Judge Prof Dr Ubena J Agatho

LECTURE IV
PRE-HEARING PROCEDURES
Parties to the suit

• Civil proceeding means litigation which is

commenced/instituted in the Court of
• laws. Parties to the proceedings means the
Persons who are involved in the litigation
• in the Court. These persons may be natural
persons (human beings) or legal persons
• (institutions/companies).
•
• There are many civil litigations which can be
commenced/instituted in the Courts;
Conti…

Suit Application

Appeal Petition
Parties to the suit
Suit refers to the civil litigation which is commenced/instituted in the Court by way
of Plaint.
There are two Parties to the Suit, which are the Plaintiff and the Defendant.
The Plaintiff is the Party who commences/institutes the Suit while the Defendant is
the Party against whom the Suit is commenced/instituted.
The Plaintiff is the Party who alleges to have right and that his right has been violated
by the Defendant while the Defendant is the Party who denies violation of the right.
In the Suit there are three ways to describe Plaintiff and the Defendant.
Parties to the suit
i. The Name of the Plaintiff is written on the left-hand side and the Name of the Defendant is written
in the right-hand side. The two names are separated by the symbol
“vs.”
i. The Name of the Plaintiff is written above, and the Name of the Defendant is written below, and the
two names are separated by the symbol “vs.”

i. The Name of the Plaintiff is written on far left side and then is described as Plaintiff and the Names
of the Defendant is written below it on far left side and described as Defendant and are separated
by “vs.”
Examples;
i. Maliyatabu Kazibure vs. Malingumu Sinahela
ii. Havijawa Tayari
Vs
Simba Mbawala
iii. Bakari Kidishi………………the Plaintiff
Vs.
Halima Shemliwa ……………the Defendant
 • Application means the move to request the Court
to grant certain orders before the finalization of
the Suit.
• In Applications there are two Parties, who are the
Applicant and the Respondent.
Parties in an • The Applicant is the Party who makes the
Application/Request while the Respondent is the
application Party who resists/objects the Application.
• In describing them, the Applicant takes the
position of the Plaintiff and the Respondent takes
the position of the Defendant.
 • Petition is the proceeding which is similar to
the Suit but it is commenced/instituted by
Petition-not Plaint.
• There are two Parties in Petition, which are
Parties in a the Petitioner and the Respondent.
• The Petitioner is the Party who commences
petition the Petition while the Respondent is the
Party who resists/objects the Petition.
• In describing them, the Petitioner takes the
Position of the Plaintiff and the Respondent
takes the position of the Defendant.
Parties in appeal
• Appeal is the proceeding which is commenced to
challenge the decision/Judgment of the trial Court.
• There are two Parties in Appeal, which are the
Appellant and the Respondent.
• The Appellant is the Party who lodges/files the Appeal
while the Respondent is the Party who resists/objects
the Appeal.
• In describing them the Appellant takes the position of
the Plaintiff while the Respondent takes the Position of
the Defendant.
Types of parties in
proceedings
There are two major types of Parties in every
proceeding.
• These are Necessary Party and Proper Party.
• The Necessary Party is the unavoidable Party.
This is the Party without which there can be
no proceeding in the Court of law.
• The Proper Party is the Party who is avoidable.
This is the Party who ought to be joined but is
not joined.
• In deciding the Necessary Party and Property
Party physical attendance/Presence of the
Party is irrelevant. What is relevant is the
Presence in the Court’s record or pleadings.
Proceedings against a
minor of person of
unsound mind
• If the Minor/ Person of unsound Mind has
right or liability, such Minor/Unsound mind
Person shall sue or be sued through the Next
friend or the Guardian ad litem.
• This is provided in Order XXXI Rules 1 and 3
of the CPC
• Case:
Bashiri Ally vs. Clemencia Falima and 2
Others (1998) TLR 215
• In this case Bashir Ally was the Minor and he
sued through the Next Friend-his mother.
 Abatement of proceedings
• Abetment of proceedings means discontinuity of the proceeding caused by any valid and legal
grounds.

• After the proceeding to be commenced Party may die or may become of unsound mind or may be
dissolved (would up/became bankruptcy/become insolvent).

• Death/Unsound mind/ dissolution of the Party is not automatic death of the proceeding. This means
the proceeding may continue even if the Party dies, becomes of unsound mind or is dissolved.
Continues
Where the Party dies/become of
unsound mind/is dissolved, the
Order XXII of CPC deals with the
proceeding shall continue for him
situation where the Party dies,
or against him in the name of the
marries, become of unsound mind
Legal Representative of that Party
or is insolvent.
or for or against the Guardian ad
litem.

If one of these happens, the The Legal Representation shall

proceeding shall continue in the have to make Application to be
name of the legal representation of allowed to continue with the
the Party. proceedings.
Continues

• Read Order XX Rule 3 CPC.

• If the Party is the Plaintiff and no Application is made

by his Legal Representation,
• the Proceeding shall be dismissed. Order XX Rule 3(1)
CPC

• If the Party is the Defendant and no Legal

Representation applies to be made the Party the
proceeding shall proceed ex parte. There after the
Decree shall be executed against the estate of the
deceased Defendant.
•
 continues

• Section 9(1) of the Law Reform (Fatal Accidents and Miscellaneous

Provision) Act, CAP 310 RE 2002 provides for the proceedings which
abate if the Party dies, becomes bankrupt or insolvent.

• According to this provision, the proceeding of defamation or sedition

nature abate on the death of the Plaintiff.

• Another proceeding which abates if the Party dies is matrimonial

petition for divorce. Such petition shall not continue if the husband/wife
dies.
Joinder of parties to the
suit
• In one civil suit there can be more than one
Plaintiff and more than one Defendant.
• This means that there is possibility of the case to
have co-Plaintiffs or co-Defendants.

• Joinder of the Parties to the suit is governed by

Order I Rules 1 and 3 of the CPC.

• There are two types of jonder of Parties to the

suit. This is joinder of the Plaintiffs and joinder
of the Defendants.
Joinder of plaintiffs
Joinder of the Plaintiff happens where in one suit, there is
more than one Plaintiff as co-Plaintiffs.
The law allows all the persons who have common interest
to join as co-Plaintiffs in one suit. Therefore, all the Parties
or the Plaintiffs may be joined in one suit, if either:
(a) the rights to relief or remedies which vest in them arise out of the same
transaction or cause of action, or
(b) if separate suits are brought against each of them individually common
questions of facts and law will arise.
Conti..

• Joinder of the Plaintiff is provided in Order I

Rule 1 of CPC. This provision allows all the
persons who have any right in respect of or
arising out of the same act or transaction or
series of acts or transactions is alleged to exist,
to sue jointly in one suit.

• From the words of this provision there is no

limitation as to the number of the persons to
join and sue under joinder of the Plaintiff.
Joinder of Defendants

Joinder of the Defendant happens where in one suit, there is more

than one Defendant as co-Defendants.

The rule of joinder of the Defendants allows all the persons who are
jointly liable to be joined as co-Defendants in one suit.

(a) the rights to relief or remedies sought by the Plaintiff to them vest
Therefore, all the Parties may be in them arise out of the same transaction or cause of action, or
(b). the if separate suit are brought against each of them individually,
joined in one suit, if either: common questions of facts or law will arise.
Conti…

• Joinder of the Defendants is provided

under in I Rule 3 CPC.
• This provision allows all the persons
against whom any right to relief in respect
of or arising out of the same act or
transaction or series of acts or transactions
is alleged to exist, whether jointly,
severally or in the alternative, to be sued in
one suit.

• From the words of this provision there is

no limitation as to the number of people to
join and sue under joinder of the
Defendants.
Non-joinder of parties

Non joinder of the Parties happens where the suit does not include all the Parties
as the Plaintiff or as the Defendants who ought to be sued in one suit.

Non joinder of the Parties may be in the form of non-joinder of the Plaintiff or
non-joinder of the Defendants.

Non joinder of the Plaintiff happens where the persons who ought to join in one
suit and to sue the Defendant decide to sue individually or separately.

As a general rule non-joinder of the Plaintiff is not fatal.

Conti…
• If the Plaintiff does not sue all the Defendants who ought to be sued
together in one suit, this is non joinder of the Defendant. As a general
rule non joinder of the Defendant is allowed.

• There is a rule of practice in civil proceedings that if one wants to

sue then he should sue a person with deep pockets. For that the
Plaintiff may decide to sue only those persons with deep pockets and
leaving the others out of the suit.

• Order I Rule 6 of the CPC allows the Plaintiff to sue some persons
who are liable in one contract or bill of exchange. This is the
scenario of Non joinder of the Defendant.
Misjoinder of parties

It is possible that the

Plaintiff may sue several
persons in one suit, who
Misjoinder of the Parties
ought not to be sued in one
happens where there is
suit. Again, it is possible
joinder of the Parties in one
that several plaintiffs may
suit who were not to be
join to sue one or several
joined.
Defendants in one suit who
ought not to join and sue in
one suit.

Yohana Kahere and others

Case: vs. Lonjo Estate Ltd (1958)
EA 319
Effects of non-joinder and
misjoinder of parties
Order I Rule 9 of CPC provides for the effects of mis joinder
and non-joinder of the Parties. It is to the effect that the
misjoinder and non-joinder of the Parties is not fatal to the
proceedings. No suit shall be dismissed only on the ground of
the mis-joinder or non-joinder of the parties.

Thus, where there is non-joinder or mis joinder of the Parties,

the Court may proceed to determine the real question between
the Parties who are before it.
 Remedies for non-joinder and misjoinder of parties
1. Withdrawal of the Suit
• If there is misjoinder of the Parties, the Plaintiffs may lodge Application in the Court requesting for
the withdrawal of the suit.
• Upon the Court to grant the leave, the Plaintiffs will withdraw the suit and file another suit against
the Defendants.
• However, the withdrawal of the suit and filing of a fresh suit properly is subject to the law of
limitations.
•
 2. Stay of the Suits
Conti…
• When the Court is satisfied that there is non-
joinder or mis-joinder of the parties, it may
order stay of the suit.
• The Plaintiff then may reinstitute the fresh
suit, joining proper and necessary Parties.
Case:
Yohana Kahere & Others vs. Lonjo Estate Ltd
above
In this case there was misjoinder of the Plaintiffs.
The Court ordered the suit to be stayed, allowing
the Plaintiffs to withdraw it and institute a fresh
suit, each of the Plaintiff individually.
Conti…

3. Substitution or Additional of the Plaintiff

• Where there is mis joinder or non joinder

of the Plaintiff the Court may order
substitution or addition of the appropriate
Plaintiff.

• The substitution of the Plaintiff is provided

for in Order I Rule 10 (1) of CPC. This
provision gives power to the Court to order
substitution or addition of the appropriate
• Plaintiff to the suit where there is non
joinder or mis joinder of the Party thereof.
Uncertainty as to the Person to
Sue

• It may happen that the Plaintiff is not sure of the

person to sue as the Defendant. If such a thing
happens, the Plaintiff may resort to rely on
Order I Rule 7 of CPC.

• This provision provides that the Plaintiff may

sue all the persons whom the Plaintiff thinks he
could sue as the Defendants.
Joinder of Parties and
joinder of causes of
SEVERAL CAUSES OF ACTION CAN BE
JOINED TOGETHER AND BE THE SUBJECT
OF ONE SUIT AGAINST THE DEFENDANT.
THIS IS PROVIDED IN ORDER II RULE 3(1)
OF CPC.
actions
HOWEVER, IN SO DOING THERE MAY BE
AGGREGATE VALUE OF THE SUBJECT
MATTER WHICH MAY BE BIGGER THAN
THAT IF ONE WOULD SUE IN DIFFERENT
CAUSES OF ACTION.

THUS, IF THE PLAINTIFF DECIDES TO SUE ORDER II RULE 3(2) OF CPC.

BY JOINING CAUSES OF ACTION, HE HAS
TO CONSIDER THE PECUNIARY
VALUE/JURISDICTION OF THE COURT IN
RESPECT TO THE AGGREGATE VALUE OF
THE SUBJECT MATTER.
Conti…

Case:

Mkuki & Another vs. Mbara M. Hatibu (1983) TLR 230

In this case Lugakingira, J., saw that the suit of the Respondent against the Appellant in the trail Court was based
on interference with a contract, trespass, conversion and detinue which arose directly in the same transaction and
so could not be sued in separate suits and in separate cause or causes of action. The rule of joinder of causes of
action also authorizes the Plaintiff to unite several Defendants under several causes of action in one suit.
 1. What happens if one of the
defendants joined in the case is
deceased prior to the institution of
the suit?
2. What happens if one of the
plaintiffs is said to be deceased
before institution of the suit?
Reflection Questions 3. What would be the position if
there is a sole plaintiff who is said
to have filed the suit is deceased?
4. What would be the position if
there is a sole defendant who is
said to be deceased prior to filing
of the case against him?
Read cases

• Babubhai Dhanji v Zainab

Mrekwe [1964] 1 EA 24;
• Juma A. Zomboko and 42
Others v Avic Coastal and
Development Co. Ltd and 4
Others, Civil Application No.
576/17 of 2017 CAT;
• Athumani Bakari Kibwigiri
v Lawrence Martine Lowri
and 8 Others, Land Case No.
7 of 2020, HCT Tanga District
Registry.