements are not fulfilled then the Order granting injunction can be challenged. From the given question, it is said that the defendant has been restrained from entering or remaining in the land in question, and that the court granted an ex-parte injunction. However with effects to the scenario there has been no reason given which fall in the exception given under Order XXXVII Rule 4 of the CPC which is to the effects that the defendant intended to cause destruction on the land in any way. Likewise the court decision in favour of the plaintiff as far as the ex – parte temporary injunction in the discussed cases revealed that even if it is alleged that there is the likelihood of waste of the property of the plaintiff; that waste must be substantial not ameliorating.
Due to the above facts therefore as the advocates for the defendants the only way to serve the situation is to resort to Order XXXVII Rule 5 of the CPC which is to the effect that;
“Any Order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such Order”.
With the above provision of the law it is seen that the law is very general. The reliance is on the application to set aside the temporary injunction, but in regard to the scenario and the position the defendant there was the issuance of the ex–parte temporary injunction.
This drives us, as the advocates for the defendant to the relevant provision relating setting aside of the Order of ex – parte temporary injunction; the provision which is specific in that respect for our case is the application to set aside ex- parte decree[7] as provided under Order IX Rule 13 of the CPC. In setting a decree or a judgement we shall serve notice to the plaintiff to that regard as the requirement enshrined under Order IX Rule 14 of the CPC. The application will be made as per Order XLIII Rule 2 of the CPC.
In the second part of the question where the plaintiff’s reply to the counter claim contains evasive denials it is better as the advocates for the defendant to start by understanding the concept of counter claim. Counter claim is provided under Order VIII of the CPC, however the code does not define the concept. A counter claim may be defined as a claim made by the defendant in a suit against the plaintiff it means the claim independent of, and separable from, the plaintiff’s claim which can be enforced by a cross action.[8]
A counter claim is a claim brought by the defendant in civil proceedings against plaintiff on a cause of action which arose before the presentation of the written statement of the defence[9]. A counter claim is treated as cross suit and is governed by the rules of pleading as a plaint as laid down in Order VII of the CPC.
From the question given we have been told that, the plaintiffs defence to counter claim contains solely evasive denials. It should be known that under Order VIII Rule 11(2) of the CPC the rule is to the effect that rules relating to a written statement of defence by the defendant shall apply to a reply by the plaintiff or a person joined as a party against who counter claim is made[10]. Thus as advocates for the defendant we shall deal with the provisions relating to written statement of defence.
In regard to a reply to the counter claim as stipulated under Order IX Rule 3, a plaintiff is supposed to deny specifically each allegation of fact which he does not admit the truth. It is further provided that in every allegation if there is no specific denial of allegation of fact in a plaint (counter claim) then such facts will be taken as to have been admitted except where a person is under disability[11].
From the question given we have been told that the plaintiff’s defence to counter claim contains solely evasive denials. Now as provided under Order VIII Rule 4 of the CPC the law is to the effect that the denials from opposite party do not include a vague, routine denial and where a defendant denies an allegation of facts in the plaint, he must not do it evasively, but answers the point of substance. It was held in the case of THORPE V HOLDWORTH[12] that a defendant is bound to deny that any agreement or any terms of arrangement were ever come to, if that is what he means; if he does not mean that, he should say that there were no terms of arrangement come to, except the following terms, and then state what the terms were; otherwise there is no specific denied at all.
From the discussion above it can be said that when the plaintiff makes evasive denials of a claim made against him it will be taken that he has admitted the facts of the counter claim. As advocates of the defendant we will bring it to the knowledge of the court that the claims against the plaintiff have been admitted by the plaintiff. Thus, the provision of Order VIII Rule 4 of the CPC will apply.
In regard to the third question which is to the effect that on the date fixed for mediation the plaintiff and his advocate are absent. As advocate for he defendant we shall resort to Order VIIIA Rule 5 of the CPC which is to the effect that;
“Where a party to a case or the party’s recognised agent or advocate fails without good cause …..to appear at a settlement conference … the court shall make such Orders against the defaulting party, agent or advocate as it deems fit, including an Order for costs, unless there are exceptional circumstances for not making such Orders.”
From this provision as advocates for the defendant we are of the view that the plaintiff has no reasons for non appearance and that the court should make Order such as an Order for the costs incurred by the defendant in conduct of the case and also the Orders to the effect that the suit in mediation should be brought to an end in defendants favour.
The fourth question is on the fact that at the date fixed for hearing the defendant is admitted to the Muhimbili Orthopaedic Institute. The legal system in Tanzania follows an adversarial system of dispute settlement. This system emphasises that, parties are the masters of the procedures in a case because they are presumed to know their case better than any other person. The court remains as an umpire to facilitate the settlement of the dispute. This makes the presence/appearance of parties during the hearing of the case to be essential so as the case can proceed smoothly. In regard to civil matters as provided under Order VIII Rule 15 of the CPC when all the pleadings have been presented before the court, then, the court has to fix a date for hearing of the case.
During the hearing as a general Rule parties are suppose to appear in court either by personal appearance, or through an advocate or through a recognise agent. To ensure that the parties appear before the court then summons to appear must be issued to the respective parties to the suit this is provided for under Order V of the CPC. For the case with the defendant the court at the time of hearing if there is non appearance of the defendant, the court is supposed to inquire as to whether the summons was duly served according to order V and may proceed ex –parte.[13]
The summons would have indicated that in case of non appearance the court would proceed ex – parte. As advocates for the defendant at this instance where there has been non appearance of the defendant and there is ex-parte hearing therein, we have two channels to employ;
The first course is pursuant to order IX rule 7 of the CPC that if there was the adjournment of the hearing of the suit ex-parte by the court and the defendant appears and assigns good cause of his previous non appearance the defendant will be heard in answer to the suit as if he had appeared on the day fixed for his appearance subject to the direction by the court to pay costs or otherwise as the court may decide. Now the defendant being admitted to hospital is the good cause for his previous non appearance thus the court has to take it into consideration by allowing the defendant to proceed with the suit.
In case the ex-parte hearing was concluded the judgement pronounced will be ex-parte judgement. This was defined in the case of MOHI TEXTILE MILLS V DE VOEST[14] to mean a judgement given when there is no appearance by the party against whom it is given. The definition which was given in this case however is subject to qualifications as it covers the plaintiff. The case further defines the phrase ‘a suit called for hearing’ and stated that the suit is called for hearing when it is to be heard for the first time. Therefore the judgement under Order IX rule 13 even if the defendant does not appear is not ex-parte judgement if the defendant appeared at the first hearing.
Back to our situation the defendant was admitted to the hospital, the law is clear that an ex-parte judgement can be set aside if there are sufficient reasons for doing so. For instance in the case of OSANGA V. NABUNGO[15] it was held that ignorance of crucial procedure was sufficient ground to set the judgement aside.
However the rule regarding the appearance of parties is to the effect that, appearance means attendance in person or by an advocate in court on the date stated in the summons which is also the date for hearing of the suit. Once a defendant is present either in person or by advocate when the case is called up that is sufficient appearance.[16] In the case of appearance by an advocate, it has been said that a pleader (advocate) must have been duly instructed and able to answer all material questions relating to the suit otherwise the party can not be said to appear by pleader. At this instance the above stated provisions relating to setting aside of the ex-parte judgement will come into operation.
On the other side as advocates for the defendant, if the case is that we have received all instructions regarding the suit then, though the defendant is admitted to the said hospital, the law is that the presence of an advocate in a court amounts to appearance by a party (Defendant) and thus no consequences for non appearance can follow afterwards. As advocate we can ask the court to adjourn the case in case it is important for him to make a personal appearance before the court.
However the rule which allows the advocates to appear for the defendant and ask for adjournment is not absolute. It has been held in the case of MUKERJEE V MUKERJEE[17] that the fact that an advocate appeared on the first hearing to seek an adjournment was held to be not sufficient ground to set aside an ex-parte decree if after refusing an adjournment he withdraws from the case and thus the defendant is left unpresented and hence no appearing[18]. The same principle is reiterated in the cases of JESSE KIMANI V MC CONNEL & ANOTHER[19]and MOSHI TEXTILE’S Case.
From the above observations as advocates for the defendants we are of the view that the non appearance by the defendant before the court as a result of sickness is a good reason to set-aside the ex-parte judgement if such will be issued by the court on assumption that we had no enough instruction from the defendant. On the other hand assuming that we had received instruction from the defendant the rules governing appearance by advocate will come into operation accordingly.
CONCLUSION
Therefore from the discussion above, as advocates of the defendant on a suit in the high court involving the recovery of the land by the defendant, we are of the view that such recovery can be achieved by following procedures and laws, depending on the circumstance given in the question. That, the courses of action to be taken will depend on the respective instance at a time and also on the circumstances of each particular case. In our opinion the knowledge of law and procedure is a tool towards the attainment of justice.
#qn
[1] C.T. Takwani (2004) Civil Procedure p 229
[2] V.K.Gupta (2004 )Mulla Code of Civil Procedure p1584
[3] Order XXXVII Rule 4 of the CPC.
[4] (1971) HCD 249
[5] The same view is stated in the case of ALLOYS ANTHONY DOWE V ALLY JUYAWATU (1969) HCD 268
[6] (1978) 3A.C 709 at 724.
[7] Decree is defined under section 3 of the CPC to mean formal expression of an adjudication which, so far as regards the court expressing it conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary of final and shall be deemed to include the rejection of a plaint in the determination of any question within section 38 or section 89 but shall not include a) an adjudication which an appeal lies as an appeal from an Order or b) any Order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. (Underscoring is ours)
[8] Takwani, Op.cit p 184 referring Concise Oxford Dictionary 1995 p 306
[9] OrderVIII Rule 9 of the CPC
[10] Order VIII Rule 11(2)
[11] Order VIII Rule 5 ibid
[12] (1876) 3 CD637
[13] B.D.Chipeta, (2002) Civil Procedure in Tanzania: A Student’s Manual, p 126
[14] [1975] LRT No 17
[15] (1965) E.A384
[16] B.D.Chipeta op cit p. 121 -122. see also Gupta op cit p 919 - 920
[17] (1907) 34
[18] Gupta loc cit
[19] (1966) EA 547
