QUESTION ONE

In general when the parties are before the Court of law, the Court will hear both parties, each party
will bring the evidence and the Court will make the judgment, then the decree and this decree may
be executed by the decree holder. But there are circumstances where the judgment may be entered
by the Court without trial. Those circumstances are discussed as follow;

Summary judgment. This is defined as legal procedure used for enforcing a right that takes effect
faster and more efficiently than ordinary methods. It is used to achieve an expeditious resolution
of the controversy.1 Summary procedure is governed by Order XXXV of Civil Procedure Code
Cap. 33 R.E. 2002. The procedure involves suits on bills of exchange (including cheques), or
promissory notes, suits for the recovery of income tax and suits arising out of mortgage.2 Also on
suits by the Tanzania Electric Supply Company Limited (TANESCO) for recovery of meter rents
and other charges, suits for recovery of rent, interest or other debts, suits for the recovery of
possession of any immovable property including any building or other premises and suits for the
recovery of possession of any immovable property from a lessee under a financial lease
agreement.3

The suit is instituted by presenting a plaint in a usual form but endorsed “Order XXXV: Summary
Procedure” and the summons shall inform the defendant that unless he obtains leave from the court
to defend the suit, a decision may be given against him and shall also inform him of the manner in
which application may be made for leave to defend.4 And if the defendant failed to apply for the
leave the court will enter summary judgment for the plaintiff unless the defendant shows the
sufficient cause for the failure to apply for the leave to appear and defend the suit.5

Judgment on admission. This is the judgment made on admissions made by the party. This is
governed by Order XII of the Civil Procedure Code. The order provides that the party who admits
the case may do that by his pleading.6 And if any evidence is required in pursuance of any notice

1
https://legal-dictionary.thefreedictionary.com/Summary+Process accessed on 18th June, 2018
2
Order XXXV Rule 1 (a) to (c) of Civil Procedure Code, R.E. 2002
3
Ibid, (d) to (e)
4
Ibid, Rule 2
5
The registered trustees of Archdiocese of Dar es Salaam Vs. The Chairman Bunju Village Court and eleven others
Civil Appeal No.147 of 2006 –The Court of Appeal of Tanzania at Dar es Salaam
6
Oder XII Rule 1 of the Civil Procedure Code, Cap 33 R.E. 2002
to admit documents or facts then affidavit of the advocate or his clerk of the due signature shall be
sufficient evidence.7 And any party may apply to the Court at any stage where there is an
admission, for such judgment.8 Basic principles governing admissions include; admissions must
be unequivocal, leaving no doubt and unambiguous; admissions should be categorical that is to
say it must be conscious and deliberate act of the party making it showing an intention to be bound
by it; and it can be expressly or impliedly. These were put forward in the case of Alloys Limited v.
Tata Steel Limited9

Where there is no dispute. This is provided under Order XV of the Civil Procedure Code. Rule 1
provides to the effect that where at the first hearing of a suit it appears that the parties are not at
issue on any question of law or fact, the Court may at once pronounce judgment. Therefore the
court will enter a judgment without trial.

Where the parties into consenting judgment. This is provided under XIV of the Civil Procedure
Code. It provides that where the parties into a suit are agreed as to the question of fact or of law to
be decided between them and where the Court is satisfied that the agreement was duly executed
by the parties and they have substantial interest in the decision, the Court upon the finding or
decision on such issue shall pronounce the judgment according to the terms of the agreement.10

Default judgment. It is a judgment entered by the Court in favour of the plaintiff against a party
who has failed to present his written statement of defense. The Court will pronounce the judgment
against such party provided that the claim is for the liquidated sum not exceeding one thousand
shillings upon proof by affidavit or oral evidence.11

Therefore, under these circumstances discussed above, the court will deviate from the normal
procedures of solving disputes and enter a judgment without trial, provided that the requirements
for each specific circumstance are met.

7
Ibid, Rule 5
8
Ibid, Rule 4
9
(2011) 3 RCR
10
Ibid, Order XIV, Rule 6 and 7
11
Ibid, Order VIII rule 14.-(2) (a),
QUESTION TWO

The remedy available to Juma Msemakweli is to file a fresh suit. This is because there is no appeal,
no revision or review which may lie against the ruling of the Court on objection proceedings. The
decision is final and conclusive. Therefore Juma Msemakweli may file a fresh suit basing on
provisions of Order XXI Rule 62 of Civil Procedure Code. It provides that where a claim or an
objection is preferred, the party against whom an order is made may institute a suit to establish the
right which he claims to the property in dispute, but, subject to the result of such suit, if any, the
order shall be conclusive. Therefore, the only remedy available is for Juma Msemakweli to file a
fresh suit claiming for his property for being wrongly attached to execution of s decree.

In the case of Thomas Joseph Kimario v. Apaisaria Carl Mkumbo and Oscar Carl Mushi,12 the
Court dismissed the appeal against objection proceedings and held that because the objection
proceedings under Order 21, rule 57 are not appealable, the present appeal is incompetent. The
appellant can, as stipulated under Order 21, rule 62, sue for title of the property he is contesting.

Also in the case of Kangaulu Musa v. Mpunghati Mchodo13 the plaintiff opened a fresh suit in the
High Court instead of proceeding by way of objection in the court which ordered the attachment.
It was held that the person who is aggrieved by the execution of decree may object to the court
which passed the decree and that covers the plaintiff. And filing of fresh suit is the remedy
available only to the person who is aggrieved by the decision in objection proceedings.

Therefore, basing on the above provisions of law and law cases, Mr. Juma Msemakweli is
supposed to file a new suit claiming the title over his property which is wrongly attached to the
execution of the decree.

12
[2002] TLR 369
13
[1984] TLR 348
QUESTION THREE

Yes, the Court can pronounce a judgment on any issue that was not framed at the Final Pre-trial
Conference (i.e. Final PTC stage). This is provided under Order XIV Rule 5 of the Civil Procedure
Code. The provisions provides that the Court may at any time before passing a decree amend the
issues or frame additional issues on such terms as it thinks fit; and all such amendments or
additional issues as may be necessary for determining the matters in controversy between the
parties shall be made or framed. The order continues to provide under sub rule 2 that the Court
may also at any time before passing the decree, striking out any issues that appear to it to be
wrongly framed or introduced.

In the case of Odd Jobs vs. Mubia14 the appellant appealed, contending that the judge had no
jurisdiction to decide the case on a ground which had not been pleaded. It was held that a court
may base its decision on an un-pleaded issue if it appears from the course followed at the trial that
the issue has been left to the court for decision.

Also in the case Stella Temu v. TRA15 it was held that a Court must decide a matter which it has
allowed to be argued before it even if the matter is not contained in the pleadings. Therefore,
basing on the above provisions of law and the decided cases, the Court is vested with the discretion
to make judgment suo motu (on its own motion) on the issues not famed at the Final Pre-trial
Conference (i.e. Final PTC stage. Provided it deems fit for it to do so and it is necessary for the
determination of dispute between the parties.

14
(1970) 1 EA 476
15
Civil Appeal No. 72 of 2002 Court of Appeal of Tanzania at Arusha
 BIBLIOGRAPHY

Chipeta B.D., Civil Procedure in Tanzania: A Student Manual, LawAfrica Publishing (T) LTD,
Dar es Salaam, 2002