LEGUSC LAWS

Corporate governance is most often viewed as both the structure and the relationships which determine corporate direction and performance. The board of directors is typically central to corporate governance. Its relationship to the other primary participants, typically shareholders and management, is critical. Additional participants include employees, customers, suppliers, and creditors. The corporate governance framework also depends on the legal, regulatory, institutional and ethical environment of the community. Whereas the 20th century might be viewed as the age of management, the early 21st century is predicted to be more focused on governance. Both terms address control of corporations but governance has always required an examination of underlying purpose and legitimacy. - - James McRitchie, 8/1999

Corporate governance is a field in economics that investigates how to secure/motivate efficient management of corporations by the use of incentive mechanisms, such as contracts, organizational designs and legislation. This is often limited to the question of improving financial performance, for example, how the corporate owners can secure/motivate that the corporate managers will deliver a competitive rate of return. (Mathiesen, 2002)

The system by which companies are directed and controlled. (Sir Adrian Cadbury, The Committee on the Financial Aspects of Corporate Governance)

"Corporate Governance is concerned with holding the balance between economic and social goals and between individual and communal goals. The corporate governance framework is there to encourage the efficient use of resources and equally to require accountability for the stewardship of those resources. The aim is to align as nearly as possible the interests of individuals, corporations and society" (Sir Adrian Cadbury in 'Global Corporate Governance Forum', World Bank, 2000)

The process by which corporations are made responsive to the rights and wishes of stakeholders. (Demb and Neubauer, The Corporate Board: Confronting the Paradoxes)

Corporate governance is about how companies are directed and controlled. Good governance is an essential ingredient in corporate success and sustainable economic growth. Research in governance requires an interdisciplinary analysis, drawing above all on economics and law, and a close understanding of modern business practice of the kind which comes from detailed empirical studies in a range of national systems. - Simon Deakin, Robert Monks Professor of Corporate Governance

Corporate governance is what you do with something after you acquire it. It's really that simple. Most mammals do it. (Care for their property.) Unless they own stock. [She continues:] ... it is almost comical to suggest that corporate governance is a new or complex or scary idea. When people own property they care for it: corporate governance simply means caring for property in the corporate setting. - Sarah Teslik, former Executive Director of the Council of Institutional Investors

Corporate governance describes all the influences affecting the institutional processes, including those for appointing the controllers and/or regulators, involved in organizing the production and sale of goods and services. Described in this way, corporate governance includes all types of firms whether or not they are incorporated under civil law. - Shann Turnbull

Corporate governance is about "the whole set of legal, cultural, and institutional arrangements that determine what public corporations can do, who controls them, how that control is exercised, and how the risks and return from the activities they undertake are allocated." - Margaret Blair, Ownership and Control: Rethinking Corporate Governance for the Twenty-First Century , 1995.

Corporate governance is the relationship among various participants [chief executive officer, management, shareholders, employees] in determining the direction and performance of corporations" - Monks and Minow, Corporate Governance, 1995.

Corporate governance deals with the way suppliers of finance assure themselves of getting a return on their investment. - Shleifer and Vishny, 1997

Corporate governance is about how suppliers of capital get managers to return profits, make sure managers do not misuse the capital by investing in bad projects, and how shareholders and creditors monitor managers. - American Management Association

Corporate governance is the relationship between corporate managers, directors and the providers of equity, people and institutions who save and invest their capital to earn a return. It ensures that the board of directors is accountable for the pursuit of corporate objectives and that the corporation itself conforms to the law and regulations. - International Chamber of Commerce

The relationship between the shareholders, directors and management of a company, as defined by the corporate charter, bylaws, formal policy and rule of law. - The Corporate Library

Corporate governance is the relationship among various participants in determining the direction and performance of corporations. The primary participants are: shareholders; company management (led by the chief executive officer); and the board of directors. - CalPERS

Corporate governance is the method by which a corporation is directed, administered or controlled. Corporate governance includes the laws and customs affecting that direction, as well as the goals for which the corporation is governed. The principal participants are the shareholders, management and the board of directors. Other participants include regulators, employees, suppliers, partners, customers, constituents (for elected bodies) and the general community. - Wikipedia

The set of obligations and decision-making structures that shape 'the complex set of constraints that determine the profits generated by the firm and shape the exp post bargaining over those profits. - Stijn Claessens

Where the political scene is capital versus labor, "the investor coalition defined corporate governance in terms of 'meeting the challenge of financial globalization,' adherence to the OECD Principles, fulfilling 'international standards of governance in the global competition for capital.'"

From a labor power position, "blockholders and foreign portfolio investors were castigated as selfish oligarch in league with the heartless IMF and the faceless gnomes of Zurich."

Those favoring the corporatist compromise made much of managers and workers "being in the 'same boat' together, of corporate governance choices that ensured that firms 'served the nation' in a 'stable' economy - with owners dismissed as oligarchs or 'speculators.'"

Countries shifting transparency coalitions and managerism alignment "witnessed predictable invocations of corporate governance that protected 'the little guy, ' the individual investor,' the widow and orphans," such as speeches by U.S. SEC commissioners.

"Meanwhile across the alignment divide, managers compete to hijack the notion of corporate governance for their own purpose...'building shareholder value."

As Gourvevitch and Shinn, quoted in the above several paragraphs, note in their book Political Power and Corporate Control: The New Global Politics of Corporate Governance:

"Corporate governance - the authority structure of a firm - lies at the heart of the most important issues of society"… such as "who has claim to the cash flow of the firm, who has a say in its strategy and its allocation of resources." The corporate governance framework shapes corporate efficiency, employment stability, retirement security, and the endowments of orphanages, hospitals, and universities. "It creates the temptations for cheating and the rewards for honesty, inside the firm and more generally in the body politic." It "influences social mobility, stability and fluidity… It is no wonder then, that corporate governance provokes conflict. Anything so important will be fought over… like other decisions about authority, corporate governance structures are fundamentally the result of political decisions."

"Shareholder value is partly about efficiency. But there are serious issues of distribution at stake - job security, income inequality, social welfare. There may be many ways to organize an efficient firm."

Corporate governance refers to how a corporation is governed. Who has the authority to make decisions for a corporation within what guidelines? This is the corporation's governance. In the United States, the governance of corporations is largely determined by state laws of incorporation. State laws typically say that each corporation must be "managed by or under the direction of its boards of directors." More specifically, corporate boards of directors are responsible for certain decisions on behalf of the corporation. At a minimum, as stated in most state statutes of incorporation, director approval is usually required for amending corporation bylaws, issuing shares, or declaring dividends. Also, the board alone can recommend that shareholders vote to amend articles of incorporation, dissolve the corporation, or sell the corporation. No other person or entity except the board can take these actions. That is why discussions of "corporate governance" often focus on boards. For more on basic corporate governance, see A Practical Guide, NACD. For a guide to the role of a director, see Report of the NACD Blue Ribbon Commission on Director Professionalism. (NACD, 2005)

"Corporate governance is not an abstract goal, but exists to serve corporate purposes by providing a structure within which stockholders, directors and management can pursue most effectively the objectives of the corporation." - US Business Round Table White Paper on Corporate Governance September 1997

Corporate governance by definition rests with the conduct of the board of directors, who are chosen on behalf of the shareholders. - Corporate Governance Forum of Japan 1997

The in which a company organizes and manages itself to ensure that all financial stakeholders receive their fair share of a company's earnings and assets. Standard and Poor's

Corporate governance is the system by which companies are directed and managed. It influences how the objectives of the company are set and achieved, how risk is monitored and assessed, and how performance is optimised. Good corporate governance structures encourage companies to create value (through enterpreneurism, innovation, development and exploration) and provide accountability and control systems commensurate with the risks involved. (ASX Principles of Good Corporate Governance and Best Practices Recommendations, 2003)

Corporate governance is the process carried out by the board of directors, and its related committees, on behalf of and for the benefit of the company's stakeholders, to provide direction, authority, and oversights to management. (Paul J. Sobel, Auditor's Risk Management Guide: Integrating Auditing And Erm 2005)

COMPANY LAW

THE CORPORATE VEIL

WHEN CAN THE COURTS LIFT THE VEIL?

1. The Court is entitled to pierce the corporate veil if the company has been used as a device or façade to conceal the true facts , thereby avoiding or concealing any liability of a specific individual.

a).       Trustor AB Versus Smallbone and Others No.2 [2001] 3        All E.R 987.

b).       Re H and  ( restraint Order: realisable property) [1996]2 All E.R  391.

2. If a person suffers loss as a result of the negligent advice given to him by the company, where he had assumed personal responsibility for the advice and the person had relied on the assumption of responsibility.

William & Another versus Natural Life Health Foods Limited and Another 1998 2 All E.R 577

Whether a Company is unlimited or limited, and if limited, whether by shares or by guarantee, if at any time the number of its members is reduced, in the case of a private company below 2, or in the case of any other company below seven, and it carries on business for more than six months while the number is so reduced, every person who is a member of the Company during the time that it so carries on business after those six months, and is cognisant of the fact that it is doing so is severally liable for the payment of the whole of the debts of the company contracted during that time, and may be severally sued for it.

1. Halsbury's Laws of England 4^th Edition Vol.7 page 184
2. 33 Companies Act. Cap 486 of the Laws of Kenya

4. A past member of an unlimited liability company which registers as a limited liability Company who was a member at the time of registration is liable to contribute to the assets of the Company in respect of its debts and liabilities contracted before that time if a winding up commences within three years of such registration.

Halsbury's Laws of England 4^th Ed. Vol 7 page 185.

5. When a company with contingent liability transfers its assets to another company which continues its business under the same trade name, the Court would lift the veil in order to allow a person claiming against the first company to proceed against the second Company.

Creasy vs Breachwood Motors Ltd (1992) Times, 29 July (Queens Bench Division: R Southwell QC)

• When a director, other officers or an employee of a company has committed or participated in, the act constituting a tort or else has directly procured the tortuous act to be done by others and therefore personally liable for the company's tort.

MCA Records Inc vs Charly Records Ltd [2000] EMLR 743

• In case of mis-statement in the prospectus of a company, the following people shall be held liable to pay compensation to all persons who subscribed for any share or Debenture on the faith of the prospectus and incur loss or damage as a result of the mis-statement therein.

1. Every person who is a director of the Company at the time of the issue of the prospectus
2. Every person being a promoter of the Company a
3. Every person who authorised the issue of the prospectus.

S.45 and 46 of the Companies Act Cap. 486 of the Laws of Kenya

8. Where there is an irregular allotment of shares procured by a director of a company in contravention of SS 49 and 50 of the Companies Act. The director shall personally compensate the aggrieved party.

486. 51(2) Companies Act Cap. 486.

9. In determining whether two claims are so closely connected as to be , in the substance , claims in respect of the same debt, the Court may look at the legal substance of the relevant transaction and not the economic substance, if different.

Re Polly Peck International plc (In administration) [1996]2 All E.R 433

HIGH COURT DIGEST 1969

Peter John v. Richard Barongo, [1969] HCD 19

(PC) Civ. App. 202-M-68, 8/1/69

Bramble J.

Disinheritance of beneficiary – Beneficiary cannot challenge.

Disinheritance of customary heir – Heir may challenge.

Distribution of "the big house", the Nyaruju – Haya law.

Promise to make person heir in return for gifts – Contract

Herman, by his will in 1953, made the respondent a beneficiary provided that the latter looked after his needs. The respondent spent Shs. 6,280/50 up to 1967, when Herman changed his will in favour of the appellant because he claimed the respondent did not build a new house for him. The lower courts thought that a will is "property" for they held "according to customary law nobody can be deprived of a property for which he has offered 'appropriation gifts' even if he has done something to his father," and since the respondent had paid 'appropriation gifts', he was entitled to the will.

Held:

(1) A customary heir may challenge a will if he is disinherited by a testator who is alive. But this cannot be done by an ordinary beneficiary and neither the respondent nor the appellant was a customary heir. Herman then was free to revoke his will.

(2) "The true position between the respondent and Herman is that on the basis of a promise to make the former heir to a shamba he has spent monies in the interest of Herman …. The true nature of the claim was a claim for damages for breach of contract".

Constantine Bulagile v. Bi. Genereza Mashakala [1969] HCD 20

(PC) Civ. App. 103-D-67, 21/11/68,

Georges C. J.

Women – May not inherit immovable – Haya law

The dispute in this case concerned the ownership of a shamba which belonged to one Mashakala, now deceased. The respondent alleged that she was an illegitimate daughter of the deceased, acknowledged by him, accepted in the family and declared by him in a written will as his heir to the property. However, the document purporting to be a will was not produced in court and no explanation was given as to what had happened to it. The appellant on the other hand denied that the respondent was the daughter of the deceased and contends that he was the deceased's nephew and was appointed by him as his heir before his death. It was not disputed that the respondent's mother was married to one Rubeshelwa when the respondent was conceived and born. Her witnesses however testified that she was daughter of the deceased, Mashakala, who was first cousin of the respondent's mother – within the prohibited degree of consanguinity according to Haya customary law. The respondent's mother died when she was very young and her aunt looked after her and later took her to her father, Mashakala, who paid Shs. 50/- for her clothes and kept her till her marriage. On the question of the legitimacy of the respondent, the Primary Court quoted s. 181, (a) and (b), Declaration of Customary Law of Persons, and held that none of the methods of legitimating a child there set out had been followed. The District Court, however, reversed this and held that the respondent had been legitimated under Haya custom by the payment of Shs. 50/- by her father to hr aunt. Both lower courts applied the law of Inheritance under G.N.436/63.

Held

(1) Section 181, Declaration of Customary law of Persons, could not be applicable to a legitimation which must have taken place in 1944 or thereabouts. Hay Customary law was applicable and therefore the respondent as legitimated by the payment of Shs. 50/- by her father to her aunt, which was according to Haya customary law.

(2) Questions of succession to the estate of the deceased and the validity of his will can only be decided by the law as it was at the time of his death, i.e. Haya customary law before the Declaration. According to section 28 of Cory and Hartnoll, "should a man name in his last will a female as heiress of his immoveable property, even with the consent of the witnesses, such a testament would be considered void".

(3) Even if (2) above is ignored, the will was not sufficiently proved. It was not produce in court and the witnesses to its execution are interested parties. Moreover the only partly independent witness did not sign as a witness.

(4) The choice of the appellants' heir was supported by two independent witnesses who had nothing to gain by supporting it. Appeal allowed.

In the matter of Antonio Natalicchio, [1969] HCD 142

Prob. And Admin. Cause 64-D-65, 9/4/69

Hamlyn J.

Wills – References to money held in specific bank accounts cannot be construed as applying to money in other bank accounts.

"The testator, Antonio Natalicchio of Morogoro, died in that town on 26^th July, 1965 having some five years before his death executed two wills. He adopted this mode of disposing of his estate as he had, at the time that the wills were drawn, two separate bank accounts, one being in the Standard Bank, Dar es Salaam and the other in Barclay's Bank, Dar es Salaam. Each will dealt with a separate account and save for this and for a divergence which appears later, the two wills were identical; both were executed on the same date and disposed of his property in such accounts in the same manner. Subsequent to the execution of he wills and at some time during the five years thereafter which preceded his death, the testator opened a further account, a savings-account in the Standard Bank, Morogoro, which now has a credit balance of Shs. 593/75. On 17^th July, 1964, he also made a payment to the same bank as a fixed deposit account, which presently has a sum of Shs. 9,000/- as a credit to the estate. Neither of these two latter accounts is mentioned in the two wills. The dare s Salaam account in the standard Bank was subsequently closed by the testator, who deposited the proceeds in a current account in the same bank; this he drew upon during his life-time until the credit was exhausted and the account was finally closed. The Barclay's Bank account was also closed by the testator, who transferred all the monies there in to the Standard Bank current account, but thereafter placed the money so transferred on fixed deposit in the same bank. At the date of his death therefore, the testator had in his name the two Morogoro accounts and also the Standard Bank, Dar es Salaam fixed –deposit account. The learned Administrator General, who seeks the directions of his court in this matter, has drawn my attention to one matter which raises a difficulty in respect of the deposit account in the Standard bank, Dar es Salaam. The two wills of the deceased, as I have noted earlier, are not completely identical …. The Barclay's Bank will (if I may thus speak of it) deals with "all money, interest and property now held by me on Barclay's Bank, Dar es Salaam and all money, interest and property that shall be my due in the future in the aforesaid bank". …. The Standard Bank will (to use a similar convenient phrase) specified "all money, interest and property now held by me in the standard Bank, Dar es Salaam and all interest that shall be my due in the future in the aforesaid bank. That is, the testator has seen fit to deal with all future "money, interest and property"  in Barclay's Bank, Dar es Salaam, while in the case of the Standard Bank, Dar es Salaam he has referred only to future interest. As a result of the testator's financial transactions prior to his death, the dare s Salaam Barclay's Bank account has ceased to exist and the Administrator General now seeks directions as to the monies lying in the two Standard Bank Morogoro accounts and also the principal money on fixed deposit in the Standard Bank, Dar es Salaam; interest in respect of the letter account is already the subject of the Standard Bank will".

Held:

(1) "Now in so far as the Morogoro monies are concerned, both wills are entirely silent, for these accounts were brought into existence after the two wills were executed. Section 24 of the English Wills Act, 1837 reads: "Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will". I do not think that any doubt can exist but that the English Act applies in matters of this sort and Section 2(2) of the Judicature and application of Laws Ordinance, 1961 appears to govern the matter. It is clear that when the wills speak of money, interest and property in the two Dar es Salaam Banks, those expressions cannot have reference to the Morogoro accounts. It is immaterial that, at the date of the execution of the wills, there was money deposited to which the expressions would have reference. It is also immaterial that the testator before his death may have transferred monies from one of the Dar es Salaam accounts to Morogoro. Re. Gillins: Inglis v. Gilins (1909) 1 Ch. 345 makes it clear that interpretation of the wills must be as at the date of the death of the testator and not otherwise. And as Wood V.C., in Goodlad v. Burnett 6 (I.K. & K. 341) observed, "Testator must be taken to know the wills Act." The wills are not sufficient to pass the new thin which the testator acquired and there is ad emption – Lane: Loard v. Lane (1880) 14 Ch. D. 856. The test is as to whether the property at the date of the death is "substantially the some thing " as that spoken of in the will. I do not think that by any stretch of imagination could monies lying in the Dar es Salaam Bank be retrograded as substantially the some as other monies lying in the Morogoro Bank. While a bequest of money is ordinarily a general legacy, it may be specific and the fact that in the instant case the particular accounts were referred as being liable for the payments would appear to render the legacies specific ones. There are, it is true, conflicting decisions on this class of gift, but he circumstances and wording of the two wills do not enable me to hold that the testator, having made clear general gifts, merely pointed out particular funds which would be primarily liable, on failure of which the general personal estate would remain liable. I consequently find that the Morogoro account cannot be utilized as a source of payment of the Dar es Salaam bequests".

(2) "In so far as the Standard Bank deposit account is concerned, the will concerned bequeaths future interest only and not future principal. The testator in that document spoke of "all money, interest and property now held by me in the Standard Bank, Dar es Salaam and all interest that shall be my due in the future in the aforesaid Bank". While the introduction of the word "now" into a testamentary document has never been construed so as to produce an intestacy, the circumstances of the present case are somewhat different from the run of English decisions, for the testator here uses the word in respect of property which has wholly ceased to exist and was subsequently replaced by other property from a different source, while the future property concerns interest only. The bequest as to the principal amount fails under the will and any interest that may have accrued in the Dar es Salaam Standard Bank savings account will pass under the legacy in the Standard Bank will."

Jackson Lesirango v. Pantaleo KirboI [1969] HCD 277

(PC) Civ. App. 108-D-67, 26/8/69,

Georges, C. J.

Intestacy – Women's rights to inherit land – Chagga law

The plaintiff, a schoolboy of 14 years, sued the defendant in respect to a piece of land in Kilimanjaro district, which defendant planned to sell, but which plaintiff claimed as his own.

Both parties claimed to have inherited the land from a certain deceased person, who was the full brother of the defendant, and also the father of the defendant, and also the father of the plaintiff's mother.

Held:

(1) "I am not aware what the present practice is but would rule that in cases where it is necessary for a young child of that age to sue in order to protect a legal right, or where it may be necessary to sue him in order to do so, his legal guardian should sue or e sued as the representative of the child."

(2) The defendant was successful before the District Magistrate who held that it was clear law that if there were males in the clan, widows could not inherit or give away land belonging to the clan …….. The burden of the plaintiff's complaint in the memorandum of appeal was that the defendant had not behaved properly towards the deceased …… This does not, in m view, affect the validity of the argument advanced by the District Magistrate that a widow cannot inherit clan land when there are male relatives of the clan eligible to inherit."

(3) Appeal dismissed.

Re Innocent Mbilinyi 1969 [HCD] 283

Deceased. Prob. & Ad. 50-D-68; 31/10/69;

Georges C.J.

Conflict of laws – Rejection of Chagga law by deceased

The Administrator General applied for directions concerning question which have arisen in the course of the administration of the estate of Innocent Mbilinyi deceased. The affidavit in support states out that the deceased, a Roman Catholic by religion and Mngoni by tribe, died in an accident on 29^th February 1968. Surviving him were his widow Elizabeth whom he married by Christian rites, three infant children of the marriage, his father, his mother, four brothers and five sisters. The deceased died intestate and accordingly the succession to his prop could be determined either by the customary law of the Wangoni as set out in the Customary Law Declaration G.N. No. 436 of 1963 or according to the law applicable o Christians who die domiciled in Tanzania, that is to say the Indian Succession Act. The widow, through her advocate contends that the Indian Succession Act is applicable while the father and the brothers and sisters state that customary law is applicable. Leave was given to the widow and to the brother Hustiene to file affidavits setting out facts from which the mode of living of the deceased could be inferred. The widow has filed an affidavit. Despite several adjournments to enable him to do so no affidavit has been filed by Hustiene or by any of the brothers and sisters. The widow is a Mchagga by tribe and also a Roman Catholic. She says that she had learned from her husband that he had left Songea when he was about 7 years old and had been educated entirely outside the Region. In or about the year 1956 he went to Makerere College where he graduated as Bachelor of Arts in 1960. In 1961 he took up employment with Shell E.A. Ltd. as a salesman and after training was stationed in Moshi. That very year he was transferred to Dar es Salaam where he met her. In March 1962 they were married and thereafter lived in Mbeya and Moshi. In 1964 the deceased joined Government service and was in 1967 promoted Deputy Director of the State Lottery. She avers that the fact that the deceased and herself were of different tribes helped to separate both of them from their tribal backgrounds. The elders of both of them from their tribal backgrounds. The elders of both tribes appeared to disapprove of the attachment and the subsequent marriage. She states that the deceased had very often expressed his happiness at the fact that they were both Christians and had made it clear that he did not wish  to have any of his affairs regulated by customary law. She had visited her husband's family once in 1962 and she describes her reception as cool if not actually unfriendly. They visited again in 1964. Apart from these visits she was not aware that there had been any contacts between the deceased and his relatives. As far as she was concerned the deceased relatives were strangers. Neither during the lifetime of the deceased nor after his death had they ever visited her nor had they ever brought gifts for the children or attempted in any way to win their affections. She states also that the deceased had told her that he had made her the beneficiary under two policies of insurance on his life. Those policies are the principal assets in the estate. Neither policy was in fact ever assigned to the widow, but in one of the policies the deceased names her in the application form as his proposed beneficiary.

Held:

"On these facts which are in no way contraverted I am satisfied that it can be said that the deceased had abandoned the customary way of life in favour of what may be called a Christian and non-traditional way. There is satisfactory evidence that he was to a large extent alienated from his family and that his children had no connection whatever with them. Accordingly I would direct that the law to be applied in the administration of the estate of the deceased should be Indian Succession Act."

Re Robert William  Stafford Bird, deceased. [1969] HCD 297

Prob. & Ad. Cause 12-A-69; 13/10/69;

Platt J.

Probate – Verification by witness of petition for probate dispensed with under s. 57 of Probate and Administration Ordinance Cap. 445.

Wills Construction – Reference to "my wife" sufficient to indicate wife subsequently divorced and remarried

An application was made for grant of probate to Margaret Fox formerly Margaret Bird, of the will of Robert William Stafford Bird. The will was dated 26^th June 1951 and was properly signed and attested under clause 3 of the will, the testator provided as follows: - "If my wide Margaret Bird shall be living at the expiration of seven clear days (excluding the day of my death after my death I gibe her absolutely all my property of whatsoever kind and whosesoever situated and appoint her my sole executrix" [sic]. Clause 4 continued: - "If my said wife shall not be living at the expiration of the period aforesaid then the following provisions shall take effect". In the next paragraph, the testator appointed his sister and the brother of Margaret Bird to be executors and trustees of his will and guardian of his infant children and each executor, who should act, was given a legacy. The testator then bequeathed all his real and personal property, to the trustees upon trust for sale, to divide his residuary estate amongst his children living at the time of his death and his grand-children on certain terms. In September 1962, the testator and Margaret Bird were divorced. Margaret Bird later remarried.

Held:

(1) "The application involves two questions. The first is whether Margaret Fox having divorced the testator, is still entitled under the will to all the testator's property and to be appointed his sole executrix. Secondly, there is an application for dispensation with the verification of the petition for probate by one attesting witness of the will of the deceased Therefore, so long as Margaret Bird was living after the period specified in Clause 3, she was entitled to all the testator's property and to be appointed his sole executrix.

(2) "The question then is whether the reference to "my wife Margaret Bird" is a sufficient and suitable reference to Margaret Fox so as to entitle her to the property of the testator and to be appointed executrix. The will did not envisage the situation which might arise if the testator should divorce his wife Margaret Bird. The only condition to her receiving all the property and being appointed executrix was that she should be living at the time of the testator's death. Bur it might be thought that she must be his wife and that as she was not his wife at the time of his death, she must be excluded from the will as the testator's wife at the time that the will was made, and the testator having possession of the will and having made one alteration due to the death of his mother, must be taken to have intended that Margaret Bird was still to be entitled under Clause 3 of the will. No East African authority could be discovered, but he referred the court to Jarmans on Wills 8^th Ed. Vol. 2, p. 1239, from which it would appear that a divorce does not ipso facto revoke the will. He also referred to Halsbury Vol. 34, where in dealing with the voluntary revocation of wills, the learned author sets out the only events in which such revocation would be effected (See paragraph 107 of 2^nd Ed. Or Vol. 39, 3^rd Ed. Para 1354) Nothing is stated as to divorce.

The most useful authority quoted would appear to be In re Boddington, Boddington v. Clariat (1883) 22 Ch. D. p. 597, in which the testator by his will gave the proceeds of the sale of his residuary estate to trustees on trust to pay his wife Emily Caroline within one month after his decease, a legacy of  ₤300, commencing from the date of his deceased, "or otherwise in lieu and in substitution of the said annuity, at the option of my said wife, if she shall prefer it, a legacy of  ₤2000." After the date of the will, the marriage was declared null on the ground of the impotency of the testator. The latter died without altering his will. It was held that the former wife was entitled to the legacy of ₤200, but that she could not claim the annuity, inasmuch as she never had been in law the wife of the testator and never could be or continue his widow. The annuity was therefore given for a period which could never come into existence. Fry, J….. explanted that there was no doubt about the identity of the person named in the will, since the misdescription could not be of importance, and that although she was described in the will as the testator's wife, which she was not at the time of his death and in law never had been, nevertheless, she was prima facie entitled to the legacy of ₤200. The learned Judge went on to consider the authorities, but held that here being no false assumption by the lady of the character of a wife, she was entitled to that legacy. At he same time, he refused to grant her the annuity because she could not properly be described as having been his widow. As far as the legacy of ₤200 is concerned, there is no material difference between the facts in Boddingtons's case and the instant case. It is true that Margaret Bird has remarried, but I cannot see that that can make any difference. Accordingly I am satisfied that Margaret Fox is the identical person to Margaret Bird, who was described by the testator as his wife, as indeed she ten was. As the testator did not alter his will, and as the divorce did not operate as a voluntary revocation, Margaret Fox is entitled. Under Clause 3, to the testator's property and to be appointed his sole executrix. By way of strengthen the position; learned Counsel adduced the consents of the two children of the marriage to Margaret Fox being granted probate. I am also told that the two other executors have both deceased.

(3) As to the second question, there is provision in section 57 of the Probate and Administration Ordinance Cap. 445 giving the court power to dispense "with verification by a witness where it is satisfied that it cannot be obtained, in that it cannot be obtained without undue delay or expense"…… Accordingly I grant the application for the dispensation with the verification as generally required by section 57 of the Ordinance." (4) "In the result, probate is granted to Margaret Fox of the will of the testator Robert William Stafford Bird."

HIGH COURT DIGEST [1972]

Abdallah Shant v. Mussa [1972] HCD 9

(PC) Civ. App. 123-D-70; 20/1/72

Onyiuke, J.

The appellant and respondent, African Moslems, were married according to Islamic Law. The marriage ended by divorce by talk 18 years after solemnization. After the divorce the respondent filed a suit in the Primary Court claiming Shs. 3,300/= as representing her contribution to the costs of erecting two houses and a but during the subsistence of the marriage. The respondent's case was that shortly after their marriage the appellant who was then working as a house-boy for a certain expatriate found her a job as a yaya with the same employer. It was agreed between them that the appellant was to take her wages as her contribution to the building of some houses. It was part of the agreement that one of the houses would eventually be given to her. On the basis of the agreement the appellant received her wages for the whole period of her employment and built two houses. When the expatriate left they went to live in Bagamoyo where the respondent's relatives gave them a piece of land on which they cultivated rice. They used the proceeds of the sale of the rice to build yet a third house. When the marriage broke up the appellant refused to give her any of the houses. The appellant disputed the claim. He admitted that the respondent was employed as she alleged but denied receiving her wages and that there was any partnership or arrangement between them. The primary court magistrate concurred with the assessors that there was not sufficient evidence for a finding of partnership and held that the respondent could not simply allege partnership by virtue of being the appellant's wife. On appeal to the district court the magistrate set aside the decision and awarded the respondent the amount claimed. He disagreed with the findings of the assessors and held that the respondent's story was consistent and held that the respondent's story was consistent and was sufficient to support her claim. In making his order he relied on the English case of Balfour v. Balfour [1919] K. B. 521. He stated that that case established the principle that contracts between husband and wife were enforceable if they were intended to have legal consequences. In the High Court counsel for The appellant conceded that the respondent did contribute but argued that since this was an appeal from a primary court the law to be applied was either Moslem law or customary law. He submitted that the district magistrate was wrong to apply English law.

Held:

(1) "I agree … that the proper law applicable to the case was customary law or Islamic law and that it was wrong for the District Magistrate to import the principle of English law."

(2) "I am of the view however that the District Magistrate's conclusions were fully justified on the basis of customary law and/or Islamic law. That Islamic laws as well as Customary Law are equally applicable to Africans converted to Islam is fully established by the decisions in Hussein Mbwana v. Amiri Chongwe (Tanzania High court Civil Appeal No. 1 of 1969) and Re. Kusudwa [1965] E. A. 248. In the latter case Sir Ralph Windham C. J. stated as follows:- "The fact that a tribe may have been converted to Islam does not necessarily mean that its customs, particularly those relating to land tenure are thereby changed." In the former case Spry J. (as he then was) made the following observations: - "It has sometimes been argued that Islamic law is to be regarded as applying to Africans as part of their customary law. In my view this is not a sound proposition. Customary law is the body of customs which b usage has acquired the force of law. As such it is constantly changing with changing ways of life. It cannot therefore, in my view include a complete and fully developed system of Religious law. Some elements of Religious law may, of course, be absorbed into the customary law but they are then to be judged and are subject to change as part of the customary law and they lose the attributes of the Religious law from which they were derived. I hold therefore that there are two systems or law which may apply in an African Muslim Community, Religious law in matters personal, such as marriage, and customary law which may apply in all spheres of life."

(3) "The District Magistrate was therefore not strictly correct when he held, in effect, that Islamic law was exclusively to be applied to the case before him. There can be no doubt that a contract such as the on under consideration is enforceable under Customary law. Even under Islamic law a Muslim wife is not obliged to provide anything for household expenses, a Muslim wife's wages are her personal property and there is nothing, in principle, to invalidate or to prevent the enforcement of an arrangement such as the present one under Islamic law."

(4) "The District Magistrate was fully justified in his finding on the fact. The reasons given by the Primary Court for dismissing the respondent's claim were unsound."

(5) Appeal dismissed.

TANZANIA LAW REPORTS [1983-1997]

CELESTINA PAULO v MOHAMED HUSSEIN 1983 TLR 291 (HC)

Court     High Court of Tanzania - Bukoba

Judge    Mushi .J

September 5, 1985

CIVIL APPEAL 223 OF 1982

Fly note

Probate and Administration - Religion - Whether the difference of religion can affect an ascertained will in appointing an administrator of an estate.

Probate and Administration - Clan linkage - Whether the difference in clan linkage can prevent a person from administering the property of a deceased person of another clan.

Head note

The appellant appealed against the decision of the District Court of Bukoba which reversed the decision of the Primary Court which appointed the appellant the administrator of the estate of Sawia d/o Balegu on the basis of oral evidence and a written will.  The District Court had reversed the Primary Court's decision purportedly because the appellant was of different religion and clan from that of the deceased.

Held:

(i)            Where there is an ascertained will the same must be respected in letter and spirit notwithstanding the difference of religion between the deceased and the appointed administrator;

(ii)          where personal property is bequeathed the person bequeathing the property has an absolute right to choose an administrator of her own choice and the clan has no right to interfere with the same.

Appeal allowed.

HASSAN MATOLLA v KADHI WA MSIKITI, MWINYI MKUU STREET 1985 TLR 53 (HC)

Court     High Court of Tanzania - Dar Es Salaam

Judge    Ruhumbika J

21 October, 1982

(PC) CIVIL APPEAL 2 OF 1982

Fly note

Islamic Law - Inheritance - "Wakf" dedicating deceased's house to the Mosques for religious reasons - "Wakf" conditional upon failure of deceased's daughter coming forward to inherit -Deceased's daughter did not show up - Deceased's brother's son claimed to be a rightful heir -Whether the mosque is entitled to any share in the property of the deceased.

Head note

The deceased, a father of only one child who was living outside the country, dedicated by "Wakf" his house to a mosque for religious reasons.  The "wakf" was given conditional upon failure of the deceased's daughter coming forward to claim inheritance.  After his death the daughter did not show up.  However, a son of the deceased's brother applied in a Primary Court for and was granted letters of administration of the estate of the deceased.  He also claimed the right to inherit the house of the deceased.  The Primary Court decided that he was entitled to inherit the estate of the deceased as heir under Islamic Law.  The Court, however, required him to cash down 23,330/= to the mosque in terms of the "Wakf", being 1/3 of the value of the house.  The appellant appealed against the court's order that the appellant should pay Shs.23,330/= to the mosque before he could inherit the house.

Held: 

(i)            The appellant has the right to inherit the house and the dedication of the house to the mosque in the "Wakf" is rendered non-effective thenceforth by the reason of the act of the appellant inheriting the house;

(ii)           the requirement to pay 1/3 of the value of the house to the mosque would arise only if the deceased had set up an unconditional "Wakf" dedicating the house to the mosque permanently after his death without the clause that the house should pass to the heir when that heir was available.

Appeal allowed.

SEIF MARARE v  MWADAWA SALUM 1985 TLR 253 (HC)

Court     High Court of Tanzania - Mwanza

Judge    Katiti J

June 10, 1979

(PC) CIVIL APPEAL 37 OF 1978

Fly note

Administration of Estates - Application for appointment of administrator of deceased's estate - Duty of the court in appointing administrators.

Conflict of Laws - Application for appointment of administrator of a deceased's estate - Conflict between Islamic Law and Customary Law - Primary court has jurisdiction to decide the law applicable.

Head note

The respondent sought and obtained from the Primary Court her appointment as an administrator of the Estate of the deceased.  She maintained that as the sister of the deceased she was entitled to administer the Estate under Islamic Law.  The appellant, a nephew of the deceased's husband who had himself died much earlier, disputed the respondent's appointment as administrator.  His objections failed both in the Primary Court and in the District Court, hence this appeal to the High Court.

Held: 

(i)            On application for appointment of an administrator of a deceaced's estate, the duty of the court is to appoint as administrator a person who has an interest in the estate,  and according to the wishes of the deceased if any are expressed;

(ii)           as the applicant in this case could only sustain his claim of having an interest in the Estate through Customary Law and the respondent could only sustain her similar claim through Islamic Law, either party may be the interested party depending on what law the court decided to be the law applicable;

(iii)          the Primary Court (having jurisdiction under both Islamic and Customary Law) applied no wrong principles in appointing the respondent the  administrator.

Appeal dismissed.

SOFIA SAID AND YUSUF MOHAMED MUSA v AWADH AHMED ABEID & THREE OTHERS 1992 TLR 29 (CA)

Court     Court of appeal of Tanzania - Dar Es Salaam

Judge    Ramadhani JJA, Mnzavas, JJA, Mapigano Ag. JA

28 February, 1992

Fly note

Islamic law - Inheritance - Principles of inheritance where a person dies intestate;

Islamic law - Inheritance - Importance of proximity to the deceased person in intestate succession.

Head note

Fatuma d/o Sefu who was a Sunni - Shaffii Moslem died intestate in 1983. After an application in the Kariakoo Primary Court by the could be heirs the Court appointed the fourth respondent as the administrator of the deceased estate. On the same day the court made an order that the assets of the deceased be sold by auction. There was no dispute that under Islamic law Mgeni Hemedi, the surviving husband of the deceased was entitled to take half of whatever fell to be decided. The issue was the method to be adopted for the distribution of the remaining part of the estate. Several relatives from the uterine and agnate sides competed for a share. The matter was taken to the District Court. The District Court held that since there were no Koranic heirs other than Mgeni Hemedi, heirs on the uterine side are entitled to inherit along with those on the agnate side. The appellants are aggrieved by this decision and they appealed to the High Court. The High Court upheld the decision of the District Court. They appealed further to the Court of appeal.

Held:

(i)            In the Islamic law of succession the principle of proximity is of great importance in that within the limits of each class the nearer of blood excludes the remote;

(ii)           under the Islamic law of inheritance there are three principal classes of heirs - the "sharers" or "koranic heirs"; "Residuaries" and the "Distant Kindred". The rule regarding their right of inheritance prescribes that residuaries inherit only where there are  no koranic heirs or where the inheritable estate is not exhausted by the Koranic heirs and the distant kindred inherit only where there are no sharers of residuaries;

(iii)          as the Koranic heir, Mgeni Hemedi, did not exhaust the estate the only person who has the right of inheritance in the circumstances is a residuary i.e. the second appellant. The rest of the claimants have no right under Islamic law.

Appeal allowed.

SCOLASTICA BENEDICT v MARTIN BENEDICT 1993 TLR 1 (CA)

Court     Court of Appeal of Tanzania - Mwanza

Judge    Nyalali CJ, Makame JJA and Omar JJA

CIVIL APPEAL NO. 26 OF 1988

9 March, 1989

(From the Judgment and Decree of the High Court of Tanzania at Mwanza, Moshi, J.)

Fly note

Civil Practice and Procedure - Functus officio - When a court becomes functus officio.

Probate and Administration - Administration of estates - Administration of registered land - Whether primary courts have jurisdiction.

Magistrates' Courts Act - Jurisdiction - Administration of estates - Subject matter of administration is registered land - Whether primary court has jurisdiction - Sections 14 and 15 of the Magistrates' Courts Act, 1984 and Government Notice No. 320 of 1964.

Head note

The appellant's husband died intestate in 1971. He was survived by two wives and a number of sons and daughters. The deceased left to his heirs substantial property including motor vehicles, farmland, cattle and houses. The administrators of the deceased's property distributed the property and the interests therein to the heirs in accordance with the guidance of the clan council acting under Haya customary law. None of the widows of the deceased inherited any property of the deceased; instead they were required to reside with and be maintained by their respective children according to Haya customary law. The respondent, one of the sons of the deceased by his first wife, was given, among other things, a house on plot Nos. 17 and 19 Block `D' in Bukoba township, in which the appellant, the second wife of the deceased had been living with her deceased husband. The only daughter whom the appellant had sided with the deceased was given, among other things, a farmland including a house in need of some repair at Kanoni Shamba.

The appellant filed a civil suit in the Urban Primary Court of Bukoba challenging the administration of the estate of her deceased husband, particularly in respect of the house on plot Nos. 17 and 19 Block `D' in Bukoba township. The defendants resisted the suit on the ground, inter alia, that the primary court had no jurisdiction on the subject-matter. The primary court overruled the defendants who successfully appealed to the District Court whose decision was confirmed by the High Court.

The High Court, however, granted the appellant `liberty to pursue her claim' either in the District Court or the High Court. This liberty was not exercised.

The respondent, who was given the house on plot Nos. 17 and 19 instituted a suit in the Court of Resident Magistrate at Bukoba seeking, inter alia, to evict the appellant and her daughter from the suit premises. The trial court granted vacant possession to the respondent. The appellant's appeal to the High Court failed. On a further appeal to the Court of Appeal of Tanzania the Court upheld the decision of the High Court. In addition the Court considered when a court becomes functus officio and the question of jurisdiction of primary courts in administration of registered land.

Held:

(i)           As a general rule, a primary court, like all other courts, has no jurisdiction to overturn or set aside its own decisions as it becomes functus officio after making its decisions;

(ii)           The only exception to this general rule includes the setting aside of ex parte decisions and reviews of decisions induced by fraud or misinformation;

(iii)          While section 15(1)(c) of the Magistrates Courts Act 1963 (now s. 19 of the Magistrates' Courts Act 1984) did not specify the particulars relating to the administration of estates, the order of the Chief Justice published as Government Notice No. 320 of 1964 conferred jurisdiction on primary courts in matters of administration of estates regardless of whether the subject-matter is land registered under the Land Registration Ordinance, provided the applicable law is customary or Islamic law, other than matters falling under the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance.

Appeal dismissed in its entirety.

MOHAMED HASSANI v MAYASA MZEE AND MWANAHAWA MZEE 1994 TLR 225 (CA)

Court     Court of Appeal of Tanzania - Dar es Salaam

Judge    Kisanga JJA, Mnzavas JJA and Mfalila JJA

CIVIL APPEAL NO. 20 OF 1994

23 December, 1994

(From the decision of the High Court of Tanzania at Tanga, Msumi, J)

Fly note

Probate and Administration - Administration of Estate - Powers of the Primary Court to appoint and replace an administrator - Rules 2(a) and (b) of the First Schedule of the Magistrates' Courts Act, 1984.

Probate and Administration -  Challenging validity of appointment of an administrator - Onus of proof.

Probate and Administration -  Disposition of property - Whether consent from all heirs is necessary before sale of property.

Head note

This was an appeal against the decision of the High Court that the appointment of one Mfundo Omari as an administrator of the estate of the late Mzee Risasi was void because it was done under Rule 2(b) and not under Rule 2(a) of the Fifth Schedule to the Magistrates' Courts Act, 1984, and thus he had no power to dispose the property of the deceased's estate and, therefore, his sale of the house to the appellant was null and void. It was argued by the appellant that the appointment was valid under Rule 2(b) because it was a replacement and not a first appointment.

Held:

(i)            Primary courts are empowered under Rule 2(a) of the Fifth Schedule to the Magistrates' Courts Act, 1984, to make first appointment of administrators of estate and Rule 2(b) of the same schedule for appointment of a replacement. Therefore the Judge was wrong to restrict the powers of Primary Courts to appoint administrators to Rule 2(a).

(ii)           It is up to the person challenging the validity of appointment of an administrator by the court to show that the person so appointed does not have the required qualifications to administer the estate.

(iii)          The administrator is not legally required to obtain consent of all the heirs before disposing of property or sale of a house.

Appeal allowed.

GEORGE A MMARI AND ANANDE A MMARI 1995 TLR 146 (HC)

Court     High Court of Tanzania - Dar Es Salaam

Judge    Mwaikasu J

(PC) Civil Appeal No 116 of 1994

May 14, 1995

Fly note

Probate and Administration - Wills - Attestation of wills - Will drawn by a literate person - When valid - Local Customary Law (Declaration) (No 4) Order 1963, GN 436 of 1963 Rules 5 and 19.

Head note

The appellants challenged the validity of a will drawn by their deceased father while hospitalized bequeathing a house to their stepmother. The will was attested by the said stepmother, i.e. wife of testator, and the doctor who was attending the deceased.

Held:

(i)            For a will drawn up by a literate person to be valid it must be attested, besides the wife (wives), by at least two persons of whom one must be a relative of the deceased;

(ii)           The deceased's will was not attested by a relative of the deceased, and it was defective for want of proper attestation.

Appeal allowed.

INTRODUCTION

Human rights are freedoms established by custom or international agreement that impose standards of conduct on all nations. Human rights are distinct from civil liberties, which are freedoms established by the law of a particular state and applied by that state in its own jurisdiction. Human rights are commonly understood as "inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal (applicable everywhere) and egalitarian (the same for everyone). These rights may exist as natural rights or as legal rights, in both national and international law[1].

Human rights include the right to personal liberty and Due Process of Law; to freedom of thought, expression, religion, organization, and movement; to freedom from discrimination on the basis of race, religion, age, language, and sex; to basic education; to employment; and to property. Human rights laws have been defined by international conventions, by treaties, and by organizations, particularly the United Nations. These laws prohibit practices such as torture, Slavery, summary execution without trial, and arbitrary detention or exile.

Human rights can be classified and organized in a number of different ways, at an international level the most common categorization of human rights has been to split them into civil and political rights, and economic, social and cultural rights.

Civil and political rights are enshrined in articles 3 to 21 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Civil and Political Rights (ICCPR).

Economic, social and cultural rights are enshrined in articles 22 to 28 of the Universal Declaration of Human Rights (UDHR) and in the International Covenant on Economic, Social and Cultural Rights (ICESCR).[2]

Importance of Human Right

Human rights hold various significances to the society which makes it valuable. Some of them are:

It gives access to the basic needs

Through human right, basic needs such as , food and water, clothes, and shelter are easily accessed. By including these in a person's basic human rights, everyone has a baseline level of dignity.

It protect Disabled groups from abuse

The Declaration of Human Rights was created largely because of the Holocaust and the horrors of WII. During that time in history, the most vulnerable in society were targeted along with the Jewish population, including those with disabilities and LGBT. Organizations concerned with human rights focus on members of society most vulnerable to abuse from power holders, instead of ignoring them.

It set a worldwide standard and norms that enforce accountability of the government

When the UDHR was released, it had a two-fold purpose: provide a guideline for the future and force the world to acknowledge that during WWII, human rights had been violated on a massive scale. With a standard for what is a human right, governments can be held accountable for their actions. There's power in naming an injustice and pointing to a precedent, which makes the UDHR and other human right documents so important.

Main body

The following are the basic characteristics of human rights:

1. It is inherent by nature,The most outstanding characteristics of Human Rights are that it is inherent and natural. None acquires it by any special quality of reputation. It is not the charity of any person or any social system. Every man is by born entitled to these rights. Thus it do not have to be bought, earned or inherited; they belong to people simply because they are human. Human rights are inherent to each individual. The idea that people have inherent rights has its roots in many cultures, and traditions. We can see from numerous examples of revered leaders and influential codes of practice that the values embodied in human rights are neither a "Western creation" nor a 20th-century invention. They are a response to universal human needs and for the search for justice. All human societies have had ideals and systems of ensuring justice, whether in their oral or written traditions, although not all of these traditions have survived.[3]

2. It is a fundamental right, Human Rights are fundamental rights because without them, the life and dignity of manwill be meaningless.

3. It is Not Exchangeable: Human Rights cannot be handed over, exchanged or transferred. It is excessive to all. It could neither be given away, nor could be stolen or taken away by snatching. no one has the right to deprive another person of them for any reason. People still have human rights even when the laws of their countries do not recognize them, or when they violate them - for example, when slavery is practiced, slaves still have rights even though these rights are being violated. Human rights are inalienable. Human Rights are inalienable because:
4. They cannot be rightfully taken away from a free individual.
5. They cannot be given away or be forfeited.

4. Imprescriptibly - Human Rights do not prescribe and cannot be lost even if man failsto use or assert them, even by a long passage of time.
5. Human rights are indivisible, interdependent and interrelated.

This means that different human rights are intrinsically connected and cannot be viewed in isolation from each other. The enjoyment of one right depends on the enjoyment of many other rights and no one right is more important than the rest. To live in dignity, all human beings are entitled to freedom, security and decent standards of living concurrently. Human rights are indivisible. Human Rights are not capable of being divided. They cannot be denied even when other rights have already been enjoyed.

6. Universal  Universality stands out as the basic value of human rights. Everyone is entitled to all the rights and freedoms set forth in this Declaration. It is universal in application and they apply irrespective of one's origin, status, or condition or place where one lives. Human rights are enforceable without national border. Human rights are the same for all human beings regardless of race, sex, religion, political or other opinion, national or social origin. We are all born free and equal in dignity and rights human rights are universal.
7. Interdependent - Human Rights are interdependent because the fulfillment or exercise of one cannot be had without the realization of the other.

V.Feasibility: The important characteristics of Human Rights are its feasibility or effectiveness. That is Human Rights should never be viewed as a hypothetical or abstract concept. It is shaped by the social values, norms, culture and institutions[4]

The Universal Declaration of Human Rights (UDHR) is a non-binding declaration adopted by the United Nations General Assembly in 1948, partly in response to the barbarism of World War II. The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights are part of the "foundation of freedom, justice and peace in the world". The UDHR was framed by members of the Human Rights Commission, with Eleanor Roosevelt as Chair, who began to discuss an International Bill of Rights in 1947. The members of the Commission did not immediately agree on the form of such a bill of rights, and whether, or how, it should be enforced. The Commission proceeded to frame the UDHR and accompanying treaties, but the UDHR quickly became the priority.[5]

Origin of the Universal Declaration of Human Rights

The philosophy of Human Rights began with the Enlightenment. In The Social Contract (I,4), Rousseau sought "a form of association … in which each, while uniting himself with all, may still obey himself alone, and remain as free as before."

The 1948 text of the Universal Declaration of Human Rights is inspired by the 1789 text of The Declaration of the Rights of Man and of the Citizen.

After the horrors of the Second World War, the international community decided to draw up an international charter of rights that would affirm the values put forward in the struggle against fascism et Nazism.

The drafting of such a charter was entrusted to a committee chaired by Eleanor Roosevelt and composed of members from 18 countries. The Charter was drafted by Canadian John Peters Humphrey, and then revised by Frenchman René Cassin.

Implication of Universal Declaration of Human rights 1948

• Human rights is the foundation of freedom and justice in the World
• Reaffirm natural law theory by using natural language that human right are inherit, and inalienable.
• It is binding and it sets standard to be observed by every nation in preserving and promotion of human rights.
• Inseparable by combining civil, social, cultural, economic, and political rights.
• It stipulate rights and duties oif people towards the society
• Stipulate characteristics of human rights such that universality, indivisibility, independent and interdependent.
• Raised awareness to human rights issues.

REFERENCES

Books

1. Guðmundur S. Alfreðsson, Asbjørn Eide,(1999) The Universal Declaration of Human Rights: A Common Standard of Achievement Kluwar Law International
2. Gordon DiGiacomo,,, Human Rights: Current Issues and Controversies, University of Toronto Press
3. Conor Gearty et al (2001) Can Human Rights Survive? Cambridge University Press
4. Makau Mutua (1998), Human Rights: A Political and Cultural Critique, University of Pennsylvania

Websites

1. https://www.equalityhumanrights.com/en/what-are-human-rights/what-universal-declaration-human-rights as accessed on 23th June 2020

[1] Guðmundur S. Alfreðsson, Asbjørn Eide,(1999) The Universal Declaration of Human Rights: A Common Standard of Achievement Kluwar Law International 18

[2]  Gordon DiGiacomo,,, Human Rights: Current Issues and Controversies, University of Toronto Press

[3] Conor Gearty et al (2001) Can Human Rights Survive? Cambridge University Press

[4] Makau Mutua (1998), Human Rights: A Political and Cultural Critique, University of Pennsylvania

[5] https://www.equalityhumanrights.com/en/what-are-human-rights/what-universal-declaration-human-rights

Personal injuries as referred to section 2 of the Law Reform (Fatal Accident and Miscellaneous Provision) Act[1] [1]include any disease and any impairment of a person's physical or mental condition and the expression injured shall be construed accordingly. By legal definition is an injury to your body, mind or emotions it's not an injury to physical property physical injuries cover harm such as broken bones, bruises or any serious injury sustained in an accident it also include the emotion and psychological injury you experienced as a result of trauma sustained through a humiliating or life threatening experience.

A personal injury case arises as the result of someone negligence, if you are a victim of an accidental personal injury caused through the fault of another, that individual or business is legally responsible to pay damages and or compensation [2]. Example of personal injuries cases include car accident, accident in work places medical malpractice,

The amount of money that you are entitled to in a personal injuries claim depends on several factors, this may include the type of accident, the nature of your injuries and whether it affect your ability to work. To determine what you claim is worth, you may become informed as to type of damages that you can be compensated; this may include medical care and relate expense, permanent physical disability and loss of family, emotional or psychological damages, damaged property involved in the accident. Example of the cases which show how a person can be compensated in case of injury.

In the case of UNION OF INDIAN  V. SAVITA SHARMA[4] a girl about 18nyears old had been seriously injured when the tempo in which she was traveling was knocked down by a military vehicle, on e of her leg from knee downward was amputed,the court observed that there must  have been a great agony after accident, she has to use an artificial leg which needed replacement year after year compensation which she was allowed included Rs 15000 for Permanent disablement and Rs 600 for replacement of art fail leg for 40 years the period of her life expectancy.

Workers and employee.

Also in( The Occupational  Health and Safety)under s.81 it show the penalty in case of death or injury it state that where any person is killed ,or suffer seriously bodily injury in consequence of the occupier or owner  of the factory or work place having contravened any provision of this Act or of any regulation ,rule or order made there under ,occupier or owner of the factory or  work place shall without prejudice to any other penalty ,be liable to a fine of  not less than ten million shilling or to imprisonment for ten not exceeding to two years or to both such fine and imprisonment

(2) in the case of injury to death ,the occupier or owner shall not be liable to a penalty under this section unless the injury was caused directly by the contravention

(3) the occupier shall not be liable to a penalty under this section if  a charge against him under  Act in respect of the act or default by which the death or injury was caused has been heard and dismissed before the death or the injury occurred.

Assessment of damages

Age and expectations of working life of the deceased. The court will make references to the letters of appointment found in confidential files of the employees. The court may make references to the birth certificate of the deceased if at all the certificate is available an assistance may be obtained from other records such as baptismal certificate and the like depending on the

The case of RADHAKRISHEN M KHEMENEY v. MRS LACHADA MURLIDHAR[15] in this case the respondent sue the appellants for damages, alleging that the death of the respondent was due to the appellant negligence, the trial judge found the respondent and award general damages Shs. 132,500/=

HELD in considering an award for damages under fatal accident ordinance the court should ascertains age, expectation of working life, wages and expectation of the deceased, would have made available for his dependent from which annual value of the dependency could be calculated having regard to the expectation of earning life of the deceased, widow and children.

Also in the case of CHUNIBAI J. PATEL AND ANOTHER v. P.F.HAYES AND OTHERS[16]

In this case was whether widow subsequent earning to be taken into account, the respondent a widow and her two infant children had been awarded damages in Supreme Court for the death of her husband and for their own injuries arising from motor accident caused by the appellant's negligence. On appeal against quantum of damages awarded it contended that as a widow had obtain employment after accident her earning should be regarded as direct consequence of the death or in alternative that as an employee in the company of which her husband was only a substantial shareholder her earning should be regarded as profit from the deceased estate to which she has succeed.

HELD earning of the widow were adventurous benefit and were not receivable as a direct or natural consequence of the death.

After ascertaining the age, the figure will be deducted from the retirement age and the difference will be the working life expectation period.

ILLUSTRATION

For instance, A's birth date 1970.while working with C's company on 15/8/1994 met a fatal accident, he A's age by August 1994 was 1994-1970=24 years. Thus A was 24 old at the time he met an accident. The working expectation period of A was 55 years=21.

The net earning power of the deceased (his income less tax) and the age and expectations of life of his dependants, the law assumes the wife (widow) to be totally dependent to the husband and the vice versa. Children are assumed to be dependent to their parents for the when they have the age below 18 years. For example A, as an employee of c earning 25,000 per month on 1/11/1994 met an accident that led to his death, his net earning power is calculated by taking his basic salary 25,000 minus the income tax. The income tax will be determined according to the formula laid down in the book of income tax of that year.

Deductible incidents

The court in assessing damages required in any action of fatal accident bears in mind certain deductible term before reaching the final sum. This include generally accelerated Income of what the deceased left to the beneficiaries such as accelerated pension fund.

Consider the case of Nawoneiwa Demangwa and Others v. Maweta[17]. In this case the plaintiff sued the defendant for damages on behalf of herself and her nine children as dependents of the deceased under section 2 of the law reform (fatal accident and miscellaneous provision) ordinance chapter 360 on the basis of negligence. That the deceased was travelling in a bus on a muram road. While going uphill the driver came upon a stone in the road on his right hand side. The stone was about one foot across and protruded out of the surface. The driver swerved to avoid the stone and drove onto the soft shoulder at the side of the road, this proved unable to support the weight of the bus which when plunged into the ravine killing the driver and the deceased instantly. The defendant was the owner of the bus and the driver was his servant. The deceased was 39 years old and was a divisional executive officer, drawing a salary of sh.360 per month. He lived with his wife and children in a part of his father's house, which had been provided for him, together with a shamba of about one and a half acres the amount spent on the wife and children was about 190/=

[1] CAP 310 R.E.2002

Questions:

1. Give out the amendments of the Civil Procedure Code Cap 33R.E 2018
2. In what situation where the leave of the Court is granted as per Civil procedure Code cap 33 R.e 2002

Introduction

The following are the amendments of the civil procedure code as amended by the Written laws (Miscellaneous Amendment Act)(No. 3) Act 2018 part III. These amendments have been declared under the Government notice No. 381 as published on 10/5/219.

1. This new amendment introduces a new part B after Rule 16, with the title

FIRST PRE-TRIAL SETTLEMENT AND SCHEDULING CONFERENCE.

1. Rule 17 follows which in essence introduces the time frame for setting dates of Orders or Directions for interim Applications or other preliminary matters that have been raised by parties or those parties intend to raise. The said Rule provides that the Court shall hear parties on interim applications or any other matters within fourteen days of pleadings being completed.

1. Rule 17 (2) provides for yet another time frame, i.e. Fourteen days from the date that such parties were heard, within which the Court is to deliver a Ruling. Previously, the Code did not provide for a time frame within which the Court is required to issue a Ruling on any interim Application. This resulted in delays as Courts sometimes took up to several months to issue Rulings on simple technical and procedural issues. With the coming into force of G.N. No. 381 of 2019 such delays will be avoided.

1. Sub rule 3 of the Rules provides for consequences of non-appearance on the date fixed for Orders; including either dismissal of the suit, striking out of the defense or counter claim or any other Order as it [the Court] considers just. The important thing to note here is that previously the Law was silent. Hence it follows that there were no consequences where a party failed to appear on a date that was set for Orders and the Court has had to act on its discretion under Section 95 of the Code in such instances. With the coming into force of the amendment, parties' attendance has been made mandatory and non-attendance has been made verily culpable.

1. Sub rule 4 allows for parties to apply to the Court to vary an Order made against such party for non-appearance – such variation and or removal is subject to the party applying for the same within thirty days of issuing of the Order. You shall note that previously, if the Court made an adverse Order against a party, whether for nonappearance or any other reason, such aggrieved party had the option to file an Application to set aside the said dismissal Order.

1. Under the Schedule to the Law of Limitation Act, Part III, if a party wishes to set aside an Award under the Civil Procedure Code, such Party is to apply to the Court within 30 days of issuance of such Award. For a suit that has been dismissed and a party wishes to restore it, the said party is to make an Application within 30 days as well. Hence in essence, while the time frame for making such Applications remains the same, the new amendment merely specifically establishes the time frame within the Civil Procedure Code itself.
2. Rule 18 provides for powers of the Court to direct parties to attend a pre-trial conference relating to matters arising in the suit. Of importance to note here is Rule 18 (3) which gives the Court mandate to enter judgment or enter any other Order that may give effect to settlement provided parties have agreed to such settlement. In our opinion this is commendable as it enhances and facilitates speedy disposal of cases which do not need to go to trial.
3. Rule 19 (1) provides that parties are to be informed as to the date and time for the said pre-trial conference either in their presence or through notices to be issued accordingly.

With the introduction of this Sub Part, Order VIII A titled FIRST PRE TRIAL SETTLEMENT AND SCHEDULING CONFERENCE was deleted. In essence, all those provisions relating to pre-trial conference under the previous Order VIII A are now inapplicable.

First Pre- Trial Conference, Consequences for Non-Appearance and Remedies for Aggrieved Parties

1. Rule 20 (1) provides for consequences of failure to appear for the pre-trial conference. In essence, if the defaulting party is the Plaintiff, the suit shall be dismissed, if it is the Defendant, the Defense shall be struck out, and Judgment shall be entered or any other Order made that the Court shall deem fit and just to make.
2. Sub-rule 3 of the same Rule is to the effect that after the first adjournment, if all parties fail to attend the pre-trial conference, the Court shall dismiss the suit. Please note that this position is new, the old rules under Order VIIIA Rule 5 gave mandate to the Court to give any order as it deems fit, including one for costs.
3. Rule 21 provides for consequences where either of the parties has failed to comply with any of the Courts directions given during pre-trial conference and the said consequences include dismissing the suit – if the non-complying party is the plaintiff; striking out the defense – if the non-complying party is the Defendant; Order a party to pay costs, or make any other order as it deems just.

Speed Tracking of Cases

3. Rule 22 covers the issue of Speed Track of Cases which was previously covered by Order VIIIA Rule 3. Rule 22 (1) introduces the time frame within which the Court is to hold the first pre- trial conference. i.e. 21 days after completion of pleadings. You may wish to note that before the coming into force of these Rules, the Law did not provide for a specific period of time for holding of the pre-trial conference.
4. Sub Rule 2 of Rule 22 provides for ascertaining of the speed track of cases after consultation with parties. Sub-rule three provides for the time frame for each speed track of cases. With 10, 12, 14 and 24 months for Speed tracks 1,2,3, and 4 respectively.
5. While the time frame for such speed tracks remains the same as per the Previous Order VIIIA Rule 3, what the new amendment adds is the time from which such speed tracks shall start running. While previously there was confusion generally as to whether the time fixed for speed track of cases starts to run from the institution of a case or from the date of scheduling of the same, the recent amendment clearly provides that the time shall start running from the date Mediation or Reconciliation was marked as failed.
6. The new Rule 23 is similar to the old Order VIIIA Rule 4, which in essence prohibits departure from or amendment of the scheduling Order unless the Court.

2. The amendment further introduces part C, with the title NEGOTIATION CONCILIATION MEDIATION AND ARBITRATION PROCEDURE.
3. You will note that previously the Law provided for Court mandated Mediation that came after the First Pre Trial Conference. Under the repealed Order VIII C, with the title ARBITRATION NEGOTIATION AND MEDIATION PROCEDURE, a dispute referred to any of the alternative dispute resolution procedures was to be dealt with in accordance with directions issued by the Chief Justice. This amendment however introduces negotiation conciliation and arbitration, and goes a step further to provide for rules governing the same. Before coming into force of these Rules, Arbitration was provided for under part II of the Act only. Order VIII C merely mentioned the processes without any specific rules as to how the same are to be conducted. Hence for the litigator, these Rules are in fact a very positive development in the legal practice.
4. Rules Governing Negotiation, Conciliation Mediation and Arbitration Procedure.
5. Rule 24 provides that subject to provisions of other written laws, any civil action is to be referred to negotiation conciliation and arbitration or similar alternative procedure before proceeding for trial. Rule 25 provides for the procedure of appointing a mediator. Sub-rule 1 is to the effect that parties are to propose the name of a Mediator within 14 days after pleadings are complete. Sub-rule 2 is to the effect that should parties' file to appoint a mediator, the Court shall do so and inform parties either manually or electronically. Sub-rule 3 provides that the Court shall notify parties within 7 days after appointing the said Mediator and inform them as to the commencement of the Mediation session. Sub-rule 4 requires parties to provide the Mediator, at least 7 days before Mediation with a statement of issues together with pleadings and any document of importance which identify the issues in dispute and the parties' positions and interests. Sub-rule 5 requires the Mediator to set a date for the first session of Mediation, this is to be done within 7 days of his appointment as a Mediator. The said first session must be set not later than 21 days after his appointment.

• This same Rule (Sub Rule 6) provides a list of persons that may act as Mediators, these include Judges, Registrar or Deputy Registrar, Magistrates – in case of a Magistrates Court, a person appointed by the Chief Justice, retired Judge or Magistrate, and a person appointed by parties – who has relevant experience and qualifications. The Law requires parties, should they choose their own mediator, to remunerate him. However, for those Mediators appointed by the Chief Justice, their remuneration will be published in the Government Gazette by the Chief Justice.

1. Rule 26 provides generally for the manner in which Mediation is to be conducted. Generally, parties are required to ensure that costs and delays are kept to the minimum, the Mediator is to facilitate communication between parties, facilitate parties to resolve their dispute, conduct separate or joint meetings engage services of an expert if the same can be obtained at no cost or even at a cost if parties are willing to pay the same, the Mediator is also required to be guided by principles of objectivity, fairness and natural justice and also make proposals for settlement of the dispute in question.

Attendance at a Mediation Session, authority to settle arising issues and Consequences of Nonattendance.

1. Rule 27 provides for attendance for Mediation whereby parties and their Advocates or either of them are to be notified of the date for Mediation and shall attend the Mediation session, further, the Law allows for attendance of third parties in the Mediation should it be determined that the same is liable for either all or part of the claim.
2. Rule 28 requires a party to mediation to have authority to settle any matter during the Mediation session. A party who attends but requires the approval of another is to ensure that the person from whom approval is sought is available through any mode of communication during the session.

• Rule 29 provides for consequences of non-attendance without good cause by a party whereby the Mediator is required to return the file to the presiding Magistrate or Judge, who has mandate to either dismiss the suit, strike out the defence or order the party responsible to pay costs.
• Rule 30 allows an aggrieved party to apply to the Court within fourteen days of the Order against him being issued to restore the suit or the written statement of defense. The Court is required to hear and determine the said Application within fourteen days of the same being lodged. The Court may set aside the Order upon the application by an aggrieved party subject to the same showing good cause.

General Rules – Mediation, Arbitration and Conciliation.

1. Rule 31 requires all communication during the mediation session to be kept confidential by all parties. Parties are prohibited from using any information, document or recording obtained during Mediation at trial.
2. Rule 32 provides for the period of Mediation, the same is not to exceed a period of 30 days.
3. Rule 33 provides circumstances under which a Mediation is to come to an end, i.e. by parties executing a settlement agreement, the mediator making a declaration to the effect that further Mediation is not worthwhile, or thirty days thirty days expire from the date of the first session of mediation. Rule 34 requires the Mediator at the conclusion of Mediation to remit the record to the trial court immediately or within 48 hours.

• Rule 35 is on Arbitration. The provisions of Arbitration remain the same as under the 2nd Schedule to the Code.
• Rule 36 allows the Court at the request of either of the parties to refer the dispute to negotiation or conciliation and the said matter shall be dealt with in accordance with the Applicable Law and agreement of the Parties to negotiate and reconcile.
• The time frame for such negotiation or conciliation is provided for under

Rule 38 whereby the same is to be concluded either within a period of 30 days or upon execution of a settlement agreement, or upon a party declaring that further negotiations is not worthwhile. The 30 days period may however be extended.

1. At the conclusion of said negotiations parties are to remit the settlement agreement to the trial Court immediately or within 48 hours.

Filing of Cases [Rule 1 and 3 of Order IV]

Order IV of the CPC caters for "Institution of Suits". It provides on the manner regarding how the filing, presentation and registration of suits. Given the judiciary's recent migration of its system into electronic registry, it was incumbent upon them to update the filing rules.

In essence, Rule 1(1) and 1(3) of Order IV have been amended to the following extent;-

"(a) deleting sub-rule (1) of rule and substituting for it the following-

"(1) Every suit shall be instituted by presenting a plaint electronically or manually to the court or such oicer appointed in that behalf"

(b) deleting rule 3 and substituting for it the following3. Where a suit has been duly instituted it shall be assigned to a specific Judge or Magistrate electronically or manually by the Judge or Magistrate in Charge of the court."

The important key in this amendment is that, the presentment of the suit and the assignment of a suit to a certain Judge can be done in either way, i.e. electronically or manually. A litigant is thus not obliged to file electronically if he/she opts to do so manually.

Timeline for Service of Summons and Fixing Date for Orders

Timeline for Services of Summons [Rule 1(2) and Rule 10 of Order V]

Before the amendments, the plainti had 21 days to eect service of the summons (the old Rule 10 of Order V). Aer the amendments, the days have been reduced to fourteen (14). Furthermore, the previous position was silent as regards failure of the Plaintiff to service summons within the time period (21 days then). G.N. No. 381/2019 has also addressed this issue firmly and strictly.

Rule 1 Sub-rule 2 of Order V, as amended, provides that the plaint/suit may be stricken out if service of the summons has not been eected within the 14 days timeframe. The new additions are commendable in terms of saving of time and ensuring timely disposal of cases. Nonetheless, their applicability needs to be in check, to ensure that justice is not forsaken at the expense of technical hitches.

Fixing Date for Orders [Rule 4 of Order V]

The amendment (See new Rule 4 of Order V) now requires the court to fix a date where the matter will be called before the assigned Judge/Magistrate for necessary orders. The date ought to follow the fulfillment of condition precedents in Rule 17 of Order VIII (discussed and expounded below). In retrospect, this new amendment has taken away what were seemingly, absurd requirements in the old Rule 4. The summons to appear, which are now scrapped, used to require the Defendant to appear in court, on the first day of appearance, with all the documents he wishes to rely on his case, as well as all witnesses he wishes to rely on their testimonies. This was an outright misnomer, since in our practice; no witnesses or evidence would be heard, tendered or admitted on the first day of a suit. There are several technical stages and events in between first appearance to first hearing. And in essence, even then, it is the Plainti who first presents their case.

. Parties Particulars In the Plaint [Rule 1 Order VII]

The CPC is also amended in Order VII Rule 1 (b) and (c) which deals with the information regarding the plainti and those for the defendant(s). Previously, the information required was simply, the name, description and residence of the parties (in so far as they can be ascertained, in the case of the defendant(s)). The amendment now reads (including new required info as underlined; our emphasis) as follows:-

(b) the name, description and place of residence of the plainti including email address, fax number, telephone number and post code if available;

(c) the name, description and place of residence of the defendant including email address, fax number, telephone number and post code if available, so far as they can be ascertained."

Conclusion:

These amendments can be said to have contributed in increasing the solving of cases in the court rather than the previously.

Leave of court, Can be defined mean the permission granted by the court to perform as specific task. Permission obtained from the court to take some action which, without such permission, would not be allowed. In Tanzania, the law has provided different of leave which are elaborated by different laws, example the Leave to appeal and the leave to file third part notice .and hereby are the kinds of leaves elaborated by the laws in Tanzania. The statute, provides that it shall be lawful for any defendant, or tenant, in any action or suit, or for any plaintiff, in any court of record, with leave of the court, to plead as many several matters thereto, as he shall think necessary for his defense. When the defendant, in pursuance of this statute, pleads more than one plea in bar, to one and the same demand, or thing, all of the pleas, except the first, should purport to be pleaded with leave of the court. But the omission is neither error nor cause of demurrer.

The following are the circumstances which the court leave maybe granted as explained in Civil Procedure Code Cap 33 RE 2002;

The leave of the court to executions of the decree against firm,  order XXI rule 49(2), provide that where decree holder claim to be entitled to cause the decree to be executed against any person other than hat such person as being a partner in the firm, he may apply to the court which passed he decree for the leave , and where liability is not disputed, such court may grant such leave, or which such liability is disputed, may order that the liability of such person to be tried and determined in any manner in which any issue may be tried and determined.

The leave of the court to attach the outer door or some other conspicuous part of the house that carries a business, This has been explained under  order XXI rule 43b  that, where such produce has been cut or gathered, on the place in which it is deposited, and another copy on the outer door or some other conspicuous part of the house in which the judgment debtor ordinarily resides or, with the leave of the court, on the outer door or on some other conspicuous part of the house in which he carries on business or personally works for gain or in which he is known to have last resided or carried on business or personally worked for gain and the produce shall thereupon be deemed to have passed into the possession of the court.

Leave of the court to defend summary suits; as explained in order XXXV rule 1 & 2 2.-(1) Suits to which this Order applies shall be instituted by presenting a plaint in the usual form but endorsed "Order XXXV: Summary Procedure" and the summons shall inform the defendant that unless he obtains leave from the court to defend the suit, a decision may be given against him and shall also inform him of the manner in which Application may be made for leave to defend.

In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from the judge or magistrate as provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled.

Where the suit arises out of a mortgage and is for delivery of possession, redemption, discharge or transfer to a decree in a accordance with the provisions of Order XXXII and other provisions of this Code and such decree may, subject to exercise by the court of such powers as it may have, unless it is a preliminary decree, be executed forthwith. where the suit is for the recovery of possession of any immovable property, building or premises or for payment of rent, mesne profits or damages for unlawful occupation of such immovable property, building or premises, to a decree for possession and for payment of rent, mesne profits or damages as claimed.

(2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from the judge or magistrate as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled.

Where the suit arises out of a mortgage and is for delivery of possession, redemption, discharge or transfer to a decree in a accordance with the provisions of Order XXXII and other provisions of this Code and such decree may, subject to exercise by the court of such powers as it may have, unless it is a preliminary decree, be executed forthwith;

Where the suit is for the recovery of possession of any immovable property, building or premises or for payment of rent, mesne profits or damages for unlawful occupation of Such immovable property, building or premises, to a decree for possession and for payment of rent, mesne profits or damages as claimed.

An order of the leave to amend pleadings; order VI rule 18 provide that , If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the court.

The leave of the court for detention a civil prisoners, this was explained under order XXI rule 30(2) that, Where the party against whom a decree for specific performance or for an injunction has been passed is a corporation, the decree may be enforced by the attachment of the property of the corporation or, with the leave of the court, by the detention as civil prisoners of the directors or other principal officers thereof, or by both attachment and detention.

The leave of the court to procure services through court of other countries; order V rule 1(a&b), When a suit has been duly instituted, a summons may be issued to the defendant at the time when the suit is assigned to a specific judge or magistrate pursuant to the provisions of rule 3 of Order IV–

(a) to appear and answer the claim on a day to be specified therein (hereinafter referred to as a summons to appear); or

1. (b) if the suit is instituted in a court other than the High Court and the court so determines, to file, in accordance with sub rule (2) of rule 1 of Order VIII, a written statement of defence to the claim (hereinafter referred to as a summons to file a defence):  Provided that no summons shall be issued under this rule when the defendant has appeared at the presentation of the plaint, has proved his identity to the satisfaction of the court and has admitted the plaintiff's claim:

The leave of the court to admit the document which ought to be produced but was not produced in the court, order VII rule 18(1) provide thta, If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the court.

The leave of the court to deliver interrogators in writing for the examination to opposite party; Also order XI rule 1 & 2 explain provide that, When a summons to appear has been issued on the day fixed in the summons for the defendant to appear or where a summons to file defence has been issued and a day for the hearing is fixed in accordance  with the provisions of rule 15 of Order VIII, on the day so fixed for hearing, the parties shall be in attendance at the court-house in person or by their respective recognized agents or advocate, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the court.

Leave to file third party notice

This type of leave is provided under the Civil procedure code[1] , whereby the defendant is given a room to join another person who is not a party to the suit as a co-defendant into the suit in the fact that he (defendant) has a legally recognized claim against that other person and this is provided under Order 1 rules 12-23 and there are condition for joining the third party which are seen in the Order 1 rule 14, First that the person to be joined is not part to the suit  and also the defendant who wants to join that person has claimed the third part and also that the defendant claims from the third party for any contribution or indemnityand lastly is that the claim from the defendant is connected with the subject matter. As it was seen in the case of Global Agency Ltd & Others vs. Rabo Rural Fund B.V[2]

The leave of the court to their seeks between cooperatives; in order XXIX rule 9, This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners in common; but no execution shall be issued in such suits except by leave of the court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just.

[1] Cap 33

[2] Commercial Appl.No .26 OF 2020