QUESTION APPROACH

INTRODUCTORY REMARKS

-concept of final speeches

-anatomy of final speeches

MAINBODY

-laws governing final speeches

-procedure for making a final speeches

-purpose of final speeches

CONCLUSION

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INTRODUCTORY REMARKS

Generally the purpose of rules of civil procedure is to bring out matters in controversy between parties in court so that they can be determined. For those matters to be clearly shown and discussed court uses final speeches as one of the ways though not mandatory.

This paper is set out to discuss; what are the final speeches, their anatomy, the law governing them and the procedure for making them, the purpose for making them then conclusion will be drawn.

Concept of final speeches

After presentation and close of evidence from both parties during hearing, parties are given a chance to address the Court generally on evidence given in a whole case. This final addresses are usually referred as final submissions.1

Final submission are argument made by the parties, scrutinizing evidence adduced in court and law with intention of asking the court to decide in favor of the party’s side.2 Final speeches are made after hearing of the case and before judgment. They might be in writings or oral presented.

Anatomy of the final submissions

Its content are like judgment though base on favor of the one making , it start with summary of evidence adduced, the aggrieved facts, issues or point of determinations, the balance of probability, evaluation of evidence( weak and credible evidences), conclusion of facts and finally the law applicable

MAINBODY

Laws governing final submissionsGenerally the laws governing final speeches are few as even The Civil Procedure Code3 does not clearly provide for it. The following are those laws;

-The civil procedure code4 -The Primary Court civil Proceeding Rule5 made under S.65 of The Magistrate Courts Act6

-The Criminal Procedure Act7

1 Chipeta (2002) Civil Procedure in Tanzania; Student Manual, pg 1992 Pearsell, J & Hanks P (2006) Oxford Law Dictionary, pgs 9853 [CAP 33 RE 2002]4 ibid5 GN 310 of 19646 [CAP 11 RE 2002]7 [CAP 20 RE 2002]

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Procedure for making final speeches be it oral or written

Generally in practice final submission are optional depending on the willing of the parties if they intend to make it or not this is stipulated so by the use of the word “may” on the provisions of governing rules mentioned above, though the following are the procedure for one intends to make it in practice.

Notify the court on the intention to make a final submission, after closer of hearing prosecutor or advocate will be asked by the court if they want to make a final submission depending on the complexibility of the case if so they will notify the court then the court will order and fix the date for speech on part of plaintiff and defendant as stipulated under S. 233 of Criminal Procedure Act8 as the procedure for making final speech are mutatis mutandis with civil cases.

Language used; the language in Primary court is Swahili9 and in District, Resident and High court the language is Swahili and English for the matter of proceeding but records shall be in English10 this rule automatically applies to final speech.

Right to begin; by virtual of Rule 45(2) of Primary Court Civil Proceeding Rule11at the conclusion of the evidence the parties ma if they wish address the court, the defendant first then the claimant also under Oxviii r 2(2) and (3) which states interalia that the defendant may start then the plaintiff may reply.

Final submission are not allowed in appellate court especially in the Court of Appeal it is useful only in court with original jurisdiction to determine the matter at first instance like Primary Court(governed under Primary court civil proceeding Rule) District, Resident and High court (governed by Civil Procedure Code)

In writing of final submission, it must adhere to the following rules;

Summary of evidence; a good lawyer will make a summary of evidence centraling on important evidence he think may be useful in determination of core issues. Also a Lawyer must review evidence focusing on points which support your case

Issues and Law; the final speech must be directed to the issues and law raised during examination of witnesses.

Do not waste time in obvious issues; as this kind of issues are presumed to be known by the parties and court.

8 Op cit9 Cap 1110 Section 3 of Cap 33 op cit11 supra

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Be selective in applying the law; although final speech must be full of authority but the must be relevant one as this will help to avoid the blast of the Judge.

Be careful with public policy

Underline citation

Note attitude of the judge

Purpose of final submissionTo point out to the court the material facts which the part has established in their favorTo identify matters in dispute(issues)To give summary of the evidenceTo converse the Judge to decide on favor of the party making it.To help the Judge in determination of the case as both parties clearly identify their issues.

CONCLUSIONAs aforesaid final submissions are important in any case especially in complex one as they help the court in directing its mind in issue identified but there still problem as no law provides for contents of it so we are of the view that at least the Code should be amended to provide rules and procedure for making a final speeches.

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