HEARING OF SUIT AND EXAMINATION OF WITNESS

Hearing of suits

Is the process where by the court provide an opportunity for each side in dispute to present
their position1. Or

Refers to proceeding of relatively formality generally public, with definite issues of fact or of law
to be tried in which parties proceeded against right to be heard. Hearing is the constitutional
right since it stipulated under Article 13(6) (a)2.

In hearing of suit the one who has the right to begin is plaintiff, as provided under Order xviii
Rule 1 as amended by Civil Procedure Code (Amendment of First Schedule), but there are
circumstances where defendant begin to be heard, those circumstances are

-When defendant admits the fact alleged by plaintiff

-When the defendant rise objection on the point of law

- When defendants add same fact toward claims of plaintiff (counter claim, set off

The process of hearing also involves examination of witness, where as

1
Black's law dictionary

2
Cap of 1977 as amended time to time

3
See note 1 supra

4
Section 46 of Cap 6 R. E 2022
Examination in chief refers to the mode of examining witness which involve asking questions
which are introductory in nature. In civil case the plaintiff is the one who is examined in chief.
Everything that the witness knows about the case son that to advance party’s case and it must
relate only to the relevant fact. It is provided under Section 146(1) and 147(2) of the Evidence
Act,5 for this reason the examiner should not only make himself thoroughly acquainted with the
entire facts of the case but also with the particular facts. The essence of having examination in
chief is to create foundation for the plaintiff’s case.
Cross examination involves the defense side imposing the questions to the plaintiff’s side. The
essence of cross examination is to destroy the plaintiff’s case so that the case may be decided
own its favor. The leading questions in cross examination are allowed as it is provided at Section
146(2) of the Evidence Act6. The witness in plaintiff’s side after tendering his statements shall be
examined in cross examination.
Re-examination, the plaintiff’s side shall be given chance to ask questions which were not asked
in cross examination in order to fill the gaps raised.
Modes of adducing or giving evidence in chief
There are two ways of adducing evidence in chief as stipulated under Order xviii Rule 2(1)
i) orally (oral evidence)
ii) Witness statement
Oral Method
This is the mode of adducing evidence in which the witness narrates what happen through the
word of mouth. Kind of evidence adduced in this mode is known as oral evidence, and it's
meaning is stipulated under section 3 of Evidence act
ii. Witness statement

Is the document which contain evidence of a person which is signed by such person to confirm
that the contents of the statement are true. This have been provided under Order viii Rule 2 of the
Civil Procedure Code (Amendment of the First schedule) Rules 2021.

5
Cap. 6 R.E 2022

6
Ibid
Contents of witness statement includes shall be made by oath of affirmation, contain name,
address age, and occupation, being in intended witness own words, being in numbered paragraph
and contain the language of the Court.

After completion of mediation the plaintiff is required to file witness statement in not less than
seven (7) days before the days scheduled for hearing, the plaintiff shall file the statement of each
witness who he expects to call them, the statement containing facts of evidence. As stated in
Rule 3(1) of the Civil Procedure Code (Amendment of the First schedule) Rules 7 2021. The
plaintiff is required to serve the Copies to other side.

On the part of the respondent, upon the closure of the plaintiff case he is also required by the law
to file the witness statement in not less than Fourteen days (14), the statement of each witness he
intends to call them must be filed on the stated time again the copies must be served on the other
party not later than Five days (5) after being filed .This is according to Rule 3(2) and (3) of the
Civil Procedure Code (Amendment of the first Schedule) Rules8 2021.

The consequence for the party failure to serve witness statement to another party is that, those
witness statement filed early shall be struck out unless the Court extends time for service of
them. This is in accordance with Rule 4 of the Civil Procedure Code (Amendment of the First
schedule) Rules 2021.

Procedures for production of statement and tendering of the exhibits

Exhibits Refer to document or any tangible object presented before the Court as evidence. That
means it have been admitted, but the object which is tendered before the Court of law for
identification purpose cannot form part of evidence. The filing of the statement itself does not
amount it to be admissible in the Court of law but there are procedures required to be followed in
order to be admissible as follows

This is in respect to Rule 5 of the Civil Procedure Code (Amendment of the First schedule) Rules
2021

7
Civil Procedure Code (Amendment of the First schedule) Rules 2021.

8
Ibid
1st Attendance of witness during the hearing for the purpose of formal production of statement
and tendering of exhibits or cross examination. Thus, it is important for witness to attend in
hearing without delay.

2nd Swearing of witness before formal production of exhibits; The attended witness shall be
sworn in accordance with the law before tendering the evidence.

3rd Inclusion of the statement of witness as part of record; acceptance of formal production mark
the statement being part of the trial records and it shall be read loudly by or on behalf of the
witness

4th Cross-examination and Re-examination of the part whom his statement have been recorded; If
the part whom his statement have been recorded failure to appear for cross examination it shall
have a peculiar effect in a manner that the Court shall stuck out his statement recoded unless he
or she produce a good cause for failure to appear. The good cause may be the medical report
showing the facts that he was hospitalized and other reasonable grounds that the Court may deem
fits. As per rule 5 of the Civil procedure Code (Amendment of the first schedule) Rules 2021.

In the case of Logical height Nigeria Ltd (Appellant) Vs Cyreka East Africa Development
Co. Ltd9 Respondent) Civil Appeal no.15 of 2022 High Court of Tanzania

Brief Facts of the case

The defendant entered into a contract with the plaintiff where the defendant was required to
export the sisal fibre to Nigeria but failed to do so. The plaintiff sued the defendant claiming
TZS. 139,140,000.00 as specific damage and TZS 45,000,000.00 as general damage. The
defendant failed to file Written statement of defense and didn’t appear in Court to defend. The
Counsell of the plaintiff prayed before the Court of law the case to proceed Ex-parte. The prayer
was granted.

The plaintiff informed the Court that the intended witness will not appear due to economic
hardship in Nigeria thus, prayed to the Court so that to proceed with examination in chief by way

9
Civil Appeal no.15 of 2022 High Court of Tanzania
of written statement as per Rule 2(1) of the Civil Procedure Code (Amendment of the First
Schedule) Rules 2021.

The witness statements was filed and the date for pronouncing judgment was scheduled.
Wonderful enough the judgment was pronounced in favor of the defendant who failed to file a
written statement of defense.

The plaintiff appealed to the High Court

 The trial Court erred in law by misdirecting itself that there was no cause of action.
 The trial Court erred in law and in facts by entertaining the matter without framed issues
 The trial Court erred in law and in facts by misdirecting itself and deciding the case
basing on witness statement that was improperly moved under deleted provision.

The High Court responded on the ground of appeal as follows

It is true that the trial Court was wrongly moved by relying on wrongful provision, that is Order
XVIII Rule 2(2) of the Civil procedure Code Cap. 33 R.E 2019. The correct provision of law
ought to be Order XVIII Rule2 (1) of the Civil Procedure Code ( Amendment of the First
schedule) Rules 2021. The Judge in appellate Court stated among other things that, failure to
comply with the proper provision of law it is just like denying the appellant rights to be heard as
per Article 13(6) (a) of the Constitution of the Republic of Tanzania 10. This is under page 12 of
the cited case.

The Appellate Court concurred with Counsel of the appellant that, trial Court erred in law by
holding that there was no cause of action. This is due to fact that, the question whether a plaint
discloses the cause of action must be determined upon perusal of the plaint alone, together with
anything attached so as to form part of it and upon assumption that any express or implied
allegation are true.

10
Cap. 2 of 1977.
The manner of taking evidence

The evidence shall be taken by using the language of the Court and be written or taken
electronically, The Court shall also, allow witness to tender the evidence through video
conferences, this is due to fact the Court shall issue the video link to the witness so, that he can
be connected during the hearing day. This is according to Rule 10 of the Civil Procedure Code
(Amendment of the First schedule) Rules 2021. Also, it is according to section 13 of the
Magistrate Court Act 11

Remarks on demeanor

Demeanor Refer to the way on how the witness behave, appear before the Court of law. The
Court may record all actions or demeanor done by the witness at the time of tendering evidence.
But the Court records only relevant actions which relates to the Case at hand. Demeanor can
impact credibility to the witness. Inconsistence between the words and body language can raise
doubts about the veracity of the statement. This is according to Rule 12 of the Civil Procedure
Code (Amendment of the First schedule) Rules 2021

Court to direct shorthand;

Shorthand Refer to the method that allows the writer to writer much faster than otherwise be
able to. Shorthand normally is called stenography modern day stenographer use machines which
allow them to type in some cases. So, shorthand is a specialized way which become pivotal to
the legal industry. Thus, stenographer is a person who specializes in taking dictation in
shorthand. This is according to Rule 13 of the Civil Procedure Code (Amendment of the First
schedule) Rules 2021

11
 IN THE DISTRICT COURT OF MOSHI

AT MOSHI

CIVIL CASE NO. 22 OF 2024

BETWEEN

MATIMBULA MANDIMU………………………………………………. PLAINTIFF

VS

CHAUSIKU MWANGAZA……………………………………………DEFENDANT

WITNESS STATEMENT

1. I MATIMBULA MANDIMU, of Moshi, aged 42 years, P.O. BOX 146 am the plaintiff in this claim.
The fact in this statement come from my personal knowledge.
 2. That on 20 January 2024 Chausiku appeared before my office and we made negotiations to
enter into contract for sale of the car, worth 100M.

3. That on 10 January 2024 I succeeded to sign the contract the contract with the said defendant
mentioned supra.

4. That on 20th March 2024 the defendant breached the contractual agreement terms for failure to
pay the agreed money despite of receiving car.

5. I reminded her to pay back the amount indebted through demand letter but she did not respond
or comply with the notice.

6. That I annex the sample of contract and demand notice which will be tendered as evidence.

7. I believe that the fact stated in the witness statement are true.

Mandimu

2 may 2024.

CONTRACT AGREEMENT

This contract is entered by and between MATIMBULA MANDIMU and CHAUSIKU MWANGAZA. The term
of this shall be begin on 10th January 2024 and shall continue its termination date of 20th March 2024.

The specific terms of this contract are as follows

1.The payment shall be done in two installment

2. The first installment shall begin on the date in which the contract has been signed.

3. The second installment shall be done on the final date agreed in the contract that is 20 th march 2024.

4. The jurisdiction of the Court in case of any dispute that will arise then, Moshi District Court shall settle
the matter.

5. Once payment is done no refundable

6.The total price on the intended sale of the said asserts is 100M.
In consideration of the mutual promises sets forth herein, the first party covenant and agrees that it
shall amount to breach of contract for failure to observe any terms agreed in the contract and the
second party covenant and agrees that it shall be the duty for the breaching party to bear the
compensation for the breach of the contract.

This contract may not be modified in any manner unless in writing and signed by both parties. This
document and any other attachments hereto constitute the entire agreement between the parties. This
contract shall be binding only to the parties in contract.

The contract shall be enforced under the laws of the United Republic of Tanzania.

M. Mandimu C. Mawangaza

Signature

Chausiku Mwangaza

Signature P.O. BOX 37

Matimbula mandimu Dar-esSalaam

P.O. Box 146 10 January 2024

Moshi,

Date 10 january 2024

P.O. BOX 146

MOSHI

30TH MARCH 2024

CHAUSIKU MWANGAZA

P.O. BOX 37

DAR-ES SALAAM.

DEAR SIR,

DEMAND NOTICE CLAIMING COMPENSATION FOR BREACHING TERMS OF CONTRACT

The above captioned matter is concerned,

1.That on 10Th January 2024 you entered into the contract of car sale agreement with my client on which
my client brought the car Land lover Discovery 4 registered in accordance with Tanzania laws T.215
BPM.

2. The defendant paid TZS 50,000,000/= for the first installment but failed to pay for the second
installment as thus why this demand letter has been written to inform you pay the remaining amount.

3. The clear demand required is TZS 50,000,000.00 you are required to pay within fourteen ( 14) days
soon after the reception of this notice

4.Take notice that, failure to pay within the ambits stated days then, the matter be taken to Court so
that I can access the justice without delay.

Your faithfully,

…………………..

MATIMBULA MANDIMU