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preliminary objections, grounds for preliminary objections


This post is about preliminary objections, here you will learn;



    What is a preliminary objection?

    Preliminary objections (P.O) refer to the legal issues raised by any party in a civil case which requires court determination before proceeding to the main case. Preliminary objections is an opportunity available to the parties of the case, to tell the court that there is a problem based on the point of law which must be decided before the main case.

    How preliminary objections works


    A party wishes to raise preliminary objections must give notice to that effect. Among other things the notice of preliminary objections must contain grounds for objection and prayers to the court.

     

    The notice of preliminary objection can be featured in a written statement of defence or filled separately.

     

    See: sample of a written statement of defence with the preliminary objection

     Once filled, or in any other proper way presented in court, the court must determine the objections first before proceeding with the main case.

     In entertaining the objections court will allow each party to presents his arguments either orally or in written form. After hearing the arguments from each party court will issue its ruling.

     When court allows the objections, it will make any order that it may think fit in relation to the objection raised. In most cases, the suit is dismissed.

     When court rejects the objection, it will proceed to hear the main suit.

     Grounds for preliminary objections

     The following may be the grounds of preliminary objections


    1.  Jurisdiction- that the court has no jurisdiction to determine the case
    2. Res-judicata- This ground tell the court that the cause of action has been already determined by the court in another case. The doctrine of res judicata bars litigation on a point which has been a subject of litigation in a previous suit.
    3. Res sub-judice- this ground tell the court that there is a similar case which is pending before the court (Res sub judice bars litigation in two suits simultaneously.)
    4. Limitation of time- This ground is to the effect that the suit is time-barred
    5. The pleading violates important provisions of the law; for example, plaint does not disclose cause of action.
    6. Admissibility of evidence- a party can object that a certain piece of evidence is not admissible.
    7. Misjoinder of parties
    8. Non-payment of court fees
    9. Etc.

     NB: the list above is not exhaustive. Generally, in civil cases, anything that contravenes the law may be a good ground for preliminary objection.

     Sample of notice of preliminary objections


    IN THE COURT OF APPEAL OF TANZANIA

     AT DAR ES SALAAM

    CIVIL APPLICATION NO...... OF ..........

    between

     

     

    A AND B                                                                    Appellant

     

     

    And

     

     

    X AND Y                                                                 Respondent

     

     

    (Revision from the High Court of             Zanzibar at Vuga-Zanzibar, The Hon. .......... dated .......... in Miscellaneous Civil Application No... of......)

     NOTICE OF PRELIMINARY OBJECTION

    (Made under Rule 107(2) of the Tanzania Court of Appeal Rules, 2009)


     NOTICE IS HEREBY given that at the commencement of the hearing of the Application, preliminary objection will be raised on behalf of the Respondent asking the Honourable Court to dismiss and/or strike out the Application on the following grounds that: -

     

    a)            The Application is misconceived and incompetent because it improperly seeks to move this Honourable Court to exercise its revisional jurisdiction; and

     

    b)            The application is an abuse of the Court process.

     

     

    Dated at Dar es Salaam this ________   day of November.....

                                                                                                                               

              __________________________________       

                  ADVOCATE FOR THE RESPONDENT

      

    Lodged in the Registry at Dar es salaam this  _________  day of  November 2...

     

                                                                                                                                                  ___________

                                                                                                                                                  REGISTRAR

     

      

    COPY TO BE SERVED UPON:

    YYY (Advocates)

    LAW Building

    6th Floor Wing B

    Azikiwe Street

    P.O. Box 11111

    DAR ES SALAAM

      

    DRAWN AND FILED BY:

     

    XXX

    Advocates

    9th Floor, PPF Tower

    Garden Avenue/Ohio Street

    P.O. Box 0000

    DAR ES SALAAM

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