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Amendment of pleadings and summary of judgment in the court of laws

criminal , evidence
Answered by: Daud Kimario
College: Moshi cooperative university (Mocu)
Programme: LLB
Year of study: II


Qn: Discuss the circumstances under which a court of law will make the following four order

(i) Amendment of pleadings
(ii) Discovery and Inspection
(iii) Striking out of pleadings
(iv) Summary judgement

 

OUTLINE

1:0 INTRODUCTION

2:0 AMENDMENT OF PLEADINGS.
2:1 The circumstances under which the court of law would make an order of amendment of pleadings.


3:0 DISCOVERY AND INSPECTION
3:1 The circumstances under which the court of law would make an order of discovery and inspection.


4:0 STRIKING OUT OF PLEADINGS
4:1 The circumstances under which the court of law would make an order of striking out of pleadings.


5:0 SUMMARY JUDGEMENTS
5:1 The circumstances under which the court of law would make an order of summary judgement.


1:0 INTRODUCTION

Courts of law in their process of administering justice are encountered with different kinds of roles/functions to which they must perform, as they are part and parcel of the court procedure. In this respect, it is the aim of this presentation to discuss in detail one of the roles of the court of law, which is concerned with making orders. This paper will most specifically dwell on the circumstances under which a court of law would make the following orders: Amendment of pleadings; discovery and inspection; striking out of pleadings and summary judgement.


2:0 AMENDMENT OF PLEADINGS.

Pleadings is the formal allegations by the parties to a law suit of their respective claims and defenses, with the intended purpose being to provide notice of what is to be expected at trial[1]. Under rules of civil procedure, the pleadings consist of a complaint, an answer, a reply to a counter-claim, an answer to across claim, a third party complaint, and a third party answer. The same is defined under Order vi Rule 1 of the Civil Procedure Code, hereinafter referred to as the CPC.


2:1 The circumstances under which the court of law would make an order of amendment of pleadings.

At any stage of the proceedings, the court has the power to allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. But all such amendments must be made for the purpose of bringing out for determination the real questions in controversy between the parties[2].


This rule, like most of the rules governing pleadings, is based on the principle that pleadings must raise all matters that are in dispute so that either party is aware of what the other party contends, and so that a multiplicity of legal proceedings is avoided. It is in this vein that, such amendments must be freely allowed if thereby the real substantial questions can be raised between the parties and a multiplicity of legal proceedings avoided. It should be borne in mind that, the making of the amendments is not really a matter of power of a court but it is the duty of the court to allow such amendments, so that substantial justice may be done[3].   


Previously, the proviso under Order vii Rule 11(a), as amended, used to reject a plaint when and where it did not disclose the cause of action. But the G.N. No. 228 of 1971 now has cured the position under a proviso. That, provided that if the court is satisfied that if the plaintiff is permitted to amend the plaint, the plaint will disclose the cause of action if the court may allow the plaintiff to amend the plaint subject to such condition as to costs or otherwise as the court may deem fit to impose. The same position was reiterated in the case of HANS NAGORSEN .v. BP TANZANIA LIMITED[4], where Kyando J, ordered the plaint to be amended so that defects pointed out could be rectified. 


Another circumstance is where there is a question of controversy between the parties in dispute. A point of controversy can arise for instance, where parties in dispute have not agreed as to what document is to be attached to the plaint as annexure. In support of this aspect is the case of TANZANIA OLYMPIC COMMITTEE .v. A. SIMBAULANGA,[5] where it appeared that there had been confusion between the parties as to the annexures to certain documents in the pleadings. In this regard, the court of Appeal ordered for the amendment of the plaint.



3:0 DISCOVERY AND INSPECTION

In a general sense, discovery is the ascertainment of that which was previously unknown, the disclosure or coming to light of what was previously hidden, the acquisition of notice or knowledge of given acts or facts, as in regard to the discovery of fraud affecting the running of the statute of limitations or the granting of a new trial for newly discovered evidence[6].


Therefore, it is the utter purpose of discovery to make the other party disclose the existence of documents and the inspection of documents by the party applying for such discovery. Inspection is to examine, scrutinize, investigate, look into, check over, or view for the purpose of ascertaining the quality, authenticity or conditions of an item, product, document, residence, business etc[7].


Discovery and inspection are governed under Order xi of the CPC. In any suit the plaintiff or defendant by leave of the court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer[8].


3:1 The circumstances under which the court of law would make an order of discovery and inspection.

Interrogatories as a general rule are to be allowed whenever the answer to them will serve either to maintain the case of the party administering them or to destroy the case of the adversary. In England, interrogatories are allowed so as to ascertain the nature of your opponent’s case or the material facts constituting his case, and to support your own case either directly by obtaining admission or indirectly by impeaching or destroying your adversary’s case[9].

In our jurisdiction, in respect of Order xi Rules 2, 10 and 15(2) of the CPC, the court shall make order as to discovery and inspection of documents when and so far it is of the opinion that it is necessary either for disposing fairly of the suit or for saving costs and must not be unreasonable. Order xi makes provision for the delivery of interrogatories by either party by leave of the court.

Objection to answering any interrogatory may be taken in the affidavit in answer on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit or not sufficiently material or on any other ground.


4:0 STRIKING OUT OF PLEADINGS

Striking out is the procedure for attacking pleadings and originating processes on the ground that they are not correctly formulated. A successful striking out application may result in an action being stayed or dismissed, the pleading being struck out and judgement being entered or it may result in the offending part of the pleading being struck out[10].


4:1 The circumstances under which the court of law would make an order of striking out of pleadings.

Generally, a court may, at any stage of the proceedings, order that any matter in any pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit be amended or struck out[11]. There is usually no difficulty in deciding what matter is necessary. The difficulty lies in deciding what matter is scandalous, embarrassing or prejudicial to a fair trial of the suit. A matter is said to be scandalous if it is indecent or needlessly offensive, or is an allegation made for the malignant purpose of abusing or prejudicing the opposite party[12].

In considering the question whether a pleading tends to prejudice, embarrass or delay the fair trial of the suit, a liberal interpretation should be given to the words ‘trial of the suit’. Hence, not only a pleading, which tends to prejudice or embarrass a party at the actual trial of a suit but also a pleading, which tends to prejudice or embarrass at any stage of the proceeding in the suit, would be within this rule.

Incomplete allegations of facts can be struck off and further, the allegations which are totally unnecessary and have been made with a view to embarrass the defendants cannot be permitted. A pleading is embarrassing if it is so drawn that it is not clear what case the opposite party has to meet at the trial. But a pleading is not embarrassing merely because it is prolix[13]. 



5:0 SUMMARY JUDGEMENTS

This is a procedural device available for prompt and expeditious disposition of controversy without trial when there is no dispute as to either material fact or inferences to be drawn from undisputed facts, or if only question of law is involved. Any party to a civil action to move for a summary judgement on a claim, counter-claim, or cross claim when he believes that there is no genuine issue of material facts and that he is entitled to prevail as a matter of law[14]. Summary judgement is a procedure whereby a plaintiff can apply for judgement against a defendant, usually shortly after saving a Statement of Claim, without proving the case at trial. The policy behind the procedure is to prevent delay in cases where there is no defence[15].


5:1 The circumstances under which the court of law would make an order of summary judgement.

Under Order xxxv of the CPC, it is clear that, in a summary suit, the trial begins after the court has granted leave to the defendant to contest the suit. Having done this, the court can proceed upto the stage of hearing the summons for judgement and passing the summary judgement in favour of the plaintiff. This will be done by the court under two circumstances: If the defendant has not applied for leave to defend or if such applications has been made but refused; or if the defendant who is permitted to defend fails to comply with the conditions on which the leave to defend was granted[16].



REFERENCES

1. Civil  procedure code cap 75 (R.E 2012)
2. Lecture notes on the civil procedure at Moi University




Citations
[1] Henry C. B, (1991) Blacks Law Dictionary, 6th Ed. p.798.
[2] Order vi rule 17 of the civil procedure code Act No.49 of 1966.
[3] HARJI KARSAN .v. MONJEE RAGHAVJEE (1943) E.A.C.A.10
[4][1987] TLR n.175 at 183.
[5] [1997] TLR 184 (CA)
[6] Henry. Op. Cit 322.
[7] Ibid. p.547.
[8] Order xi Rule 1. of the CPC.
[9] Vinay, K.G. (2005), Mulla Code of Civil Procedure, 14th Ed. p. 949
[10] Stuart, S. (1995), A Practical Approach to Civil Procedure, 2nd Ed. P. 361.
[11]Order vi Rule 16 of the CPC.
[12] Chipeta, B.D (2002) civil Procedure in Tanzania, p.69.
[13] Vinay. Op. Cit. P.809.
[14] Henry Op. Cit. 1001.
[15] Stuart, S. P. 158.
[16] Vinay, Op. Cit.  P.1552.
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Recent statutory developments in Tanzania have thrown the concept of jurisdiction into disarray. Discuss

constitution , law
Answered by: Bashiru saidy
College: Institute of judicial administration (IJA)
Programme: Diploma in Laws


OUTLINE

1.0 INTRODUCTION
1.1-The concept of jurisdiction

2.0 MAIN BODY

2.1 Statutory development and the changes in jurisdiction
2.2 Jurisdiction as to the General and Special Courts
2.3 The Recent Statutory Development and the Concept of Jurisdiction
     2.3.1 Advantages of the noted statutory development
     2.3.2 Disadvantages of the noted statutory development.

3.0 CONCLUSION

Bibliography


1.0 INTRODUCTION

In Tanzania there has been in the recent years the development of statutes. These developments have the impact on the jurisdiction of the courts as there has been the establishment of the courts with special jurisdiction. Though the said developments have affected the entire system of the courts as there is the establishment of the hierarchy which is independent such as the land division courts in which the Ward Tribunal is taken as the court for the purpose of the Act establishing it and at the top there is the High Court Land Division. Before going to the keen of the question it is better to start by familiarizing ourselves on the concept of jurisdiction.


1.1 THE CONCEPT OF JURISDICTION

The term Jurisdiction is not defined in Tanzanian statutes; hence we have to fall back to the common law by virtue of section 2 (3) of the judicature and application of laws Act herein below referred to as the JALA which allows the application of such laws in our legal system. Jurisdiction is defined as the power or authority of court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it[1].in other words by jurisdiction it is meant the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision[2].

Thus jurisdiction of court means the extent of the authority of a court to administer justice prescribed with reference to the subject matter, pecuniary value and local limits[3]. However generally Jurisdiction is defined as the power of the court or tribunal to hear and determine matters which are placed before it. Jurisdiction being important matter it was stated in the case of UTAMWA V AG & MUNGAI[4] that jurisdiction must be determined at the beginning of the proceedings not at the in the course of or at the end of proceedings.

2.0 MAIN BODY

2.1 STATUTORY DEVELOPMENT AND THE CHANGES IN  JURISDICTION.

In civil procedure the understanding of the jurisdiction of court one has to look on the statute establishing the respective court. In our country the civil procedure is guided by the civil procedure code 1966 which according to section 2 of the code the court in which applies are the High court, the District court and the Resident magistrate court.  However section 7 of the civil procedure code provides the presumption of jurisdiction to all civil court and gives cognizance of the power of other statute to oust general civil jurisdiction and to grant exclusive jurisdiction in certain civil matters.
In recent years there have been enactments of several statutes which in one way have affected the ordinary application of the jurisdiction compared to what was previously conceived.

The recent development of statutes in Tanzania has witnessed the establishment of several divisions of the high court which varies the jurisdiction of the court. As it is known the High Court has been established by article 108 of the Constitution of the United Republic of Tanzania 1977 as amended from time to time. The jurisdiction of the High Court is provided for under section 2(1) of Judicature and Application of Laws Act[5] that it has an unlimited jurisdiction over all matters.

There is also the enactment of the High Court Registry rules. These rules established several sub- registries of the High Court which operate in zones, but this is not to be taken to mean that, the High Court territorial jurisdiction is confined on the said zones rather it is just for administration matters only. However, there has been recent enactment of several statutes which either takes away the jurisdiction of court or makes the court to have concurrent jurisdiction. To understand this, it is time now we look at different enactments of statutes which have effect on jurisdiction.

To start with is the Land Division; this is a division of the High Court which is established under section 3 of the Court (Land Dispute Settlement) Act. This law has taken away the High Court jurisdiction over land matters which previously was the concern of the High Court main division and vested it to the respective division. The Act also has caused the establishment of the Village Land Council, the Ward Tribunal, the District Land and Housing Tribunal; which are recognised as courts under the Act. All these bodies established under that law are vested with exclusive jurisdiction over land matters. The Courts (Land Dispute Settlement) act is the product of section 167 (1) (b) which vests exclusive jurisdiction on land matters over among other tribunals the High Court Land Division


Another enactment of law which has affected the jurisdiction of the courts is the Labour Institutions Act; this law under the provisions of section 50 provides for the establishment of a Labour Division of the High Court; which is a court which exercises jurisdiction over labour disputes as provided under section 94 of the Employment and Labour Relations Act 2004.The court has exclusive jurisdiction over labour matters. This court has taken away the jurisdiction which was at the beginning exclusively vested on the District Court.

Also the Commercial Division of the High Court is one of the High Court divisions which are established by the high court registry rules. Though established by the said rules it is a division of the high court and not a sub registry. This new established division is very different from the two previously explained ones, because though it is established to deal with commercial matters the law establishing it has not granted it exclusive jurisdiction .It therefore exercises concurrent jurisdiction with the general division of the high court. The court has been established to deal with commercial matters.

In recent years there has been enactment of several statutes.  The enactment of statutes which establishes courts usually affect the pre existing system of jurisdiction. A good example is the Courts (Land Dispute Settlement) Act. This court has varied the pecuniary jurisdiction of courts over land matters, but with reference to the established courts/tribunals such as the District Land and Housing Tribunal which has been established by the law, deals with matters which the subject matter does not exceed 40 million shillings and the Ward Land Tribunal of which has a pecuniary jurisdiction of 5 million shillings. It should be known that this law has taken away the primary court and district court  ordinary jurisdiction over land matters and vested it to the afore said courts.


2.2 JURISDICTION AS TO GENERAL AND SPECIAL COURTS

Generally Tanzania has three tier court systems which comprises of the High court at the top, District court and Resident Magistrate Court at the middle and the Primary Court at the bottom.

The High Court by virtue of section 2(1) of JALA, has unlimited civil jurisdiction, territorially and pecuniary. The Resident Magistrate Court and District Court have concurrent jurisdiction over civil matters as provided under section 41 (1) of the Magistrate Court Act, 1984. District court and resident Magistrate court are established under sections 4 and 5 of the MCA respectively. The civil jurisdiction of the two courts before the recent statutory development is as follows.

The pecuniary jurisdiction of the district court in relation to immovable property is 150,000,000/=Tsh. And in respect of the subject matter capable of being estimated at money value, the courts can entertain such  matters  where the value does not exceed 100,000,000/=Tsh[6]. The Resident Magistrate having concurrent jurisdiction with District court could entertain matters of the same pecuniary value. It should be known that before the recent statutory development, the court could try any civil matter of any subject matter. And also the district court had exclusive jurisdiction in labour matters.

However, recently there has been statutory development which has affected the ordinary jurisdiction of courts in entertaining civil matters; for example, there have been established division in the High Court which have exclusive jurisdiction over land matters, another division vested with exclusive jurisdiction over labour matters and another division dealing with commercial matters. However, the main division of the high court has retained unlimited jurisdiction over other matters except those which the divisions have been given exclusive jurisdiction i.e. Land, labour and commercial divisions.

Also the exclusive jurisdiction of the district court to deal with labour matters has been taken away and it is now vested in the high court labour division by virtue of section 50 of the labour Institutions Act. This division has been granted exclusive jurisdiction over labour matters.

The jurisdiction of district court in respect of land matters has been also ousted under the provisions of section 3 of the Court (Land Dispute Settlement) Act which has established the high court division, the District land and housing tribunal and ward tribunal and village land council which has been vested with exclusive jurisdiction over land matters.

The pecuniary jurisdiction of the district court also has been specifically granted to the court by virtue of the Written Laws (Miscellaneous Amendments) Act 2004.under the law which amends the Magistrates Courts Act Section 40 adding that the court will deal with commercial matters and also that its jurisdiction on such matters in respect recovery of possession of immovable property where the value does not exceed fifty million and in respect of subject matter that can be estimated at money value the amount should not exceed thirty million.

Formally under section 18 (2) of the Magistrate Court Act the chief justice had power by order published in the government gazette to make rules which could give the primary court jurisdiction on the land matters especially on the administration of the estate of the deceased person provided that the deceased person at a time of death had a fixed place of a body within the area of the jurisdiction of the court and the law applicable in the administration or distribution to the estate is customary or Islamic law. The chief justice enacted these rules by virtue of GN No. 320 of 1964. So having the hierarchy of the courts on land matters from ward tribunals (special courts) the jurisdiction formally vested on the primary court is bared by this hierarchy of land courts at the matters would be directed towards these courts.


2.3 THE RECENT STATUTORY DEVELOPMENT AND CONCEPT OF JURISDICTION

The overview of the recent statutory development and its impact on the concept of jurisdiction is two folds. To determine whether the statutory development in Tanzania has thrown the concept of jurisdiction into disarray or not one has to look on the advantage and disadvantages of the creation of the special divisions of the courts.

2.3.1 Advantages of the noted statutory developments.

The statutory development has helped to provide specific courts to deal with specific cases arising from specific discipline for instance the land division which have exclusive jurisdiction in land matters. Thus the specialization of the courts in different disciplines shows the picture of the well organized court system. 

Also this development has facilitated the disposition of cases easily this is because before the introduction of these divisions all cases were confined in the general or ordinary jurisdiction of the courts. For instance the district courts apart from having exclusive jurisdiction on the labour matters such jurisdiction has been vested into the labour division hence reduce the burden to the district courts of dealing with numerous cases. This in fact has facilitated disposition of cases.

2.3.2 Disadvantages of the noted statutory developments

It is well settled law that the court of appeal is not established by the Act of the parliament however following the introduction of the Courts (Land Dispute Settlement) Act recognises the court of appeal as the court with jurisdiction over land matters. This recognition by section 3 (2) (e) of the Act brings inconsistence because as far as the jurisdiction of the courts because the court of appeal does not have original jurisdiction. What was supposed to be the concern of this provision was to deal with the courts of original jurisdiction. Whereas this section has lead into conflict as the court of appeal, the court of appeal has jurisdiction as provided for by the Appellate Jurisdiction Act, 1979.

In addition the establishment of the division of high court are acting as the bar towards the access to justice, for instance the high court commercial division has only sub registry in Arusha and main registry in Dar es Salaam. Also the high court land division has its establishment only in Dar es Salaam therefore the cases of  land matters in the other regions have to wait the circuit movement of the judges from Dar es salaam which acts as the delay as it is not easy for them to circulate in the country at appropriate time.

The exclusive jurisdiction vested in the general division of the High Court for instance exclusive jurisdiction on bankruptcy, probate matters in exclusion of small estate, company especial in insolvency and winding up and admiralty plays as disadvantage as it leaves only one step for the appeal by the one having suit to be dealt by this court.

The recent development of statute has a disadvantage in that, it has witnessed the establishment of several courts with exclusive jurisdiction this has caused confusion to people as they fail to know exactly that as to which court they should institute their case, this may result into dismissal of cases. This is a result of people’s ignorance in law and changes therein.

Further, another disadvantage due to the development of the commercial court it has been too cost full for people to file suits in commercial courts hence deny peoples rights as they cannot afford such cost to institute their cases. On top of that the Commercial Division of the High Court as it has concurrent jurisdiction with other divisions of the High Court it appears that case which were supposed to be instituted in this division of the High Court can either be instituted in the Land Division[7] or in the General Division of the High Court.

There is another problem as far as the jurisdiction of the courts as it appears apparently that under section 40 (2) (a) and (b) of the Magistrate Court Act that the District court has pecuniary jurisdiction over immovable property as it is 150,000,000 and 100,000,000 for the other properties where then subject matter is capable of being estimated at money value.[8]From the provisions of this Act the District Court is having the jurisdiction on the immovable and other properties as given by these laws.

At the same time the District Court has jurisdiction over the commercial matters where in section 2 of the Magistrate court there the inclusion of the term Commercial Case[9]  whereby the court has jurisdiction on the commercial cases in which the district court has jurisdiction on proceeding of immovable property not exceeding fifty million, and proceeding in which the value can be estimated at a money of the subject matter not exceeding thirty million. The problem with these laws is that it appears difficult on the part of jurisdiction because people found it difficult as to which court to institute the suit whether to be instituted in the district court or the land division as the law deals with the immovable property, or the part of the district court with the commercial division.


3.0 CONCLUSION

To conclude, generally the law of Tanzania is the law which has not reached the stage of its development in which the community can come up with the conclusion that there is the settled law in Tanzania. Following the present court system it is evidenced that even the jurisdiction vested to some courts by either the statutes establishing them or other statutes have experienced either the express bar of jurisdiction or the bar of such jurisdiction by general implication. This is because the adopted statutes from the common law are under transformation to suit the situation of our local circumstances.

The present statutory development therefore apart from facilitating the attainment of justice in the society its impact has affected the existed jurisdiction of the courts that in a large part of the country due to ignorance of law it has become difficult for the society to comprehend with the new enactments as far as the jurisdiction of the courts is concerned. All in all the statutory development in Tanzania is aimed not to outer jurisdiction of the courts but the main purpose is to facilitate the attainment of justice by adopting the system of specialization. 



REFERENCES

1.  Written Laws (Miscellaneous Amendment) Act No 3 of 2002
2.   Civil Procedure,5th Ed, p 33
3.    www.ilo.org




Citations

[1]  C.K. Takwani, Civil Procedure,5th Ed, p 33
[2]  Official Trustee V Sachindra AIR 1969 SC 823 (827):(1969) 3 SCR 92
[3]  Raja Soap Factory V S.P Shantharaj A.I.R (1965) SC 1449:(1965) 2 SCR 800
[4]  Civil Appeal 40/2000.
[5]  Cap 358 R.E 2002
[6] This is provided by the Written Laws (Miscellaneous Amendment) Act No 3 of 2002
[7]  The cases involving securities like mortgages and other cases which are involving commercial activities but they involve securities like land
[8]  See the Written Laws (Miscellaneous Amendments) Act No 3 of 2002
[9]  In the Written Laws (Miscellaneous Amendment) Act No 4 of 2004, commercial means a civil case involving a matter considered to be of commercial significance including but not limited to [See those instances provided under roman I to roman xi) 
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Importance of framing issues and its consequences in civil procedure

civil , evidence

 

Qn; The failure to frame issues amounts to procedure irregularity and not illegality. In the light of this contention, outline the practical importance of framing issues and consequences of failure to frame issues.

 

 

  1. INTRODUCTION.

 

In every civil case, it is a common practice that issues are to be framed after the parties have presented their pleadings. The function of pleading is to ensure that the questions which are in controversy between the parties should be clearly ascertained so that each party is aware of what the other party contends and also enables the court to know what questions it has to decide in the particular suit[1]. In the case of JANMOHAMED UMERDIN V. HUSSEIN AMARSHI AND OTHERS[2] it was stated that the framing of issues is the rule that governs the conduct of a civil proceeding which neither the court nor counsel is entitled to leave out of account.

 

The duty of raising the issues rests, under the Civil Procedure Code, on the court. It should itself go through the pleadings and not depend merely on the draft issues filled by the parties[3]. But though the duty to frame issues is cast on the court, the responsibility for framing them should be shared by the pleaders appearing for either of the parties[4].

 

Issues are those questions on which the parties are not agreed and which the court is called upon to decide. Issues can also be defined as a point in question at the conclusion of the pleading between the contending parties in an action.  Issues are to be frame in respect only of those facts which have been alleged by one party and either denied or not admitted by the other party[5], that is to say, a material proposition of fact or law is asserted or affirmed by one party but denied by the other[6]. Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue[7].

 

The issues can be of two kinds or types, that is, they may be issues of law or issues of fact. The issues of fact are those which their existence depend on evidence while issues of law on the other hand are legal conclusions derived at after application of the law to the facts which have been proved.

 

There are some circumstances in which court may be confronted with issues of both fact and law. Where the court is of the opinion that the suit or any part of it may be disposed of on the issues of law only, the court must try those issues first. In which case, it may, if it thinks fit, postpone the recording of the issues of fact until after it has disposed of those issues of law. In the case of SINGIDA REGIONAL TRADING COMPANY V. TANZANIA POST AND TELECOMMUNICATION CORPORATION[8] the court held inter alia that since the issue of law went to the root of the suit, the court had first to determine that issue of law.

 

If the court comes to the conclusion that the decision on the preliminary issues of law will dispose of the entire suit, it will postpone the issues of fact and decide on the issues of law, and where it turns out that issues of law suffice the disposition of the entire case then the issues of fact will be left out.

 

 

  1. Framing of Issues.

 

The assertion that failure to frame issues amounts to procedure irregularity and not illegality is true. This point can be substantiated by the case of NORMAN V. OVERSEAS MOTOR TRANSPORT (TANGANYIKA LTD)[9] which stated that the failure to frame issues is an irregularity which is not fatal so long as the parties at the trial knew what is the real question between them, and evidence is taken on it and the court considers it.

 

 

2.1 Importance of framing issues.

 

The framing of issues is a very important step because the outcome of the case will largely depend on issues that have been framed. The following paragraphs show why courts should frame issues and the importance of doing so.

 

  1. The issues guide the parties on how to go about in adducing evidence. A party will not be allowed to adduce evidence which does not go on proving or disapproving the issues framed. Such evidence will be irrelevant and hence inadmissible. Therefore, the framing of issues is very important because it will help courts to save time and costs for hearing matters which are irrelevant to the case.

 

  1. Apart from guiding the parties on how to go about in adducing evidence, the framing of issues helps the court to address its mind to specific issues, that is, confines the court to specific areas in which the issues have been framed. This was the view of the case of NKALUBO V. KABIRIGE[10]. However, there is an exception to this general rule in case the parties knew of the issues but they were not pleaded.

 

  1. The other importance of framing issues relates to appeals. If the case goes to appeal, the appellate court has to confine itself to issues framed in the trial court. The court of appeal cannot determine issues which were not framed during the trial but it shall deal with issues of law though they were not framed or were abandoned during the trial[11]. 

 

 

2.2 Consequences of failure to frame issues.

 

The failure or omission of framing issues may have two consequences. At the first place, it may be regarded as procedural irregularity which is not necessarily fatal to the proceedings[12]; and the other hand if the court is of the opinion that the failure or omission of framing issues prejudices the parties, such omission will be fatal[13]. 

 

The court will not hold that the omission or failure to frame issues was prejudicial to the parties if it is of the opinion that despite the fact that no issues were framed, the parties knew what was at issue and produce evidence in what they knew was at issue. This was also stated in AGRO INDUSTRIES LTD V. ATTORNEY GENERAL[14] where it was held that;

“when a trial court allows parties to address it on any issues, the court must conclusively determine those issues, notwithstanding that the issues were not in the pleadings”.

 

Omission or failure to frame issues shall be regarded as prejudicial to the parties where it results into parties failing to direct evidence to the issues. In such a case if any injustice occurs it is incurable except by quashing the decision of the court. This point was discussed in the case of JOSEPH MARCO V. PASCAL RWYEMAMU[15].        

 

 

3.0 Conclusion.

Basing on what we have discussed above, we are of the opinion that the framing of issues is very important and that the failure to do the same may either be illegality or procedure irregularity depending on the facts of each case.  Where such omission or failure to frame issue leads to injustice, then the court will quash the decision made basing on such omission.

 

#qn

 


[1] B.D. Chipeta, (2002), Civil Procedure in Tanzania, p.166

[2] (1953) 20 E.A.C.A. 41

[3] RUK-UL-MULK SYED ABDUL WAJID V. R VISWANATHAN AIR 1950 MIS 33 (FB)

[4] BHASKAR V. NARANDAS (1950) 608

[5]  FATEH MUHAMMAD V. IMAM-UD-DIN (1920) 2 LAH LJ 188.

[6] the First Schedule to the Civil Procedure Code, 1966, Order XIV Rule 1(1) when read together with Order XIV Rule 1(2)

[7] Ibid, Order XIV Rule1(3)

[8] [1979] LRT n. 11

[9] [1959] E.A 131

[10] [1973] E.A 103 at 105

[11] SHAIKH MAKBUL V. UNION OF INDIA AIR 1960 Ori 146.

[12] MUHAMMAD YUSUF V. MUHAMMAD YUSUF AIR 1958 MAD 527

[13] WALI SINGH V. SOHAN SINGH AIR 1997 CaL 386

[14] [1994] TLR 43 (CA).

[15] [1977]LRT 59

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