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Citation
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Judgment date
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| December 1995 |
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Reported
Civil Practice and Procedure - Arbitration -Reference to arbitration - Claim for money admitted but theparty admitting refuses to pay - Whether there is a dispute to refer to arbitration .
Civil Practice andProcedure - Reference to arbitration -High Court dismisses suit and refers parties to arbitration without establishing that the party opting for arbitration is ready and willing to arbitrate - Whether proper — Section 6 ofthe Arbitration Ordinance, Cap 15 |
8 December 1995 |
| November 1995 |
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(From the judgment of the High Court of Tanzania at Dar es Salaam, Bahati, J) Criminal Law — Armed robbery - What constitutes armed robbery? Criminal Practice and Procedure - Charges — Charge of robbery with violence - In the commission of the offence, an arm is used - Whether the offence committed is one of armed robbery |
28 November 1995 |
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Use of a knife in robbery constitutes armed robbery, justifying the enhanced sentence; age claim raised too late and contradicted by record.
Criminal law – robbery with violence – armed robbery – use of a knife constitutes use of a dangerous or offensive weapon under Act No. 10 of 1989 and section 286 Penal Code; sentencing – 30 years’ imprisonment and caning lawful; procedure – age/juvenile status must be raised and supported on earlier proceedings; sworn statement as evidence of age.
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28 November 1995 |
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Full bench not warranted; failure to provide address for service remains consequential, locus standi question for ordinary panel.
Civil procedure – Full bench application – Whether earlier decision (Mvita) decided locus standi – Requirement to furnish address for service (Rule 79) – Consequences of failure to supply address – Issue for ordinary three-judge panel.
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27 November 1995 |
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Court refused full-bench hearing, held address-for-service requirement remains, locus standi issue left for a three-judge panel.
Civil procedure – service – requirement for respondent to supply address for service under court rules remains obligatory; prior decision in Mvita Construction Co. Ltd. did not eliminate the requirement or decide whether failure to supply an address deprives a respondent of locus standi; question to be determined by ordinary three-judge panel; application for full bench dismissed.
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27 November 1995 |
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Application for a full bench to overturn prior decision denied; failure to provide address for service remains a procedural breach to be decided by a three-judge panel.
Civil procedure – requirement for respondent to supply an address for service – noncompliance may have consequences but does not automatically extinguish locus standi; issue distinct from limitation rulings in Tanzania Harbours Authority v. Mvita Construction Co. Ltd. Court composition – full bench not warranted where earlier decision did not decide the specific legal point sought to be reopened.
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27 November 1995 |
(From the decision of the High Court of Tanzania at Dar es Salaam, Bubeshi, J) Civil Practice and Procedure - Temporary injunction - When applicable — Order 37 Rule 1 of the Civil Procedure Code. P Civil Practice and Procedure - Temporary Injunction - Order of injunction sought to set aside the sale of a house - Whether proper. Civil Practice and Procedure - Temporary injunction - Whether it may be issued against a stranger to the suit. Banking Law — Securities - Mortgages - Mortgage deed empowering P mortgagee to sell the mortgaged property - Whether and under what circumstances the court may interfere with such sale. |
24 November 1995 |
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Absence of a statutory certificate on a cautioned statement is not automatically fatal; voluntariness must be determined and conviction was otherwise supported.
Evidence — Cautioned statement — Requirement of statutory certificate (s.57(3)) — Absence not automatically fatal; challenge requires trial-within-trial to determine voluntariness. Criminal law — Defences of intoxication and provocation — Rejection where eyewitness testimony and post-offence conduct show capacity and deliberate action. Murder — Intent inferred from targeted, forceful blows causing skull fracture.
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23 November 1995 |
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A court cannot extend limitation periods suo motu; extension under section 14(1) requires an application and opportunity to be heard.
Limitation of actions – Law of Limitation Act – section 3(1) (dismissal of proceedings after expiration of limitation) – section 14(1) (court’s power to extend time) – extension of limitation periods requires an application; court cannot extend time suo motu – procedural fairness and judicial exercise of discretion.
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21 November 1995 |
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A court may not extend limitation time suo motu under s.14(1) without first giving parties an opportunity to be heard.
Limitation of actions — Law of Limitation Act s.14(1) — extension of time for instituting an application — whether court may extend time suo motu — procedural fairness — need to afford parties opportunity to be heard before enlarging limitation period; rectification of land register; locus standi; proper forum.
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21 November 1995 |
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Court taxed costs limited to Court of Appeal items and disallowed unsubstantiated claims lacking receipts.
Taxation of costs – scope limited by Rule 118(1) to Court of Appeal costs – requirement for receipts and particulars – unsubstantiated claims disallowed – unsupported 'add half of all items' claim rejected.
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14 November 1995 |
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Court affirms armed-robbery conviction and 30-year sentence; identification, recent possession and urgent warrantless search upheld.
Criminal law – robbery with violence v. armed robbery – use of firearm constituting armed robbery and application of statutory minimum sentence (Act No. 10 of 1989). Evidence – identification parades – irregularities do not automatically vitiate identification; effect depends on circumstances and opportunity to observe. Evidence – recent possession – recovery of stolen property soon after offence supports inference of guilt. Procedure – warrantless search permissible where urgency and reasonable grounds exist under Criminal Procedure Code; absence of warrant does not necessarily destroy evidentiary value. Procedure – trial irregularities and withdrawal of counsel – unspecified complaints and adjournments to obtain counsel do not automatically require hearing de novo or amount to miscarriage of justice.
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7 November 1995 |
(From judgment of the High Court of Tanzania at Mwanza, C Masanche, J) Civil Practice and Procedure - Appeals - Appeals to Court ofAppeal of Tanzania — Where appeal must be with leave ofthe High Court and no such leave is sought and obtained - Appeal incompetent - P Appellate Jurisdiction Act, 1979, s 5(l)(c). |
6 November 1995 |
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Appeal dismissed for raising a limitation point for the first time on appeal and failing to obtain required High Court leave.
Appeal procedure – limitation point raised for first time on appeal – Court of Appeal not to decide issues not raised below; Appellate Jurisdiction Act s.5(1)(c) – requirement of leave from High Court for certain appeals – non-obtaining leave renders appeal incompetent.
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6 November 1995 |
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Second appeal dismissed; convictions upheld based on hot-pursuit arrest and omnibus sentence corrected to concurrent eight-year terms.
Criminal law – unlawful possession of firearm and ammunition – sufficiency of evidence where accused arrested on spot following hot pursuit. Evidence – police witness testimony – no general requirement of corroboration where arrest and circumstances support credibility. Appeals – second appeal limited to points of law. Sentencing – irregular omnibus sentence corrected to specified concurrent terms.
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6 November 1995 |
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High Court's revisional powers are limited by statutory grounds; Limitation Act does not strictly govern probate applications.
• Civil procedure – revisional jurisdiction – High Court’s power under Magistrates' Courts Act s.43(2) read with Civil Procedure Code s.79 – limits on revision. • Probate law – limitation – Law of Limitation Act not strictly applicable to probate; Probate and Administration Ordinance (s.31(1)) governs delayed applications. • Administrative law – supervisory powers wide but not limitless; statutory grounds required for revision.
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6 November 1995 |
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Ignorance of procedure and unproven ill health do not justify extension of time to file an appeal.
Civil procedure – extension of time to file reference/memorandum of appeal – Rule 57(1) Court of Appeal Rules – ignorance of law not an excuse – need for evidence of illness – prospects of success in underlying probate matter relevant to grant of extension.
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3 November 1995 |
| October 1995 |
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Vendor's refusal to execute sale documents breached a binding agreement; lack of Commissioner approval did not negate the agreement.
Land law – disposition of a right of occupancy – effect of Commissioner for Lands' approval under Land Regulations, 1948 (Reg. 3(1)) – inoperative transfer vs existence of binding agreement. Contract law – breach by vendor for refusing to execute sale documents – equitable defence unavailable where breach causes lack of approval. Civil procedure – appellate limitation on entertaining unpleaded allegations of fraud.
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27 October 1995 |
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Reported
Civil Practice and Procedure — Revision — When court’s revisional jurisdiction may be invoked - Where appellate process has been blocked by judicial process — Decision of High Court dismissing application for extension of time not such a judicial process
Civil Practice and Procedure - Revision - When application must be brought - Application made 10 months afterjudgment time barred |
27 October 1995 |
(From judgment of the High Court of Tanzania at Dar es Salaam, Mkude, J) ' Contract - Contract of Sale of Land - Agreement reached but vendor refuses to sign it despite benefiting from consideration furnished by purchaser - Effect thereof Land law - Disposition of interest in land - Agreement is made but vendor despite receiving and benefiting from consideration under the agreement, refuses to sign it - Consent to transfer not sought and obtainedfrom the Commissoner for Lands - Whether there was a sale agreement - Rule 3 of the Land Regulation. |
27 October 1995 |
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Reported
Debtor and Creditor - Loan agreement - Debenture to secure such loan - Rectification sought of amount repayable stated thereon - When such rectification competent - Section 85 of the Companies Ordinance, Cap 212.
Law ofLimitations- Fraudulent misrepresentation - Effect on limitation of proceedings - Section 26(a) of the Law of Limitation Act. |
26 October 1995 |
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Proceedings challenging subsidiary legislation were void because the Attorney-General was not summoned as required by statute.
Constitutional procedure – Section 17A(2) L.R. Ordinance (as amended) – Attorney‑General must be summoned as party where constitutionality of subsidiary legislation is raised; failure to summon or direct ex‑parte hearing renders proceedings null and void.
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26 October 1995 |
(From the judgment and decree of the High Court of H Tanzania at Dodoma, Mwalusanya, J) Constitutional interpretation - Parties to proceedings involving interpretation of Constitutional provisions enshrining basic freedom, rights, and duties - Attorney General a necessary party - Section 1 17A(2) of the Law Reform (Fatal Accidents and Miscellaneous |
26 October 1995 |
(From the decision of the High Court of Tanzania at Dar es Salaam, Chua, J) Administrative law - Prerogative orders - Order of Preventive detention made and effected after an accused's acquittal by Court - Whether such detention legal. |
23 October 1995 |
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Reported
Company Law - Winding up - Creditors’ claims against company in liquidation - Proof of debt on affidavit is required for cause of action - Companies (Winding Up) Rules, 1929. |
23 October 1995 |
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Whether detention under administrative Preventive Detention powers after an acquittal unlawfully infringed the appellant’s liberty.
Criminal procedure – habeas corpus – legality of detention following acquittal – Preventive Detention Act – use of administrative detention after termination of criminal proceedings. Constitutional law – jurisdictional limits – court should not decide issues not pleaded or properly before it. Distinction from cases where administrative detention was used to countermand interim court orders while proceedings were pending.
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23 October 1995 |
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Whether post-acquittal detention under the Preventive Detention Act lawfully infringed the applicant’s liberty rights.
• Criminal procedure – Habeas corpus – challenge to detention following acquittal – scope and limits of habeas corpus applications.
• Evidence and procedure – raising new issues in reply affidavits – whether a constitutional challenge may be introduced late in proceedings.
• Constitutional law – Preventive Detention Act – question of constitutionality improperly raised in reply and left undecided for a future appropriate case.
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23 October 1995 |
(From the conviction and sentence of the High Court of Tanzania at Dar es Salaam, Mackanja, J) q Criminal law - Murder- Provocation - When the defence ofprovocation is available. |
23 October 1995 |
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Claims in a liquidation must be proved under the Companies (Winding Up) Rules; unproved claims are premature and not maintainable in court.
Company law – Winding up – Proof of debts – Claims against liquidator must be proved under Companies (Winding Up) Rules 1929 (affidavit verification). Employment law – Terminal benefits and repatriation costs – delay due to insolvency not necessarily neglect. Civil procedure – Prematurity of suit where statutory proof in liquidation has not been complied with. Liquidator's role – Liquidator entitled to determine validity of claims presented for proof.
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23 October 1995 |
Administrative Law - Political Parties – Registration and Compliance with Constitutional Rights |
20 October 1995 |
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Reported
Elections - Election petitions - Meaning of election petition - Elections Act 1985
Elections - Election petitions - Jurisdiction to hear election petitions under the ElectionsAct 1985 - Whether resident magistrate court has jurisdiction |
17 October 1995 |
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A Registrar’s certificate referring to a different ruling cannot save the applicant’s late appeal; appeal struck out.
Civil procedure – appeal time limits – rule 83(1) certificate – Registrar’s certificate referring to wrong ruling cannot validate an otherwise late appeal – appeal struck out under rule 82.
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13 October 1995 |
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Stay of execution granted where execution would cause irreparable loss despite procedural objection to the notice of appeal.
Court of Appeal – Rule 82 – requires applicant to have been served with notice of appeal; Rule 9(2)(b) – stay of execution – discretionary judicial exercise; irreparable harm and balance of convenience – stay granted; leave to appeal not determinative at stay stage.
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2 October 1995 |
| September 1995 |
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State radio commentary during trial breached the presumption of innocence; acquittal replaced by discharge.
Constitutional law – fair hearing (Art.13(6)(a)) – presumption of innocence (Art.13(6)(b)) – pre-trial/public commentary by state media – prejudice to lay members and public – remedy: discharge versus acquittal.
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15 September 1995 |
(From the decision of the High Court of Tanzania at Dar es Salaam, Mwaikasu, J) Evidence - Relevance and admissibility - Evidence adduced in support of a charge which is dismissed for want of consent to prosecute - Whether relevant and admissible to support any other charge in the same information - Section 11 of the Evidence Act, 1967. Evidence - Circumstantial evidence - Knowledge presence of drugs - Whether may be inferred from the circumstances obtaining. Criminal law - Unlawful possession of Dangerous drugs - Drugs hidden with the knowledge and approval of a person - Whether the person with knowledge and giving approval is in possession of those drugs. Evidence - Unlawful importation of Dangerous drugs - Drugs imported into Tanzania - Drugs found in expensive and expertly constructed and sealed devices fitted to disguise - Whether knowledge and approval of the owner of the trucks can be inferred. |
12 September 1995 |
| August 1995 |
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Failure to file a memorandum within sixty days deems the notice of appeal withdrawn; appeal struck out.
Civil procedure – Appeal – Requirement under rule 83 to file memorandum of appeal within sixty days of notice of appeal – Failure to comply deemed withdrawal under rule 84 – Impecuniosity does not excuse non‑compliance with procedural time limits.
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31 August 1995 |
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Appeal dismissed: eyewitness identification upheld; murder conviction and accessory sentence affirmed.
Criminal law – Eyewitness identification – Contemporaneous observation and prompt reporting; identification parade non-identification not fatal where accused absent; credibility of corroborated witnesses; murder v. manslaughter – evidence of assault and post-mortem asphyxiation supports murder conviction; sentencing – accessory after the fact, five years not excessive.
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23 August 1995 |
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Whether provocation reduces murder to manslaughter where the appellant admitted stabbing the sick husband and attempted concealment.
Criminal law – Murder – Provocation – Whether provocation reduced murder to manslaughter where accused admitted stabbing sleeping, sickly victim; cautioned statements and language competence; concealment and absence of struggle indicative of malice aforethought.
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23 August 1995 |
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Appeal dismissed: non-compliance with redemption condition and inappropriate late raise of certified point of law.
Civil procedure – attachment and sale of property – attachment of residential house and sale at auction; Redemption rights – requirement to refund purchaser in full within court-granted grace period; Appeals – raising a point of law for the first time in the Court of Appeal; Finality of execution – challenge to original attachment cannot be introduced in separate proceedings at appeal stage.
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23 August 1995 |
(From the conviction and sentence of the High Court of Tanzania at Iringa, Mchome, J) Evidence - Identification - Identified persons not strangers to the identifying person - circumstances favorable for unmistakable identity. Evidence - Identification - Identification parade - Appellants not identified because they were not in the parade - Whether failure of identification. |
23 August 1995 |
(From the judgment and decree of the High Court of Tanzania at Dar es Salaam, Kyando, J) Land Law - Land Registration - Powers of Registrar of Titles - Whether the Registrar has power to determine issues as to land ownership - Section 105 of the Land Registration Ordinance. |
22 August 1995 |
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Registrar had no jurisdiction under s.105 to determine ownership of registered land; proceedings were null and void.
Land Registration Ordinance s.105 – scope and limits of Registrar's powers – order to attend and produce documents – confined to questions about register entries or memorials, not substantive ownership of registered land. Registered land – ownership disputes – Registrar lacks jurisdiction to determine substantive title outside register-entry issues. Procedure – acts done without jurisdiction are null and void; appeals founded on such acts are incompetent.
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22 August 1995 |
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Section 105 does not empower the Registrar to decide ownership of registered land; such investigations are void.
Land registration — Section 105 scope — Registrar of Titles’ powers limited to questions regarding entries in the land register — Registrar lacks jurisdiction to determine substantive ownership disputes of registered land — Proceedings and appeals founded on ultra vires investigations null and void.
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22 August 1995 |
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Convictions quashed because identification evidence was inconsistent and unsafe, resolving doubts in favour of the appellants.
Criminal law – Identification evidence – contradictions between contemporaneous police statement and in-court identification; number of assailants inconsistency. Criminal procedure – Second appeal limitation to questions of law but court may intervene where both lower courts overlooked material points on identification. Evidence – benefit of reasonable doubt where identification is unsafe.
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21 August 1995 |
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Whether a company was validly dissolved and whether a non‑party successor could be condemned to repay a debt.
Company law – striking‑off and dissolution – requirements under Companies Ordinance; Civil procedure and natural justice – inability to condemn or substitute non‑party successor; Property/security – release of title deeds to correct party.
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21 August 1995 |
(From the decision of the High Court of Tanzania at Arusha, Munuo, J) H Land Law - Certificate of right of occupancy - Letter of offer of right of occupancy given jointly to husband and wife - Mortgage deed on right of occupancy executed jointly by husband and wife - Title deed issued in the name of husband alone - Whether proper Contract — Sale of a house jointly owned - One joint owner selling the house without the consent of the other - Whether title can pass. Contract -Illegality - Sale of a house - Two sale documents, with one indicating a lower sale price with the intention to defraud internal revenue - Contract void for illegality - Consequences thereof Evidence - Admissibility - Stamp duty - Sale of a house agreement - Sale document not bearing stamp duty - Whether admissible in evidence. Stamp duty - Sale of a house agreement - Sale document does not bear stamp duty - Whether admissible in evidence. |
3 August 1995 |
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Whether the disputed land belonged exclusively to the applicant's late father or was common family grazing land.
Land law – Ownership dispute – Whether parcel was exclusive title of deceased father or common family grazing land; Appellate review of factual findings – caution in overturning trial judge; Raising new issues on second appeal – unfair if not raised earlier; Use of prior proceedings’ records – cannot be used to contradict witnesses unless tested at trial.
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3 August 1995 |
(From the decision of the High Court of Tanzania at Arusha, £ Munuo, J). Tort - Damages - Whether to include an element to offset the effect of inflation and devaluation. Civil Practice and Procedure - Costs - Court awards the costs of the suit - Whether proper. Civil Practice and Procedure — Interest - From date of filing suit to date of final judgment - Interest on judgment debt |
3 August 1995 |
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Appeal struck out for incomplete record; sale and title obtained by fraud and tax‑evasion are void.
Civil procedure – Appeal record completeness – Rule 89(1)(h) – omission of order appealed against – appeal struck out under rule 3. Land/title – Certificate of Right of Occupancy issued in sole name – fraudulently obtained – deprives co‑owner. Contract law – Sale agreement colluding to understate price to evade tax – illegality/fraud on the revenue – contract void ab initio. Evidence/Stamp Duty – Unstamped sale documents inadmissible absent payment of stamp duty.
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3 August 1995 |
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Title fraudulently obtained; sale void for vendor’s lack of consent and contract illegality, appeal dismissed with costs.
Land law – Right of Occupancy and Certificate of Title – fraudulently obtained title; Contract law – sale of matrimonial property – vendor’s incapacity to sell without spouse’s consent; Illegality – contracts to defraud revenue unenforceable; Evidence – documents unenforceable/admissible where stamp duty not paid.
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3 August 1995 |