What are the amendments of the Civil Procedure Code Cap 33R.E 2018

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