MZUMBE UNIVERSITY. (Chuo Kikuu Mzumbe). FACULTY OF LA ! CIVIL "ROCE#URE! (LA ! $%&) LECTURES NOTES! Theme'! A. "()*ie' To Sui*'.

B. +oi,-e) O. "()*ie' /e,e)(001. C. +oi,-e) O. "0(i,*i..'. #. +oi,-e) O. #e.e,-(,*'. 2. "ARTIES TO SUITS! AN OVERVIEW; The phrase Party To Suit3 derives its meaning from the combination of two terms namel ; Party! and 4Suit!" #owever$ neither of the terms is defined b the %ivil &roced're %ode (%ap" )) R"E *++*, which is the main stat'te governing civil proced're in Tan-ania" A part to s'it ma also be referred to as a part to co'rt proceedings" The phrase Party To Court Proceedings3 ma therefore be ill'strated as a character or personality in court proceedings, be it criminal or civil " .'t for the p'rposes of this address$ we are more concerned with %ivil &roceedings" %ivil proceedings$ in most cases have characters in two opposing sides$ s'ch characters are; a plaintiff on one hand and a defendant on the other in a s'it$ b't in an application we ma have an applicant on one side and a respondent on the other$ the same wa in an appeal we have an
/

appellant on one hand and a respondent on the other" All these personalities mentioned above constit'te parties to the respective proceedings" The plaintiff$ the applicant and the appellant are persons who instit'te the respective proceedings against the defendant or respondents depending on the nat're of the proceedings$ in view of see0ing some remedies$ orders$ directives etc" W#AT I1 A 12IT3 It m'st however$ be noted here that co'rt proceedings mentioned above differ from one another" The main concern here is on proceedings in respect of s'its as differentiated from applications and appeals" It is th's important for a law er to 0now the legal meaning of the term 4Sui*3 before he 0nows abo't a party to a suit. Once again$ the term 4Sui*3 is not defined b %ap" ))" The #igh %o'rt however$ in 4211O4A TOWN %O2N1E5 v" 6A11A42 made a good attempt in defining the term in the following effect; that it entails of proceedings commenced either b presentation of a plaint or which is commenced in an manner prescribed b the r'les of the %ivil &roced're %ode" At least this definition differentiates a s'it from an application which is normall commenced b wa of filling a %hamber 1'mmons (or b an oral pra er, and an appeal which is la'nched b filling a memorand'm or a petition of appeal" W#O 4A7 .E A &ART7 TO 12IT; Order I of %ap" )) governs matters relating to parties to s'its$ and according to R'les / and ) of the Order$ a part to s'it$ m'st be a person and not an other creat're" Again$ the term Person! is not defined b %ap" ))$ b't 1" 8 of the Interpretation of 5aws Act% defines the term as follows; 9any word or expression descriptive of a person and includes a public body, company, or association or body of persons, corporate or unincorporated"
/

. 526728 9C#. N. 2:: ((* ;(<e 2%6=2$>). . (C(;. 2? R.E. %>>%).

The term &erson! ma also have the following ordinar e:pressions$ i" e" People (in most general conte:ts,$ a human being regarded as an individual, an individual characterized by a preference or liking for a specified thing, an individuals body, a character in a play or story etc.3 ;ollowing the above s'ggested definitions a h'man being is a person and th's can be a part to s'it" Also some instit'tions$ tho'gh not nat'ral persons can be considered as legal persons and th's can be parties to s'its$ the can s'e or be s'ed in their own names" Entities li0e %o<Operative 1ocieties=2nions are an e:ample of s'ch instit'tions" In RA4A>#ANI 6IN7A6A5I ? * OT#ER1 v" A.>2 4211A .O6ERA & it was held that s'ing leaders of a %o<operative 'nion in their own names and %apacities (instead of s'ing the bod itself, is improper in law" In another occasion it was held to the effect that s'ing leaders of legall recogni-ed gro'ps in their own names on behalf of the gro'p is an error$ see @24A ." 6A>A5A v" 5A2RENT 4N6AN>E"@ Again$ it was emphasi-ed in NATIONA5 >I1TRI.2TION 5T> v" NATIONA5 2NION O; TANAAN7I6A WOR6ER1A that instit'tions li0e Trade 2nions can s'e or be s'ed in their own names" As to firms$ the law is to the effect that a s'it can be filed in the name of a firm onl if the firm is registered 'nder the .'siness Names (Registration, Ordinance$7 otherwise it m'st be filed in the parties (owners of the firm, own names$ see A6ENA A>O6OB1 %#A4.ER1 v" 4O#A4E> 4AAANAA": As to villages (or 2Camaa villages,$ the law is to the effect that$ If a village is not proved to be having a legal personalit $ a
)

. Co,Bi'e OC.o)- E,<0i'h #iB*io,()1 (Te,*h E-i*io,)? OC.o)- U,iDe)'i*1 ")e''? /)e(* C0()e,-o, S*)ee*? OC.o)- OE%? %#"? UK (O, C#=ROM? %>>2? Ve)'io, 2.2.) . 9C.CIV. A""EAL NO! @7o. 26::? AT #AR ES SALAAM. (u,)e;o)*e-). . 526:$8 TLR 2>$ (9C) . (2672) 9C#. 2%. . (,oF The Bu'i,e'' N(me' (Re<i'*)(*io,) AB*? C(;. %2$ R.E. %>>%)?

. (26:>) TLR. 2$&.

s'it cannot be maintained against it in its own name; see 4.ARI6A 2@A4AA VI55AAE v" N7AN>A 4A5I4I"6 In the same vain$ the Aovernment of Tan-ania (the %entral Aovernment, ma s'e or be s'ed in its own name or thro'gh the Attorne Aeneral as per the proced're provided for 'nder the Aovernment &roceedings Act"/+ Also 5ocal Aovernment or 2rban A'thorities ma s'e or be s'ed in their own respective names" In case the legall recognised instit'tions cease to e:ist (e" g" &olitical &arties, while it has a pending matter in co'rt$ C'stice reH'ires that interested members be notified of the motion before the co'rt and be afforded an opport'nit to be heard$ see REV" %#RI1TO&#ER 4TI6I5A ? ANOT#ER v" T#E #ON" ATTORNE7 AENERA5 ? ANOT#ER$ 22. %A&A%IT7 O; A &ART7 TO 12E; Tho'gh the law sa s a part to s'it m'st be a person$ there is an e:ception to this general r'le$ not ever person H'alifies to be a direct<part to s'it; some persons are disH'alified from being direct<parties to s'its in themselves 'nless some conditions are met first" A person of 'nso'nd mind for e:ample$ cannot s'e on himself 'nless he does so thro'gh a ne:t friend$ b't proof that he is of 'nso'nd mind m'st be made$ otherwise the s'it is liable for dismissal$ see @ (OR1E ., (.7 #ER NEIT ;RIEN>, V @"2% 4inors are also incapacitated parties to s'its$ the law is to the effect that a minor can s'e b his ne:t friend or wait 'ntil he reaches the age of maCorit $ see AATI 4ARWA v" 6I1IRI 62.7O"2$ The decision in @O#N 4AAEN>O v" N"E"AOVANI2& not onl 'nderscores this stance of the law
J

. (267@) LRT. ,. A$. . C(;. @ R.E. %>>%. . COURT OF A""EAL CIV. A""EAL NO! %:o. 266@? AT #() e' S(0((m. (u,)e;o)*e-). . 526@%8 % ALL ER 22%6. . 526778 LRT. ,. 2$. . (267$) LRT. A>. 8

/+

//

/*

/)

/8

b't also provides for the proced're in which a minor can s'e thro'gh his ne:t friend" Another gro'p of persons to remember here is that of Administrators for Estates of deceased persons$ an administrator can s'e or be s'ed on behalf of a deceased person onl if a letter appointing him administrator is proved$ see; @O#N &ETRO v" &ETER %#I&A6A.2@ INTERE1T1 O; A &ART7 TO 12IT; The law does not give a free room for an bod to pose as a part to s'it; a part to s'it m'st be a person interested in the s'bCect matter of the s'it" A person who intends to file a s'it for e:ample$ m'st firs be legall interested in the s'bCect matter of the s'it$ or he m'st have what the law refers to as a locus standi (i "e he m'st show that his interests have been interfered,$ see the #igh %o'rt decision in 52@2NA" 1" .A5ONKI$ 1ENIOR v" REAI1TERE> TR21TEE1 O; %#A4A %#A 4A&IN>2KI"2A It was also 'nderscored in &#I5I& ANANIA 4A1A1I v" RET2RNINA O;;I%ER N@O4.E NORT# %ON1TIT2EN%7 ? * OT#ER127 *hat to be Coined as a part to a legal proceedings a person m'st have a legal interest$ that is to sa ; an interest which the law recogni-es in the s'bCect matter of the proceedings$ the &#I5I& ANANIA 4A1A1IB1 case followed an English decision in Re" T" A" ;AR.ANIN>2 1TRIE A" A" AAREE4ENT"2: It follows therefore that$ an 'ninterested person to the s'bCect matter of the s'it cannot in law become a proper part to the s'it$ in .ARNA.A1 A5&#ON%E v" 4E56IOR7 45ERA"26 In cementing this stance? the #igh %o'rt was of the views that$ where co'rt proceedings are cond'cted b a
/D

. 9C CIVIL A""EAL NO!:2 o. 266A? AT M ANZA. (u,)e;o)*e-) . 5266A8 TLR %>$. 9C. MISC. CIV. CAUSE NO! 7 o. 266@ AT SON/EA. (u,)e;o)*e-). . (26&$) % ALL E.R. @%$8. . 9C. "C. CIV. A""EAL NO! 7o. 266%? AT ARUS9A. (u,)e;o)*e-).

/E

/F

/G

/J

person who lac0s locus standi$ then the proceedings becomes a n'llit and m'st be H'ashed" %. +OIN#ER OF "ARTIES /ENERALLY! AN OVERVIEW; A part to a s'it$ be it plaintiff or defendant can stand alone in the cond'ct of the s'it or ma act in conC'nction with another or others$ when the latter proposition is applicable then the law considers the sit'ation as a Coinder of parties to the s'it" There ma $ therefore$ be a Coinder of plaintiffs and or a Coinder of defendants in civil proceedings depending on the circ'mstances of each case" AI4 O; T#E R25E1 IN ;AVO2R O; @OIN>ER O; &ARTIE1; The r'les in respect of Coinder of parties are targeted to avoid inconveniences$ especiall m'ltiplicit of s'its in respect of the same parties and s'bCect matter" This view was envisaged b the %o'rt of Appeal in "ROVINC9AN#RA MO9ANLAL MEV#A G % OT9ERS D. MU9IMBILI ME#ICAL CENTER G ANOT9ER%> in which said decision the %o'rt observed that; if an application to be joined in a suit is necessary for avoiding multiplicity of suit, it is granted by the court. %o'rts of law however$ are ca'tioned to properl observe the proced'res in respect of Coining parties to co'rt proceedings so as to avoid 'nnecessar inconveniences to other persons" In one occasion for e:ample$ a s'bordinate co'rt C'st e:amined a person (resisting to release deceased propert in probate proceedings, who was in attendance in co'rt and then made him a respondent to the proceedings before it (the co'rt,$ it was held on an appellate stage that s'ch Coined part to proceedings was not properl Coined$ see 4ARIA4 A557 v" 7212;2 4&E4.E5E"%2 @OIN>ER O; &ARTIE1 ON A&&EA51"
*+

. CIVIL REFERENCE NO!A OF %>>$? AT #AR ES SALAAM. (u,)e;o)*e-) . 9C? EET. +URI#ICTION CIVIL A""EAL NO! &A OF 266A? AT #AR ES SALAAM (u,)e;o)*e-)

*/

Once a person is not a part to s'it$ he remains in that position 'nless he applies to the co'rt and obtains leave to be Coined as a part " The law is to the effect that$ s'ch a person$ a non<part to the s'it$ cannot be Coined as a part on an appellate stage" In 4AA2 >I1TRI%T %O2N%I5 AN> ANOT#ER v 4#AN>E N6WA.I%% the #igh %o'rt made remar0s to 'nderscore this attit'de$ it said; o provision of the law allows the joining of a party as appellant in appeal proceedings who had not been a party to the original proceedings whose judgment and decree were the subject of the appeal! @2>AE4ENT IN 12IT1 INVO5VINA @OIN>ER O; &ARTIE1; The fact that there is a Coinder of parties in a s'it does not in law necessitate a similar decision b the co'rt in respect of the Coined parties of the same competing side$ 'nder this sit'ation one or more plaintiffs ma loose the case while another or more ma emerge winners$ the same wa $ a defendant or more of them ma be fo'nd liable while another or others ma be held not liable" This is the spirit embodied into the provisions of Order / r'le 8 of %ap" ))" RE&RE1ENTATIVE 12IT1; A, ODe)DieF! Where more than one person to s'it is to be involved in an action$ the law permits a st le in which one or more part to s'it ma s'e or defend the s'it on behalf of all other interested persons" This 0ind of a s'it is technicall 0nown in law as 4( Re;)e'e,*(*iDe Sui*3 LOrder /$ r'le G (/, of %ap" )),M" This proced're is an alternative to the common proced're$ in which said proced're each part prosec'tes or defends his interests in the case" In other words the techniH'e in respect of 4( Re;)e'e,*(*iDe Sui*3 in a wa allows the cond'ct of the s'it b pro: " Aim o. *he Ru0e'! &racticall $ it is an obvio's fact that a s'it involving several parties will need more time and costs than a s'it involving one part in each of the competing sides" In a m'ltipart part <s'it$ more time and costs will be reH'ired in drafting necessar doc'ments$ service of the doc'ments and
**

. 526678 TLR %:A F

s'mmonses$ prod'ction of evidence etc" This r'le is therefore intended to avoid inconveniences$ costs and wastage of time on the part of both the co'rt and parties to the s'it" Co,-i*io,' .o) I,Doki,< *he Ru0e' ! The r'les in respect of the method of "epresentative suits$ will not appl in a s'it 'nless some maCor conditions are met first$ the conditions m'st be met c'm'lativel and not alternativel $ and these conditions are; a. #he intended representative$s and the person$s to be represented must have the same interest$s in the subject matter of the intended suit. b. #hat the court must first give permission %leave& to the representation, hence a person intending to represent others must first apply and obtain the leave before he proceeds to represent the others. #he normal procedure for applications should be followed in an application for the purposes of this rule 'i. e. by filling a chamber summons supported by an affidavit or by an oral application as provided for under (rder )*+++ %,& of the -ap. ../ c. #he representative$s must be suing or defending the case not on his$their own but on behalf or for the benefit of all persons so interested in the suit. d. otice of the institution of the suit must first be given by the court to all persons to be represented either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct. Le<(0 E..eB* .o) F(i0u)e *o Mee* *he Co,-i*io,'! An fail're to compl with the conditions stip'lated above is fatal to the s'it and will vitiate it$ see$ %#RI1TO&#ER AA1&ER AN> OT#ER1 v TANKANIA #AR.O2R1 A2T#ORIT7"%$Again$ in 6IRIAITI 1A1I v"
*)

. 526678 TLR $>2 (9C).

AEN62R2 VI55AAE 4ANAAER ? E OT#ER1%& it was observed that filing a representative s'it is not a matter of right$ one m'st first obtain leave of the co'rt and the co'rt m'st give notice to all the interested persons to the s'it$ be it plaintiffs or defendants" The 6IRIAITIBs case followed the decision in &I21 41IAWA AN> * OT#ER1 v" T#E 1E%RETAR7 O; 6I@I@I %#A 2@A4AA 4ARO%#A.%@ The applicabilit of the conditions in respect of filing representative s'its e:tend to emplo ment disp'tes$ hence the fail're to compl with the conditions in this nat're of proceedings is li0ewise$ lethal to s'ch proceedings; see the observation b the %o'rt of Appeal in 6"@" 4OTOR1 AN> ) OT#ER1 V1" RI%#AR> 6I1#A4.A AN> OT#ER1"%A R(*io,(0e o. *he Co,-i*io,' .o) Fi00i,< ( Re;)e'e,*(*iDe Sui*! There is C'stification in the conditions stip'lated above beca'se in a representative s'it$ the co'rt deals with rights of persons who are not before it$ there is th's a need for the co'rt to be strict in allowing the filling of s'ch s'its so as to properl safeg'ard the rights of the represented persons$ see the envisaging in of the #igh %o'rt in A>E5INA %#2A252 AN> JJ OT#ER1 v" T#E NATIONA5 EIA4INATION %O2N%I5 O; TANKANIA AN> T#E ATTORNE7 AENERA5 .%7 The #igh %o'rt in A>E5INA %#2A252Bs case following the decision in 52@2NA"1" .A5ONKI$ 1ENIOR (s'pra," Again$ the Tan-ania %o'rt Of Appeal$ in 6"@" 4OTOR1 AN> ) OT#ER1 (s'pra,$ gave f'rther gro'nds for vindicating the conditions 'nder the r'le when it said thro'gh Ki'(,<(? +A. (as he then was, and I H'ote; #he rationale for this view %meaning the contents of (rder 0 "ule 1 (f #he -ode& is fairly apparent. 2here for instance, a person comes forward and seeks to sue on behalf of other
*8

. 9C. MISC. CIV. A""L. NO! 7& o. %>>$? AT M ANZA. (u,)e;o)*e-). . .(2676) LRT. N. 2$. . CIVIL A""EAL NO! 7& OF 2666? AT #AR ES SALAAM (u,)e;o)*e-). .9C? MISC. CIVIL CAUSE NO! @@ OF %>>@? AT #AR=ES=SALAAM. (u,)e;o)*e-).

*D

*E

*F

persons, those other persons might be dead, non3existent or otherwise fictitious. 4lse he might purport to sue on behalf of persons who have not, in fact, authorised him to do so. If this is not checked it can lead to undesirable consequences . #he court can exclude such possibilities only by granting leave to the representative to sue on behalf of person whom he must satisfy the court that they do exist and that they have duly mandated him to sue on their behalf %bold emphasis is mine&. A Cou)* Be.o)e hiBh To Lo-<e (, A;;0iB(*io,' .o) Le(De *o Fi0e ( Re;)e'e,*(*iDe Sui*!

In see0ing the leave for filling a representative s'it$ the intended representative=s m'st file the application in a co'rt which will entertain the intended Representative 1'it and not in an other co'rt$ see 421A #A4I1I 1#A# ? * OT#ER1 v" >AR<E1< 1A5AA4 %IT7 %O2N%I5.%: The logic behind this reH'irement is that$ the co'rt which inH'ires into the application and grants the leave will be in a better position to conceive the atmosphere which necessitated the instit'tion of the Representative 1'it than the co'rt which wo'ld determine the act'al s'it witho't first inH'iring and granting the leave" Ri<h*' o. *he Re;)e'e,*e- "()*ie' *o be Re=+oi,e- (' #i)eB* "()*ie' *o *he Re;)e'e,*(*iDe Sui* Where a representative s'it has been accordingl filed$ the represented persons become$ in a wa $ indirect<parties to the s'it" #owever$ the law does not close the doors against them in case the wish to be re<Coined as direct< parties to the s'it$ s'ch persons are at libert to appl to the co'rt to be re< Coined LOrder / r'le G (*, of %ap" ))M" 4I1@OIN>ER AN> NON<@OIN>ER O; &ARTIE1 TO 12IT1; A, ODe)DieF; A misCoinder of parties to s'it is a sit'ation where parties to a s'it are improperl impleaded or Coined$ and a non<Coinder of a part to s'it is an omission to implead or Coin a necessar or proper person as a part to s'it"
*G

. 5266A8TLR %>2 /+

E..eB* o. Mi'Hoi,-e) (,- No,=Hoi,-e) o. "()*ie'! The effect of both$ misCoinder and non<Coinder of parties is in most cases not fatal eno'gh to vitiate the s'it" Order / r'le J of %ap" )) provides that no s'it shall be defeated b reason of the misCoinder or non<Coinder of parties$ and the co'rt ma in ever s'it deal with the matter in controvers so far as regards the right and interests of the parties act'all before it" The decision in >R" 4WI6WA.E 4" 4AAERE v" T#E ATTORNE7 AENERA5*J 'nderscore this stance" There are some e:ceptions in this general r'le however; i" e" where a non<Coinder of a part to s'it ma occasion diffic'lties in deciding the real controvers between the parties in the s'it$ then the non<Coinder becomes a serio's irreg'larit to the s'it" In @24A ." 6A>A5A v 5A2RENT 4N6AN>E (s'pra, for e:ample$ it was held that in a s'it for recover of land sold to a third part $ the b' er sho'ld be Coined with the seller as a necessar part (defendant,; and f'rther that a non<Coinder will be fatal to the proceedings" ObHeB*io, To Mi'Hoi,-e) (,- No,=+oi,-e) O. "()*ie'! The law is to the effect that obCections to 4isCoinder or Non< Coinder of parties (if an ,$ shall be ta0en at the earliest possible opport'nit and$ in all cases where iss'es are settled$ at or before s'ch settlement 'nless the gro'nd of obCection has s'bseH'entl arisen; and an s'ch obCection not so ta0en shall be deemed to have been waived (Order / r'le /) of %ap" ))," This r'le is practicall ver significant beca'se it enables speed determination of s'its b 0eeping awa from 'nnecessar dilator obCections on gro'nds of mis<Coinder or non<Coinder of parties" The law is f'rther to the effect that$ where there is a gen'ine obCection on gro'nds of mis<Coinder or non<Coinder and it is s'stained$ the co'rt sho'ld not dismiss the s'it$ it ma order amendment of the pleadings b stri0ing o't the improperl Coined names or b Coining into the s'it the names left behind b the pleadings" %O2RTB1 &OWER1 IN 4I1<@OIN>ER1 AN> NON<@OIN>ER1"
*J

. 9C? CIVIL A""EAL NO!22I266&!AT M ANZA. (u,)e;o)*e-). //

As observed above$ the law empowers the co'rt to order that the name of an part to s'it (plaintiff or defendant, improperl Coined$ be str'c0 o't$ and that the name of an person who o'ght to have been Coined$ or whose presence before the co'rt ma be necessar in order to enable the co'rt effect'all and completel to adC'dicate 'pon and settle all the H'estions involved in the s'it$ be added" The co'rt ma e:ercise these powers at an stage of the s'it$ and it can do so suo motu or 'pon an application b either part " In e:ercising these powers$ the co'rt does so on s'ch terms as ma appear C'st to it LOrder /$ r'le /+ (*,M" A&&EARAN%E O; &ARTIE1 .7 RE&RE1ENTATION; Where there are more than one part (plaintiff or defendant, in a s'it$ an one or more of them ma be a'thori-ed b an other of them to appear$ plead or act for s'ch others in an proceeding LOrder / r'le /* (/, and (*, of %ap" ))M" According to this r'le$ there are conditions precedents to be met before parties to s'it enCo this option$ these incl'de; a. #here must exist an authority for one or more parties to represent another or others. b. #he authority to represent others must be in writing. c. 5uch an authority must be signed by the party or parties giving it. d. #he 6uthority for the representation must be filed in court. A distinction m'st however$ be notable between the proposition 'nder Order / r'le G of %ap" )) (in respect of Representative 1'its, on one side and the proposition 'nder Order / r'le /* (/, and (*, of %ap" )) on the other" While the former r'le provides the proced're for instit'ting a s'it in a representative fashion$ the latter governs a sit'ation where a s'it involving several parties (plaintiffs or defendants, has alread been filed b them Cointl in a normal proced're (apart from the Representative 1'it st le,$ b't not all the parties intend to act in respect of the cond'ct of the s'it$ so the opt to be represented b one or more of them"

/*

In the former r'le therefore$ the representation begins from the stage of instit'ting the s'it while in the latter r'le$ the representation comes a bit latter$ i" e" after the s'it has been instit'ted b all the parties Cointl " Illustrative exam le! i! 2here "# $# C# % and 7& are entitled to sue against 7', and 7" alone seeks and obtains leave from the court to file and conduct the suit on behalf and for the benefit of all the intended plaintiffs named above, 7" will be acting according to the terms of (rder 0 "ule 1 of -ap. .., and the resulting suit is indeed a "epresentative 5uit in law. Illustrative exam le! ii! 2here "# $# C# % and 7& are entitled to sue against 7', and they all file the suit jointly, but latter they find it proper to let 7 " conduct the case on behalf and for the benefit of all the plaintiffs, in which said case the rest give authority to 7"# then the group of plaintiffs will be acting according to the melody of (rder 0 rule 0, %0& and %,& of -ap. ... #his matter may not be termed as a "epresentative 5uit in law. $! +OIN#ER OF "LAINTIFFS! AN OVERVIEW; Order I r'le / of %ap" ))$ provides that all persons ma Coin in one s'it as plaintiffs in whom an right to relief in respect of or arising o't of the same act or transaction or series of acts or transactions is alleged to e:ist$ whether Cointl $ severall or in the alternative where$ if s'ch persons bro'ght separate s'its$ an common H'estion of law or fact wo'ld arise" The distinction between plaintiffs s'ing jointly on one hand and severally on the other m'st be clear" %ON>ITION1 ;OR @OIN>ER O; &5AINTI;;1; According to the r'le cited above$ some conditions m'st be met c'm'lativel before plaintiffs are Coined in one s'it$ a foreign decision in 1TRO2> v" 5AW1ON)+ 'nderscores the conditions as follows;

)+

. (2:6:) % J. B. && /)

a& 4ach of the plaintiff must be entitled to sue the same defendant$s b& #he right to the remedy in respect of each plaintiff must be arising from the same act or transaction or a series of transactions. c& #here must be a common 8uestion of law or fact to the extent that if they filed separate suits any common 8uestion of law or fact would arise The conditions envisaged above can be easil conceived b considering the following ill'strative e:amples; Illustrative exam le! i! " negligently discharges ammunitions from his gun, as a result $ and C get injured, then $ and C can be properly joined as plaintiffs in a suit against " for damages, this is so because all the conditions branded a& 3 c& above have been cumulatively met. Illustrative exam le! ii! " negligently discharges ammunitions from his gun, as a result $ and C get injured( 6 month latter " fires his gun in the same manner and injures %. 9nder the circumstances % can not be properly joined with $ and C as plaintiffs in a suit against " for damages, the grounds being that, only the conditions named a& and c& %above& have been met while the condition labelled b& has not been achieved. %O2RT &OWER1 IN @OIN>ER O; &5AINTI;;1; As remar0ed before$ a co'rt of law is vested with powers to ma0e some orders for the sa0e of C'stice as far as Coinder of plaintiffs in a s'it is concerned$ e:amples of s'ch powers of the co'rt are fo'nd in the following sit'ations; +oi,-e) O. "0(i,*i..' C(u'i,< Emb())(''me,* A,- #e0(1 O. The Sui*! Where it appears to the co'rt that an Coinder of plaintiffs ma embarrass or dela the trial of the s'it$ the co'rt ma p't the plaintiffs to
/8

their election or order separate trials or ma0e s'ch other orders so as to e:pedite the finali-ation of the s'it (Order I r'le * of %ap" ))," Apparentl this r'le 'nderlines the s'bsistence of inherent powers clothed to the %o'rt b 1" JD of %ap" ))" Sui* I, N(me O. )o,< o) #oub*.u0 "0(i,*i..

According to Order / r'le /+ (/, of %ap" ))$ the co'rt is vested with powers to order an other person to be s'bstit'ted or added as plaintiff 'pon s'ch terms as the co'rt thin0s C'st where a s'it has been instit'ted in the name of the wrong person as plaintiff or where it is do'btf'l whether it has been instit'ted in the name of the right plaintiff" The co'rt ma e:ercise these powers at an stage of the s'it so long as it is satisfied that the s'it has been so instit'ted thro'gh a bona fide mista0e and it is necessar for the determination of the real matter in disp'te so to do" Once more$ this r'le is a testament of the powers of the co'rt 'nder 1" JD of %ap" ))" %ON1ENT O; &ER1ON1 TO .E @OINE> A1 &5AINTI;;1 OR NEIT ;RIEN>1" >espite the powers vested to the co'rt 'nder Order / r'le /+ (/, of %ap" ))$ a person cannot be Coined to a s'it as plaintiff or Ne:t ;riend of the plaintiff 'nless he consents LOrder / r'le /+ (),M" This r'le 'nderscores the stance of the law that; to be Coined as a part to legal proceedings a person m'st have a legal interest in the s'bCect matter of the proceedings; see &#I5I& ANANIA 4A1A1I v" RET2RNINA O;;I%ER N@O4.E NORT# %ON1TIT2EN%7 ? * OT#ER1 (s'pra," This r'le is therefore an e:ception to the general r'le prescribed 'nder Order / R'les * and /+ (/, of %ap" ))" &! +OIN#ER OF #EFEN#ANTS! AN OVERVIEW; According to Order" / r'le ) of %ap" ))$ all persons ma be Coined as defendants against whom an right to relief in respect of or arising o't of the same act or transaction or series of acts or transactions is alleged to e:ist$ whether Cointl $ severall or in the alternative where$ if separate s'its were
/D

bro'ght against s'ch persons$ an common H'estion of law or fact wo'ld arise" The provisions of this r'le (in respect of Coinder of defendants, are apparentl similar to those of Order / r'le / of %ap" )) (in respect of Coinder of plaintiffs,$ hence the proced're in respect Coinder of plaintiffs (disc'ssed herein above, applies mutatis mutandis to Coinder of defendants" INTERE1T1 O; >E;EN>ANT1 IN A 1INA5E 12IT; We observed earlier that no person shall be Coined to a s'it if he is not interested$ the law however adds that; it shall not be necessar that ever defendant shall be interested as to all the relieves claimed in an s'it against him (Order / r'le D of %ap" ))," The meaning envisaged b the law here is that$ in a s'it involving more than one remed so'ght b the plaintiff$ in which said s'it two or more defendants are Coined $ it is not necessar that each defendant is interested to all the remedies so'gh b the plaintiff" One defendant ma be interested in one or more relieves so'ght and another ma be interested in the rest of the relieves" The following ill'strative e:amples ma e:plain this stance of the law better; Illustrative &xam le! i! " intends to sue $# C % and & in a single suit claiming for remedies )# *# 3# + and , against them. 9nder the circumstances it suffices to join the four defendants if $ is interested to remedy ) only, while C is interested to remedies * and , only, and in the same time % and & are interested to all the , remedies( Illustrative &xam le! ii! " intends to sue $# C %, & and ' in a single suit claiming for remedies )# *# 3# + and , against them. $ is interested to remedy ) only, while C is interested to remedies * and , only, and in the same time % and & are interested to all the , remedies( :owever, ' is not interested to any of the , remedies. 9nder the circumstances, the uninterested ' cannot be joined as co3 defendant into the suit while all other defendants can be properly joined as co3defendants.
/E

>E;EN>ANT1 5IA.5E ON 1A4E %ONTRA%T; Where a contract is involved in a s'it and more than one defendant are liable$ the plaintiff is entitled in law to choose which defendant to s'e (Order / r'le E of %ap" ))," 2nder this r'le the plaintiff ma $ at his option$ Coin as parties to the same s'it all or an of the persons severall $ or Cointl and severall $ liable on an one contract$ incl'ding parties to bills of e:change and promissor notes" @OIN>ER O; >E;EN>ANT1 A1 A RE125T O; >O2.T;25 &5AINTI;;; Again$ the plaintiff is privileged b the law to Coin two or more defendants in a single s'it where he is in do'bt as to the person from whom he is entitled to obtain redress" 2nder these circ'mstances he will file the s'it against all of them in order that the H'estion as to which of the defendants is liable$ and to what e:tent$ ma be determined b the co'rt as between all parties (see Order / r'le F of %ap" ))," The law adds here that; in private litigations the H'estion of Coinder is essentiall discretionar altho'gh a litigant is advised to Coin as defendants all persons against whom an right or relief is alleged to e:ist where if separate s'its were bro'ght against s'ch parsons a common H'estion of law or fact wo'ld arise$ see >R" 4WI6WA.E 4" 4AAERE v" T#E ATTORNE7 AENERA5"$2 The plaintiff sho'ld however$ e:ercise this option caref'll otherwise he ma end 'p pa ing costs for an 'nnecessar dragging an indifferent defendant to co'rt$ this is beca'se the r'le does not e:onerate the plaintiff from pa ing costs of the s'it in case he looses the case" A4EN>4ENT O; &5AINT 2&ON A>>INA >E;EN>ANT TO T#E 12IT; It is the law that in case a defendant is added as a part to s'it$ the plaint shall$ 'nless the co'rt otherwise directs$ be amended in s'ch manner as ma be necessar ; and the amended copies of the s'mmons and of the
)/

. 9C!CIVIL A""EAL NO!22I266&!AT M ANZA. (u,)e;o)*e-).

/F

plaint shall be served on the new defendant and$ if the co'rt thin0s fit$ on the original defendant Lsee Order / r'le /+ (8, of %ap" ))M" The rationale of this r'le rests on the fact that it is according to C'stice to notif the additional defendant who is evidentl strange to the s'it on the nat're of the s'it against him b serving 'pon him the s'mmons and the amended plaint" TI4E 5I4ITATION IN RE1&E%T O; A>>E> >E;EN>ANT Order / r'le /+ (D, of %ap" )) provides that$ 1'bCect to the provisions of section ** of the 5aw of 5imitation Act (%ap" GJ,$ the proceedings as against an person added as defendant shall be deemed to have beg'n onl on the service of the s'mmons" The rationale of this r'le is that$ the additional defendant is ta0en to have been ignorant of the e:istence of the proceedings against him 'ntil when he is formall informed of the same b the service of the s'mmons" Time co'ld not th's r'n against him before he was served with the s'mmons$ otherwise that wo'ld amo'nt to nothing else than a serio's inC'stice arising from adC'dging him 'nheard" It m'st be noted here that the time limitation referred to 'nder this r'le is mostl in respect of the cond'ct of the s'it alread filed$ s'ch as in respect of filling necessar doc'ments$ e" g" the Written 1tatement of >efence etc" The provisions of 1" ** of %ap" GJ mentioned above are co'ched th's; +n computing the period of limitation prescribed for a proceeding the institution, continuance or conclusion of which has been stayed by injunction or order, the time during which the injunction or order remains in force, shall be excluded. The additional defendant has th's$ 'nder the sit'ation a do'ble relief as far as time limitation is concerned 'pon being Coined in the s'it$ the first being provided b the provisions of Order / r'le /+ (D, of %ap" )) and the second being the one prescribed 'nder the provisions of 1" ** of %ap" GJ" 12INA T#E >E;EN>ANT IN RE&RE1ENTATIVE %A&A%IT7; Where a defendant is s'ed in representative capacit $ he will remain a representative of the represented person$ the plaintiff is precl'ded from

/G

see0ing to ma0e him personall liable on appeal; see N7ANKO.E 6A>E57A v" 4A7OAE >A2>"$% One ma th's$ for the sa0e of legal arg'ment$ compare and contrast the sit'ation 'nder this partic'lar stance of the law on one hand and the sit'ation s'ggested 'nder Order / r'le G of %ap" )) (Representative 1'it, and Order / r'le /* (/, and (*, of %ap" )) (appearance on behalf of others," @! OT9ER REA#IN/S!

E2RO%RO11 1A5E1 5T> AN> ANOT#ER V %ORN#I55 IN12RAN%E &5%"$$

.ANN2E >E1 4AR%#AN>1 >E 4O1%O2 (6O2&ET1%#E167, AN> ATTORNE7<AENERA5 V 4I>5AN> .AN6 5T>" $& .EN>IR AN> OT#ER1 V AN1ON" $@

.2RN1I>E V #ARRI1ON 4AR61 &RO>2%TION1 5T>"$A

.ENT5E7 4OTOR1 (/J)/, 5T> V 5AAON>A 5T>"$7 4IT%#E55 V #ARRI1 ENAINEERINA %O 5T>.$:

)*

6 % 2 4ATE6A V ANT#ON7 #7ERA"$6 5RT" n" *8"

" (/JFE,

))

. 5266@8 & ALL ER 6@>. . 526$68 % ALL ER $A& . 526$A8 $ ALL ER $%A . 526A:8 % ALL ER %:A . 526&@8 % ALL ER %22 . . 526A78 % ALL ER A:% . 526::8 TLR 2:: (9C) /J

)8

)D

)E

)F

)G

)J

 ." >" %#I&ETA$ A 4agistrateBs 4an'al.&> >" ;" 4255A$ The %ode of %ivil &roced're Act V of /J+G (With E:planator Notes and %ommentaries," &2" @" #" 6" 2TA4WA" (>=REAI1TRAR, T#E #IA# %O2RT O; TANKANIA AT 4.E7A" (&art Time 5ect'rer," 4K24.E 2NIVER1IT7 MBEYA CAM"US! NoDembe)? %>>7.

8+

" TM". Book #e;()*me,*? T(bo)(? T(,z(,i(? (".2@7=2@6). . 2>*h E-i*io,? The E('*e), L(F 9ou'e? C(0Bu**(? 26$&? (". &&7=&76).

8/

*+