Civil Procedure- Plaint

IN THE HIGH COURT OF TANZANIA
(DAR ES SALAAM DISTRICT REGISTRY)
AT DAR ES SALAAM.

CIVIL CASE NO………., OF………………..

TANZANIA INVESTIMENT BANK ……………………………………………………….PLAINTIFF
Versus
S. C. S ASSOCIATES LIMITED &
S. C SHUSHU……………………………………………………………………………………………..DEFENDANTS

PLAINT.
The plaintiff above named states as follows:

That the plaintiff is an investment bank and statutory body established by the Tanzania Investment Bank Act No. 20 0f 1970 as amended by Acts no’s 10 of 1984 and 10 of 1994. It’s address for service for the purposes of the suit is ……………………………………………………………….....................

That the defendant is a limited Liability Company incorporated in Tanzania under the Companies Ordinance, CAP 212. It’s address for service, for the purposes of this suit is C/O Mavuno House, 1st floor, Azikiwe Street, Dar Es salaam.

That the second defendant is the Managing Consultant of the first defendant and his address for service for the purposes of this suit is C/O Mavuno House, 1st floor, Azikiwe Street, Dar Es Salaam.

That the Plaintiff is the holder of the right of occupancy over plots no’s 489, 517 Block “J” at Mbezi in the City of Dar Es Salaam, containing 2.072 hectares, L. O no. 77645, certificate of title no. 31030 for 99 years with effect from the 20th of January 1986. Copy of the said  certificate of title which forms part of this plaint is annexed hereto and marked A1.

That the Plaintiff has had legal possession or has been entitled to legal possession of the said plots with effect from the date the letter of offer of right of occupancy with respect to the said plots was issued to the Plaintiff.

That the Plaintiff developed the said plots through erection of Bar and Restaurant, Shop,
Guest House, Squash Court and fourteen(14) marionettes.

That on or about the 20th day of May 1991 the Plaintiff leased, in writing to the first defendant the Bar and Restaurant for the term of ten(10) years.

That on or about January 1995, the first and second defendants jointly occupied the Guest House and the following five(5) marionettes, that is to say TIB/OAS/HS 22, TIB/OAS/HS 24, TIB/OAS/HS 25, TIB/OAS/HS 27 and TIB/OAS/HS 28. (hereinafter referred to as “the suit premises”) without the consent or authority of the Plaintiff.

That the defendants are guilty of trespass on the suit premises.

Particulars of trespass by the defendants.
Entry into and occupation of the suit premises.

Leasing the suit premises to tenants and/or remitting to the Plaintiff the rent or consideration thereof.

That despite the Plaintiff’s protests, the defendants have persisted in their acts of trespass. Copy of Defendants’ letter Ref. no S.C.S/TIB/M/60/95 dated 20th November 1995 which forms part of this plaint is annexed hereto and marked A2.

That the Plaintiff has been unable to lease the suit premises to prospective tenants or to put the same to alternative commercial use due to the Defendants’ acts of trespass.

That the Plaintiff has suffered damage due to the Defendants’ acts of trespass.

That the “suit premises” are located in Dar Es Salaam and therefore, this Honorable Court has jurisdiction.

That for the purposes of Court fees the value of the subject matter of the “suit premises” exceeds Tshs. 100 million.

Wherefore the Plaintiff prays for:
Eviction Order against the Defendants’ from the “suit premises,”

Tshs. 102,400,000/= (one hundred and two million, four hundred thousand) being mesne profits or special damages calculated at the rate of 1,000 United States Dollars(USD) per marionette per month with  effect from January 1995, to the date of filling the suit.

General damages.

Injuction to restrain the Defendants’, by themselves or by their agents, workmen and associates or otherwise howsoever from entering the “suit premises,” remaining thereon or carrying out any activity.

Presented for filling this ……...... day of September 1997.

……………………………………………………………………………………..
REGISTRY OFFICER.

TO BE SERVED UPON:
M/S S.C.S ASSOCIATES LTD, and
MR. S.O SHUSHU, both of Mavuno House,
                                 1st Floor,
                                 Azikiwe Street,
                                 DAR ES SALAAM.

DRAWN & FILED BY:
…………………………………………..

PLAINT
Order VII CPC.
A plaint is a court document, it should contain a title. What comprises of the title of a plaint? Refer: Rule 1 (a) (b) & (c).The name of the court, the number of the case and the names of the parties.
In the body of the plaint the first paragraph should contain the description of the plaintiff. Where there is more than one plaintiff, each plaintiff will be described in his own paragraph. The second paragraph will contain the description of the defendant. Where there is more than one defendant, each will be described in separate paragraph.

The main body of the plaint will constitute the facts which show the cause of action.

Towards the end of the plaint there should be a statement to the effect that a claim has been made and the defendant has refused to accede to it.

There has to be a paragraph towards the end to show that the court has jurisdiction. This is followed by prayer for reliefs. See: Rule 2.
Note: that a relief not prayed cannot be granted.
At the end of the prayer of relief there must be a signature of the plaintiff or any person entitled by the law. Then comes verification which should be signed at the left hand corner by an Advocate or Magistrate.
Normally there is no specific type of paper to use but the practice is – pleadings are written in light green paper which is less than 800 grams.
In England, there is a rule – it must be an A4 paper. In Tanzania it must be in a foolscap.

General notes on Plaint.
- The names together with the description and the place of residence or place of business must be set out in the title part of the plaint.
- If the plaintiff is unable to give the full name of the defendant it is better to state in the body of plaint that, in spite of his best endeavor,  the plaintiff could not ascertain the full name of the defendant.
- A corporation must sue or be sued in its full corporate name.
- Partners may be sued in the firm’s name.
- The capacity in which the plaintiff sues or the defendant is being sued ordinarily be set out in the body of the plaint.
- Dual capacity, as where the plaintiff sues in a representative capacity as also in his own right should be clearly stated.
- Rule 1 (b) and (c) of Order VII requires that the place of the plaintiff or the defendant is to be stated in the plaint. It does not say anything about the place where the plaintiff or the defendant carries on business or personally works for gain.
- Place of residence however, can only apply to person actions. It cannot apply to a firm, corporation or government.
Even in personal actions the place where a party carries on a business or personally works for gain may be, and often is stated instead of his place of residence.
In case of registered company, the place where the registered office of the company is situated or where any of the branch offices of the company is situated.
The body of the plaint should be divided into paragraphs and consecutively numbered.
Dates, sums and numbers should be expressed in figure. See: Order VI Rule 2.

RETURN AND REJECTION OF PLAINT.

RETURN OF PLAINT
A plaint is return to the person who filed it in a wrong court i.e court with no jurisdiction.
The return is made, either at the presentation of the plaint or at the time of hearing. Only a judge or magistrate has power to return a plaint.
It is a judicial act in the sense that the judge or the magistrate must give reasons for the return and these must be recorded.

Order VII Rule 10(2) the wrong court has no power to dismiss the suit. You do not have jurisdiction to entertain the suit therefore you do not have power to dismiss the suit.
The proper approach is not to dismiss it but to return it to the proper court.
This exercise may be at any stage of the suit. It depends upon the time the court discovers.

REJECT OF THE PLAINT
Order VII Rule 11
There are three circumstances under which a court may reject a plaint:
Where the plaint does not disclose a cause of action.
Where it appears to the court that the claim is under-valued. After the court has given power to the plaintiff to value it properly and the plaintiff has declined to do so.
Where on the face of the plaint the suit appears to be barred under any law. Eg. The Law of Limitation Act, Security of Employment, res judicata, res sub judice, etc.
The flexible approach of courts of Tanzania has resulted into the amendment of rule 11 by GN 228/1971. Under the amendments the Chief Justice used his power of making rules under section 81CPC to add a proviso to rule 11 which states: “Provided that where the court is of the opinion that, by allowing an amendment the plaint will disclose a cause of action, the court may order an amendment instead of rejecting the plaint.” The implication is that
When the court rejects the plaint it must state that the reasons for so doing as this order are appellable.
Rejection of a plaint is not a decision of the case on merits and therefore the doctrine of res judicata will not apply Rule 13 Order VIII.
A rejection of the plaint under this rule does not operate by itself as a bar to the plaintiff against filing a fresh suit on the same subject matter and of the same parties.

DOCUMENTS TO BE RELIED UPON BY THE PLAINTIFF IN A PLAINT
There are two documents:
Those which form the basis of the claim.
Those which form the evidence to support the plaintiff’s claim.
Those documents which form the basis of the claim will be annexed to the plaint but those which form the evidence need not be annexed to the plaint.
Those in category  1 must be in the parties’ power of possession.
A list of those documents which are not in the power of possession of the party and which will be used in evidence may be annexed to the plaint or listed at the foot of the plaint.
Consequences of not disclosing the documents
The party proposing to rely on the documents cannot produce them in court unless granted leave of the court.
Although those documents will be inadmissible they may assist in cross-examination. Order Vii Rule 18(2).
The principle of contingent cumulation – requires a party to plead every remedy/cause of action which is available however contradictory.
Eg. I never ran him over.
Even if I ran him over, which is denied, I was not negligent.
Even if the court finds me liable for running him over I was not negligent.
Even if I ran him over, and even if I was negligent, which is denied, the defendant was contributory negligent.
NB. The contradictions are allowed because they help frame the issue.
The Principle of Preclusion says that the party cannot lead evidence on anything which was not pleaded. If one does not plead it he is precluded from leading evidence on it.