LITIGATION LAW UPDATE: WHAT LITIGANTS SHOULD KNOW REGARDING THE RECENT AMENDMENTS TO THE TANZANIA CIVIL PROCEDURE CODE, CAP. 33 R.E. 2002; VOLUME I.

• A guide to electronic filing under the Civil Procedure Code.
• Introducing new modes of service of summons and documents in civil litigation
• Mandatory requirements as regards to drafting and filing of pleadings in Court
• Analysis of sanctions for failure to adhere to the new rules and timelines

1.0 Introduction:

For civil litigation gurus and practitioners in Tanzania, the Civil Procedure Code, Cap 33 R.E. 2002, (hereinafter “The CPC”) is equal to a Bible to a faithful Christian. It is the code that all court proceedings in the High Court and Subordinate Courts must follow. This is in addition to the Magistrates Courts’ Act, in case of the latter, Subordinate Courts in the styles of District Courts and Resident Courts. For clarity of application of the CPC, the definition section thereto, Section 3 defines “Court” as follows:-

“…’court’, except in the expression ‘foreign court’, means the High Court of the United Republic, a court of resident magistrate or a district court presided over by a civil magistrate and references to a district court presided over by a civil magistrate”

The CPC provides mandatory and minimum procedural conditions that suits and all proceedings must follow and abide to. In addition to it being “the code” CPC is the go-to-procedural law, where other procedural laws are lacking. For example, despite land disputes being mainly guided by Land Disputes Courts Act, Cap 216 and labour disputes in the High Court Labour Divisions are guided by Labour Institutions Act, Cap 300 read together with the Labour Court Rules, G.N. No. 106 of 2007, they both rely on the applicability of the CPC whenever they fall short.

All in all, given the nature of practice in Tanzania, marred by lengthy procedural delays, mix-ups and including preliminary objections based on technical issues (points of law), Breakthrough Attorneys’ litigation team, have deemed it proper to summarize the key changes to the CPC after the amendments introduced recently vide G.N. No. 381 of 2019 published on the 10^th May, 2019 as The Civil Procedure Code (Amendments of the First Schedule) Rules, 2019.

2.0 Exploring the Amendments and Effects Thereto:

2.1. Introduction of Electronic Filings, Signatures and Service

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 officer appointed in that behalf.”

(b) deleting rule 3 and substituting for it the following-

3. 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.”

What is key to note in the amendments 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. Nonetheless, to avoid confusions, filings out of time, our litigation team advises litigants to acquiesce themselves with the preferences of specific registries lest they run the risk of delaying their cases. After all, there is a popular saying that “a good lawyer knows the law and a great lawyer knows the judge/court”, meaning that a better lawyer would know the habits and tendencies of the court they are set to litigate in.

Electronic Signatures in Summons [Rule 2 of Order V]

On another note, summons to file defences may now be signed by a Judge or Magistrate through electronic signatures. Note that they can still opt to sign manually.

This amendment to Rule 2 of Order V of the CPC sits well with the modern technological developments and the outcry by the public against Court’s delays on simple matters like signing of summons.

Electronic Substituted Service [Rule 29 of Order V)

Order V of the CPC, which deals with issuance and services of summons has long since been a quagmire for civil litigants when it comes to service of summons. Most defendants would tend to refuse service of suits. Courts are also popular for their reluctance to grant orders for substituted services, such as, by publication. A court would at times, even order re-service of summons despite the record adorning an Affidavit of Proof of Service by a Court’s Process Server detailing how the service physically and by other customary means failed. Courts have had the tendency of treating substituted services via mailing or publication as the stepchild of court process service.

Through this G.N. No. 381 of 2019 we see the judiciary taking a liberal move to add on “electronic service” to other existing manners of substituted services. A new Rule 29 is introduced which allows servicing of summons through email or facsimile to the other party’s “previously disclosed addresses through their transactions”. The simple rules of thumb for such service to be deemed sufficient are as follows:-

1. That the Court has to order it after physical service is deemed to have failed
2. That the Court has to be copied in such service simultaneously.

While this introduction is progressive and commendable, there is a hitch in its applicability. Sub-rule 3 of Rule 29 stipulates, “delivered status report shall be deemed as proof of service”. This is practical but may be a problem when it comes to certain operating systems, which do not support “tracking of emails”; and some recipients, may simply leave such emails unread. The amendment, ought to have expounded further on the meaning of “delivered” otherwise we foresee a flurry of technical disputes with regards to status of delivery and in essence, insufficient service.

2.2. 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 plaintiff had 21 days to effect service of the summons (See the old Rule 10 of Order V). After 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 effected 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]

Our litigation practice has what are called “mentions” referencing appearances before courts for orders. “Appearances for orders” as properly as they are termed, were not specified officially and hence the legal fraternity coining the term “mention”. The first of many references was when the case will be called for the first time after pleadings are complete, instances of alignment after adjournments, or where the court wishes to see the parties for reasons other than trial.

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 Plaintiff who first presents their case.

2.3. 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 plaintiff 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 plaintiff 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.”

The requirement for additional information seems mandatory through usage of the word “including..” but there is still a hitch through the phrase “..if available”. A plaintiff presenting a plaint may simply not include the new particulars and claim that the same are not available. Nonetheless, in our experience, simple things may delay filings as the court has power to reject plaints on such trivial technical points. In essence we advise litigants to include such information if and whenever they can.

2.4. Overhaul of Order VIII; Filling of Written Statement of Defence and Associated Claims.

Of trivial effects in the general amendment to Order VIII include the title, which used to be “WRITTEN STATEMENT, SET-OFF AND COUNTERCLAIM”. Now it has been amended to recategorize it as part “A” and the title  “WRITTEN STATEMENT OF DEFENCE, SET-OFF AND COUNTERCLAIM”. A simple addition of the words “..OF DEFENCE” after ‘Written Statement’. There is also Part “B” which we will discuss later below.

Of notable effects and import in the new Order VIII; Are the following:

1. 1. Rule 1 is amended by scrapping off the summons to appear, and a requirement to present a written statement of defence before the appearing date set in the summons. In its stead, the new Rule 1 requires the Defendant to file the defence within 21 days of service of the summons and to appear in Court as per the summons. This is in line with the amendments made to Order V as per the summary made in item 2.1 and 2.2 above.

 

1. 1. New Rule 2 now brings forth the minimum particulars required for a Plaint (see Order VII Rule 1) and makes them mandatory requirements to be featured in the Written Statement of Defence as well. This inclusion now is at the expense of the old Rule 2 which gave twenty-one days to file defence upon a summons to file a defence and also had a proviso on additional twenty one days within which a defendant could apply for extension of time to file a defence in the event he could not file in the statutory first 21 days. The new amendments though have provided for a different mechanism for expiry of such period and its extension as we will discuss below.

 

1. 1. A scrutiny of the previous position is that there were two types of summons; one to appear and another to file written statement of defence respectively featured in old Rule 1 and 2. In the current position, there is only one kind of summons, which gives both effects. That is, a date to appear, and a timeline for filing a written statement of defence from the date of service of the summons thereof.

 

1. 1. Extension of time to file a written statement of defence is now provided under the new Rule 3. The difference is that now the defendant can apply for such extension before expiration of the original 21 days or within 7 days of expiration thereof. The extension to be given may only be for another 10 days from the ruling granting extension (see the new Rule 4), of which the Court is also limited to make a ruling thereof within 21 days of the application.
      
      Practically, this amendment is good as it allows applications for extension before even expiry and has shrinked the time within which one can apply for extension of time from 21 days to a mere 7 days. On the same note, the Court was not time-bound as regards the delivery of decisions on whether to allow extension or not. As a result, applications for extension of time to file written statement of defence have taken even a year to decide, and clogging the main gist in disputes. This is seemingly curbed now, with the Court required to decide such applications within 21 days of their inception.
      
      
      

 

1. 1. New facts and preliminary objections now must be specifically pleaded. We have underlined the part on preliminary objections since “preliminary objections” were not a creature of the Code and were mostly a thing out of practice. Through precedents, it has been repeatedly pointed out in various court decisions that preliminary objections on points of law against the suit/plaint must be canvassed at the earliest possible opportunity, within the frame of the written statement of defence. This requirement has toppled most preliminary objections, which were preferred after the written statement of defence (other than those touching on jurisdiction which can be raised at any juncture of proceedings).

 

1. Rule 14 (on failure to present written statement of defence) is deleted and replaced in whole. The new provision allows the Court to order ex-parte evidence against any defendant who defaults presenting a written statement of defence in the original specified period or after been given the extension to file written statement of defence. The new Rule 14 incorporates new features as follows:-
   
   1. Upon determination of the failure to file written statement of defence by the defendant, the court to fix the case to come for ex-parte proof.
   2. The defendant may, at any time before ex-parte judgment is entered, apply, while showing good cause, to set aside the order to proceed ex-parte.
   3. The decree, if the case proceeds ex-parte is dubbed “default judgment” and cannot be executed until after expiry of sixty (60) days from the date of the decree.
2. There is a new Rule 15 while the old Rule 15 has been renumbered as Rule 16. New Rule 15 deals with the setting aside of the default judgment entered upon an ex-parte proof. The defendant may apply for setting aside of the default judgment entered under the auspices of Rule 14 if and upon applying for setting aside within 60 days of the judgment and also upon showing good reasons to warrant the setting aside.
   
   Rule 15 (3) is to the effect that when a default judgment under Rule 14 is set aside, the defendant can then file a defence (within a time specified by the Court) and defend against the suit as ordinarily. However under Sub-Rule (4) if the defendant fails to do so within the time specified, the original default judgment shall be revived.
   
   Of important to note is Sub-Rule 5, which provides that, a revived default judgment will not be appealable or capable of being set aside.
   
   

2.4.

The renumbered Rule 16 is minimally amended by removing the connotation which was there before that after completion of both parties’ pleadings the matter would be ‘ready for hearing’ as shall be fixed by the Court. This part ignored the existing provisions under Order VIII B and C on issues of pre trial conferences, mediation, final pre trial conferences etc. These have however

As for those words “…ready for hearing…” the current provision have removed that reference and inserted “ready for mediation” as per practice and as per the new provisions of Order VIII B, C and D spanning from new Rule 17 to 41 as imported vide the new amendments.

Volume II of this article will discuss widely those amendments as well as those to Order IX and Order XVII.

3.0 Conclusion:

Generally, civil litigation practice in Tanzania is a mixture of both procedural law (codified) and practical precedents. Some key features are not provided by statute but are still part of the practice. For example; “appearing for mentions”. This signifies court appearance for applying for or grant of necessary orders or for planning a way forward in a particular proceeding.

The current amendments have, in our opinion, centered on several objectives, key of which are to formalize some practical procedures, which were not part of the law, and on top of that, to ensure that unnecessary technical delays provided by the law are curtailed, by providing a more precise, clear-cut and summarized timeline of discharging statutory duties and requirements.

Based on these new amendments, Breakthrough Attorneys believes that there will be added efficiency and therefore, productivity on the side of the Court as well as other players, i.e. parties themselves. It is our honest view that the amendments have left little if not no room for parties to employing delaying tactics, especially in the preliminary suit stages covered in this Volume I. How the amendments to the pre-trial conferences, mediation and hearing stage are to affect the practice and litigants will be covered in Volume II of this article, as intoned above.

All in all, Breakthrough Attorneys’ closing advice to the litigating parties is that they should always be on top of the court’s orders, directions and timelines (both statutory and court sanctioned ones). With the new amendments, the traditional lenient Court is slowly being swallowed with a technical, technological and time restricted Court. Where litigants used to expect mercy of the Court, now the law has filled in with specificity of provisions detailing how the Court should behave. In simple terms, the Court’s hands are tied. Keenly observe deadlines, statutory periods and orders so as to ensure your own full access to justice.

Important Notice:
This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, Breakthrough Attorneys, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.