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Citation
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Judgment date
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| December 1993 |
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Reported
Evidence - Evidence of a co-accused - Whether evidence of a co-accused may form the basis of conviction - Section 30 of the Evidence Act 1967.
Evidence - Accomplice’s evidence - Whether court may convict on accomplice’s evidence without corroboration.
Evidence - Corroboration - What may constitute corroborative evidence.
Criminal Practice and Procedure - Right of the accused to be defended by advocate - Trial court ordered trial to proceed in the absence of defence advocate - Consequences thereof.
Criminal Practice and Procedure - Penal legislation - Retrospective application of penal legislation - Sentence imposed came into operation after commission of the offence - Whether proper. |
15 December 1993 |
|
Statutory minimum sentence under the Minimum Sentences Act mandated five years for theft from a scheduled public authority despite mitigating factors.
Criminal law – Sentencing – Minimum Sentences Act 1972 – Theft of property of scheduled public authority – mandatory five-year minimum where value exceeds statutory threshold; mitigating factors do not permit sentence below statutory minimum.
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14 December 1993 |
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Reported
Criminal Law - Theft - Stealing by agent - Penal Code -ss. 265 and 273.
Criminal Law - Theft - Accessory after the fact of stealing - Penal Code — ss. 387 and 388. |
14 December 1993 |
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Eyewitness identification supported by a blood‑stained knife and post‑mortem findings upheld a murder conviction; appeal dismissed.
Criminal law — Murder — Identification evidence — Credibility of eyewitnesses — Minor contradictions not fatal; possession of blood‑stained knife and post‑mortem consistent with stabbing — Appeal dismissed.
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13 December 1993 |
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Reported
Criminal Law - Acquittal of PW1 in a charge of assault before a Primary Court in which the appellant was the complainant - Whether a bar to P.W.l to complain against the appellant in a charge of assault in a District Court - Whether defence of autrefois acquit or autrefois convict could be advanced.
Evidence - Acquittal of P. W.l in a charge of assault before a Primary Court in which the appellant was the complainant - Whether a bar to P. W.l to complain against the appellant in a charge of assault in District Court - Section 141 of the Evidence Act, 1967. |
13 December 1993 |
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Conviction for robbery quashed where identification and provenance of recovered property were unreliable, causing miscarriage of justice.
Criminal law – robbery with violence – identity evidence – reliability of torchlight and voice identification; possession of alleged stolen property – provenance and timing; second appeal under s.6(7) Appeals Judicature Act 1979 – intervention where findings of fact are perverse or miscarriage of justice.
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13 December 1993 |
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Reported
Criminal Practice and Procedure -Identification - Use of torch light in identifying thieves - Whether reliable.
Appeals - Second appeal — Where findings of fact or inferences are perverse - Whether Court of Appeal can intervene - Appellate Jurisdiction Act 1979 - Section 6(7)(a). |
13 December 1993 |
|
Reported
Criminal Practice and Procedure - Charges - Robbery with violence and armed robbery - Two distinct offences attracting distinct punishments.
Criminal Practice and Procedure - Cognate offences and substituted conviction - Armed robbery and robbery with violence - Whether a conviction for armed robbery may be substituted for robbery with violence. |
13 December 1993 |
|
Dying declaration preferred over inconsistent eyewitness accounts; manslaughter conviction upheld and appeal dismissed.
Criminal law – murder v. manslaughter – malice aforethought – weight of dying declaration versus eyewitness testimony – assessors' verdicts – appellate review of credibility findings.
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13 December 1993 |
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A retracted confession lacking satisfactory independent corroboration cannot sustain a murder conviction; appellate court dismissed the prosecution's appeal.
Criminal law – confession – retracted confession – voluntariness and weight of confession – need for independent corroboration of confession – sufficiency of circumstantial evidence – appellate interference with acquittal.
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13 December 1993 |
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Whether an appellate court may overturn an acquittal where falsified pay‑in slips and consistent discrepancies show a theft modus operandi.
* Criminal law – Theft from employer – employee entrusted with cash and cheques – discrepancies between cash receipts and bank deposits; * Documentary evidence – irregular/falsified pay‑in slips and cheque possession; * Appellate review – acquittal set aside where record supports District Court conviction; * Remedy – restoration of conviction, imprisonment and restitution.
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3 December 1993 |
| November 1993 |
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Conviction for possession cannot rest on mere presence and speculative attribution of ownership; appeal allowed.
Criminal law – possession of narcotics – joint possession – presence on premises – inference of knowledge and control – conviction based on speculation v. evidence beyond reasonable doubt.
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25 November 1993 |
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Conviction for theft by a public servant quashed where evidence including a contested written admission failed to prove guilt beyond reasonable doubt.
Criminal law – Theft by public servant – Insufficiency of evidence; Credibility of store attendant’s testimony; Authorship and proof of alleged written admission; Conviction unsafe and must be quashed.
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25 November 1993 |
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Conviction based on uncorroborated accomplice evidence and procedural irregularity (s.168) was quashed; appellant released.
* Criminal law – conviction based on uncorroborated accomplice evidence – need for caution and corroboration.
* Criminal procedure – failure to comply with mandatory s.168 (recall of witnesses) upon change of magistrate – vitiates proceedings.
* Evidence – failure to cross-examine co-accused does not amount to proof of guilt or justify shifting burden of proof.
* Appellate review – adequacy of record review and reasoning required when upholding convictions.
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25 November 1993 |
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Transfer to oneself by a fiduciary without donor's consent or proof of consideration is void and appeal dismissed with costs to respondent.
Property law – Transfer to oneself – Transfer of Property Decree (Cap. 150) – transfer to oneself void ab initio; fiduciary relationship and power of attorney do not permit appropriation without donor's consent; lack of consideration vitiates sale – appeal dismissed; costs to respondent.
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25 November 1993 |
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Reported
Contract - Contract of sale - Party fails or refuses to perform an agreement - Court can order specific performance.
Court of Appeal - Appeals to the Court of Appeal originating from District Courts in Zanzibar - Whether point of law should be certified for determination by Court of Appeal- Appellate Jurisdiction Act 1979.
Court of Appeal - Appeals to Court of Appeals in cases originating from District Courts in Zanzibar - Leave of the High Court is required - Appellate Jurisdiction Act 1979. |
25 November 1993 |
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A seller cannot avoid specific performance by unproven clan objections or alleged non-payment; the valid sale must be enforced.
Property law – Specific performance – Seller’s defence based on customary/clan objections and ancestral graves – evidentiary burden to prove lawful impediment to sale – seller’s repudiation in favour of higher-priced third-party sale – obligation to execute Deed of Sale.
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25 November 1993 |
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Reported
Criminal Practice and Procedure — Appeals - Appeal against Order of the High Court - Whether by an order of the High Court refusing leave to appeal to that Court is appealable to the Court of Appeal on a point of law only.
Criminal Practice and Procedure - Appeals - Leave of the High
Court to appeal against orders — Whether orders of the High Court appealable only with leave. |
15 November 1993 |
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Conviction in absentia where accused absconded pre-close was improperly handled; matter remitted for hearing under section 226(2).
Criminal procedure — Conviction in absentia — Distinction between section 226 and section 227 Criminal Procedure Act 1985 — Where accused absconds before close of prosecution, section 226(2) governs reopening to allow accused to be heard — Misapplication of section 227 warrants remittal to trial court.
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15 November 1993 |
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Reported
Criminal practice and procedure - Right of accused to he heard - Accused persons jump bail and do not appear in court for hearing shortly before close of the prosecution case - Case proceeds in their absence - Whether conviction proper — ss 226 and 227. of the Criminal Procedure Act 1985. |
15 November 1993 |
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Whether reliable identification, undisclosed alibi, and concerted unlawful violence supported conversion of manslaughter convictions to murder.
* Criminal law – identification – visual and voice identification at night among neighbours; reliability factors. * Criminal law – evidence – minor inconsistencies do not necessarily destroy credibility. * Criminal law – participation in concert, aiding and abetting – absence of proof of single fatal blow not fatal to conviction. * Criminal procedure – alibi notice – s.194(4)-(6) Criminal Procedure Act; failure to give notice may lead to disregarding alibi. * Homicide – murder vs manslaughter – malice aforethought under s.200 and conviction under s.196. * Court of Appeal discretion – extension of time for DPP to appeal in interests of justice.
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8 November 1993 |
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Appellate court upheld five-year minimum sentences under the Minimum Sentences Act and remitted record for compensation orders.
Criminal law – sentencing – Minimum Sentences Act – offences against parastatal organisations – monetary threshold for minimum sentences – appellate increase of sentence; Criminal procedure – omission to order compensation – remittal to High Court under Rule 36 of the Court of Appeal Rules.
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8 November 1993 |
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A retrial was ordered where the trial judge’s procedural errors and denial of the prosecution’s right to reply violated natural justice.
Criminal procedure – admissibility of extra-judicial and cautioned statements – trial-within-a-trial – right to be heard/natural justice – appealability of interlocutory orders by Director of Public Prosecutions – remedy of retrial where fairness compromised.
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8 November 1993 |
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Reported
Evidence - Alibi- Supported by witnesses of both defence and prosecution - Rejected - Whether properly rejected.
Evidence - Dying declaration - Corroboration - Corroborative evidence weak and bearing unsatisfactory features - Whether can corroborate. |
8 November 1993 |
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Dying declaration and weak, inconsistent eyewitness evidence insufficient; alibi wrongly rejected—conviction quashed.
Criminal law – murder; dying declaration – admissibility and necessity of reliable corroboration; identification evidence – reliability when attack sudden and from rear; alibi – notice under procedure and assessment of sufficiency; appellate review – quashing conviction where prosecution case has material weaknesses.
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8 November 1993 |
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Reported
Criminal Law - Murder- Defence of Insanity - Person suffering from defective reasoning due to delusion but capable of understanding
hat she was doing - Whether defence of insanity applies - Penal Code, s 13.
Evidence - Expert evidence - Evidence by medical expert — Whether courts are bound by such testimony. |
8 November 1993 |
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Psychiatric illness did not negate criminal responsibility; conduct and confession showed appellant knew the nature and wrongfulness of the killing.
* Criminal law – Insanity – Section 13 Penal Code – whether accused was incapable of understanding nature or wrongfulness of act; * Psychiatry – Expert evidence – medical report not binding on court and may be rejected if inconsistent with other evidence; * Criminal law – Diminished responsibility – lack of statutory recognition and need for legislative reform; * Evidence – conduct before and after offence and cautioned statement may prove legal sanity.
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8 November 1993 |
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Reported
Criminal Practice and Procedure - Assessors - Summing up to the Assessors — Court should not influence Assessors. |
8 November 1993 |
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Reported
Criminal Practice and Procedure - Sentencing - Minimum Sentence for corrupt transactions - Sections 5(d) and 4(a) oj the Minimum Sentences Act, 1972. |
8 November 1993 |
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Reported
Criminal Practice and Procedure - Accused convicted without having been arraigned - Whether proper - Section 228 of the Criminal Procedure Code.
Criminal Practice and Procedure - Appeals- Powers of Appeal Court where trial was a nullity - Whether Court of Appeal can order retrial - Rule 36 of the Court of Appeal Rules 1979. |
8 November 1993 |
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Proceeding and convicting an accused without personal arraignment is a nullity; conviction cannot stand.
* Criminal procedure — Arraignment — Mandatory requirement that charge be stated to accused and accused be asked to admit or deny — Failure renders trial a nullity.
* Criminal procedure — Trial in absentia — Reading charges and recording pleas without personal arraignment invalid.
* Criminal procedure — Section 226(2) (setting aside convictions in absence) inapplicable where trial is null ab initio.
* Economic and Organized Crime Control Act — Section 37(4)(a) (continuation where accused absconds) inapplicable where accused never brought before court.
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8 November 1993 |
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Court affirms conviction and dismisses appeal against ten-year sentence for defilement of a child.
Criminal law – Defilement of a child under 14 – Evaluation of witness credibility – Missing PF3 does not necessarily invalidate conviction – Appeal against sentence: principle of interference only where sentence is manifestly excessive or wrong in principle.
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8 November 1993 |
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Reported
Magistrates Courts Act - Jurisdiction - A Court of Resident Magistrate presided over by a District Magistrate - Whether Court properly constituted - Criminal Practice and Procedure - Curable defects - Such defects must proceed from a trial by a Court of competent jurisdiction - Sections 387 and 388 of the Criminal Procedure Act, 1985. |
8 November 1993 |
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Reported
Criminal Practice and Procedure - Sentencing - Powers of the Court of Appeal to interfere with sentence. |
8 November 1993 |
|
Court upheld six-year sentence for fatal, brutal corporal punishment of a ten-year-old; appeal against sentence dismissed.
Criminal law – homicide by excessive corporal punishment of a child – sentencing; appellate review of sentence – mitigation and deterrence – interference only for misdirection or manifest excess.
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8 November 1993 |
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Trial and High Court erred by awarding judgment to a non‑party; Court of Appeal ordered retrial and set aside judgments.
Civil procedure – trial court must decide disputes on pleadings, issues and evidence – improper award of judgment to a non-party; Appellate procedure – High Court cannot determine a non-existent appeal; Remedy – setting aside judgments and ordering retrial under Appellate Jurisdiction Act s.4(2).
|
1 November 1993 |
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A sale by an estate administrator to a bona fide purchaser at public auction remains valid despite challenges to the administrator’s appointment.
* Probate and Administration – powers of administrator to sell estate property – ss.95 and 97 of the Probate and Administration Ordinance. * Property law – bona fide purchaser for value without notice – protection of title where sale conducted at public auction. * Evidence – validity and probative value of consent and receipt documents in estate sales. * Appellate review – concurrence with lower courts where no fraud in sale is shown.
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1 November 1993 |
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1 November 1993 |
| October 1993 |
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Conviction upheld: improperly admitted JP evidence and confession excluded, but reliable identification and recent possession sustain conviction.
Criminal procedure – Section 289 – witness whose statement was not read at committal – mandatory requirement of reasonable written notice; Evidence – extra‑judicial statements/confessions – retracted confessions and caution in reliance; Identification evidence – evaluation of inconsistencies between police statement and court testimony; Corroboration – recent possession of stolen property as support for identification-based conviction.
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25 October 1993 |
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Reported
Criminal Practice and Procedure — Statement of Witness or substance of evidence not read at committal proceedings - Whether witness can testify for prosecution at the trial - Section 289(1) of the Criminal Procedure Act, 1985.
Criminal Practice and Procedure - Witness - Notice to accused or Advocate of intention to call witness - Contents of such notice - Criminal Procedure Act 1985, s 289(2).
Evidence - Extra-judicial statement retracted at trial- Whether it can be relied upon. |
25 October 1993 |
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An order of compensation under s.348(1) is part of the sentence; appeals against its severity under s.6(7)(a) are incompetent.
Criminal procedure – Compensation under s.348(1) Criminal Procedure Act – Compensation forms part of sentence – Appeals under s.6(7)(a) Appellate Jurisdiction Act limited to matters of law and exclude severity of sentence – Appeal against compensation incompetent.
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25 October 1993 |
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Post-mortem and circumstantial evidence established murder despite defence claim of suicide; appeal dismissed.
* Criminal law – murder – circumstantial evidence – sufficiency of inference from custody, control of keys and guarding to prove accused caused death; * Forensic evidence – post‑mortem findings disproving hanging and showing death by eye perforation and hemorrhage; * Evidence law – fanciful or remote possibilities do not create reasonable doubt.
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25 October 1993 |
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Reported
Evidence - Strong circumstantial evidence - Only remote possibility left in favour of an accused - Whether sufficient proof of charge established. |
25 October 1993 |
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Reported
Court of Appeal Rules - Notice of Appeal - Service of Notice of Appeal - Proof of service of notice on the Respondent - Rule p 77(1) of the Court of Appeal Rules 1979.
Court of Appeal Rules - Notice of Appeal and letter of application for copy of High Court proceedings - Non-service of Notice of Appeal and copy of application letter: consequences thereof- Rules 77(1) and 83(2) of the Court of Appeal Rules 1979. |
25 October 1993 |
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Respondent’s registered right of occupancy upheld; only three appellants who developed land pre-dispute entitled to compensation.
Land law – Right of occupancy – Section 6(1) Land Ordinance – native authority consultation – customary allocations – proof of allocation (oral evidence acceptable if credible) – bona fide developers – compensation for unexhausted improvements – effect of unsurveyed boundaries and timing of dispute.
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14 October 1993 |
| August 1993 |
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Appeals from Primary Court matters require a High Court certificate of a point of law; Court of Appeal cannot grant that itself.
Appellate jurisdiction – Appeals from Primary Court proceedings – section 5(2)(c) Appellate Jurisdiction Act – High Court must certify existence of point of law before appeal to Court of Appeal; Court of Appeal cannot certify to itself; "leave to appeal" inapplicable to Primary Court origin matters; decision of single judge granting leave without High Court certificate null and void.
|
30 August 1993 |
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Reported
Labour Law - Summary dismissal- Jurisdiction of the courts in cases of summary dismissal- Security of Employment Act, Cap 574.
Constitutional Law - Basic rights enshrined in the Constitution - The right to seek redress in court and ouster of court's jurisdiction - Section 28 of the Security of Employment Act and article 30 of the Constitution. |
30 August 1993 |
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An appellate court must not decide an unpleaded ground without giving the affected party a fair opportunity to be heard.
* Civil procedure – appeal – raising and deciding issues not pleaded – Order 39 rule 2 – mandatory requirement to afford affected party opportunity to contest any ground raised by the court suo motu.
* Contract – rescission – undue influence – court cannot uphold rescission on unpleaded ground without procedural fairness.
* Remedies – specific performance – appellate review where primary finding is procedurally flawed.
* Property – ownership of fixed deposit demonstrated by renewals and certificate; money to be restored to holder.
|
30 August 1993 |
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Reported
Civil Practice and Procedure - Appeals - Memorandum of appeal -Memorandum of appeal makes no reference to undue influence and no leave of Court sought and obtained to argue the issue on appeal -Whether the Court may entertain the issue suo motu - Rights of the other party - Order 39 rule 2, Civil Procedure Code. |
30 August 1993 |
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Reported
Subsidiary legislation - Staff Regulations for Cooperative Unions -Staff Regulations to apply for all cooperative unions in the country not yet made by the competent authority - Respondent union makes own staff regulations for itself - Whetherthe regulations made are valid -Sections 20(2)(c) and 165(2)(h) of the Cooperative Societies Act 1982
Human Rights - Basic rights and duties under the Constitution - The right to work - Whether the right to work imposes a duty to employ or to continue employing a person - Article 22 of the Constitution of the United Republic of Tanzania 1977 |
30 August 1993 |