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Citation
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Judgment date
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| December 1997 |
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Stay granted where trial court made substantive estate and tenancy orders despite finding suit defective, risking appellant’s irreparable eviction.
* Civil procedure – Stay of execution pending appeal – applicant must show prima facie prospects of success and irreparable injury. * Probate and administration – non-joinder of heirs – effect on jurisdiction to make substantive orders. * Property/tenancy – appointment of administrators and imposition of tenancy arrangements where suit defective.
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23 December 1997 |
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Stay of execution granted where trial judge’s orders were doubtful and eviction would cause irreparable hardship.
* Probate and administration – appointment of administrators – validity of orders made after finding suit bad for non-joinder or premature issue. * Civil procedure – stay of execution – requirements: prospects of success and irreparable injury; balance of convenience. * Family/tenancy – status quo preservation where eviction would cause hardship.
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23 December 1997 |
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Monetary loss from complying with a reinstatement order does not, without more, justify a stay of execution.
Labour law – stay of execution – whether leave to appeal required under s.17(5) – irreparable harm – monetary loss not ordinarily irreparable – reliance on Bank of Tanzania precedent.
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18 December 1997 |
(An application for striking out of a notice of appeal from the decision of the High Court of Tanzania, Dar es Salaam, Msumi J) „ Civil Practice and Procedure - Appeal - Application to strike out Notice of Appeal - Rule 76(2) of Court of Appeal Rules 1979 - To be read with Rule 6(a) in counting days and computing time scales. Civil Practice and Procedure - Appeal - Rule 83 requiring appellant to institute an appeal within 60 days of filing notice of Appeal - Appellant’s application for a copy proceedings not complied with by the Registry - Appellant having copied a letter to all relevant parties - Rule 83 complied with. |
17 December 1997 |
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Where costs arise in both the High Court and Court of Appeal, separate bills must be presented and taxed in each court.
* Civil procedure – Taxation of costs – Jurisdiction of taxing officer under Court of Appeal Rules r.118 – Limits to taxation of High Court costs by Court of Appeal taxing officer.
* Advocates’ remuneration – Rule 118(3) and Advocates' Remuneration and Taxation of Costs Rules – where remuneration is to be taxed.
* Procedure – Mixed bills of costs arising in different courts must be presented and taxed separately.
* Costs assessment – Court’s power to assess or direct taxation (rules 107, 115) not inconsistent with taxing officers’ powers (r.118).
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16 December 1997 |
Civil Practice and Procedure - Appeals - Defect in appeal - Proper course Memorandum of appeal not conforming with Order IX Rule 2 - Appeal ought not to be dismissed Civil Practice and Procedure - Representation of parties - When it can be inferred that counsel duly instructed Civil Practice and Procedure - Summons - Service of- Party claiming non-receipt of notice although summons served on employee at party's address - Person who received summons not called to testify on whether party aware of summons |
12 December 1997 |
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Notice of appeal struck out for failure to lodge record and memorandum within prescribed 60 days; counsel's mistake insufficient.
* Appeals – Court of Appeal Rules 1979 – Rule 83: mandatory requirement to lodge memorandum and record of appeal within 60 days of notice; failure is fatal. * Civil practice – striking out notice of appeal – Rule 82 application. * Affidavit law – deponent swearing on behalf of others – validity where deponent speaks to personal knowledge or discloses information source. * Advocate’s mistaken belief and constitutional right to be heard do not excuse non-compliance with procedural time limits.
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12 December 1997 |
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A second review of this Court’s prior review is an abuse of process and was dismissed with costs.
Civil procedure – Review of Court of Appeal decisions – limits on reviewing a prior review – inherent jurisdiction to review limited to denial of hearing, fraud, want of jurisdiction or manifest error causing miscarriage of justice; dissenting opinions non‑adjudicative; successive reviews an abuse of process.
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12 December 1997 |
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High Court inspection under s.44(1)(a) does not authorize consolidation, staying proceedings or discharging accused; such acts were unlawful.
* Magistrates' Courts Act (s.44(1)(a)) – scope of High Court supervision – inspection of subordinate court records; limitations on powers to consolidate, stay proceedings or discharge accused.
* Judicial conduct – functus officio – when a judge is disqualified; appearance of bias and prejudice from further involvement after disqualification indicators.
* Legality of orders – acts beyond statutory supervisory power are unlawful and liable to be set aside.
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12 December 1997 |
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No lawful demand or proper procedure to trigger mortgagee’s power of sale; sale declared null, owner’s title restored.
Mortgage law – mortgagee’s power of sale – requirement of lawful demand and compliance with mortgage deed for service – section 19 Conveyancing and Law of Property Act 1881 – sale conducted secretly and in collusion – effect of caveat and requirements of Land Registration Ordinance – bona fide purchaser for value.
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12 December 1997 |
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Bank’s sale of mortgaged farm unlawful for lack of lawful demand; purchasers not bona fide; appeal dismissed.
Mortgage law – power of sale; clause in mortgage deed requiring lawful demand; service of notice; application of s.19 and s.20 Conveyancing & Law of Property Act 1881; Land Registration Ordinance requirements; caveat protection; bona fide purchaser; secret sale and collusion; remedies and damages for unlawful sale.
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12 December 1997 |
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Reported
Bank’s sale of mortgaged farm was unlawful: no proved demand, collusion in sale, transfers void; damages awarded.
Mortgages – power of sale – requirement of lawful demand under mortgage deed and service – exclusion of s.20 restrictions – statutory powers under Conveyancing and Law of Property Act (1881) – bona fide purchaser for value – effect of caveat and invalid transfers.
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12 December 1997 |
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Higher-court dismissal left unvacated bars magistrate jurisdiction; counsel properly instructed and service valid; appeal dismissed with costs.
Civil procedure — jurisdiction — effect of High Court order dismissing appeal: unvacated dismissal bars returning matter to lower court; proper remedy is appeal or review; service of process — service on company employee and process server's endorsement — absence of affidavit of employee weakens denial of service; counsel's authority — proof of instruction may be inferred from conduct, filings and appearances; impropriety of counsel later denying instructions.
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12 December 1997 |
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Court of Appeal quashed High Court's retrial order after finding pleas had been taken and ordered the appeal to be decided on merits.
Criminal procedure – pleas – misapprehension of record due to omitted page – duplicate file establishing pleas were taken; Revisional jurisdiction – Court of Appeal under s.4(3) Appellate Jurisdiction (Amendment) Act, 1993 – correction of High Court judgment in criminal matters; Retrial unnecessary where appellate record error caused nullification.
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11 December 1997 |
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Failure to give a sufficient excuse and to file a proper verified affidavit justified refusal to set aside an ex‑parte order.
Civil procedure — setting aside ex‑parte orders — sufficiency of excuse for non‑attendance; affidavits — requirement that deponent speaks to matters within personal knowledge and must be verified; election to file written application requires proper affidavit compliance; court’s discretion to refuse setting aside where explanation and affidavit are defective.
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8 December 1997 |
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A temporary injunction lapses after the statutory period (six months); non-compliance does not extend its validity.
Civil procedure – Interim injunctions – Duration and lapse – Order XXXVII Rule 4 as amended by GN No.508/1991 limiting interim injunctions to six months – non-compliance does not extend validity – Interested third parties' locus standi under Order XXXVII Rule 4 – Applications based on lapsed orders are incompetent.
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3 December 1997 |
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Reported
An application to stay execution without the decree or its terms is incompetent and dismissed with costs.
Civil procedure — Stay of execution pending appeal — Requirement to attach the decree or disclose its terms — Competence of application under rule 9(2) — Supplementary affidavits and curability of omissions.
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1 December 1997 |
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An application to stay execution must attach the decree or disclose its terms; omission renders the application incompetent.
Civil procedure – Stay of execution pending appeal – Requirement to attach the decree or disclose its terms – Competence of application – Court’s power under rule 9(2) to impose terms.
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1 December 1997 |
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Negligence of counsel does not ordinarily justify extending time to file a notice of appeal.
Civil procedure – Extension of time – Applicant must show good and sufficient reasons for delay – Negligence or inaction of counsel ordinarily not a sufficient ground – Prospects of success irrelevant at extension stage.
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1 December 1997 |
| November 1997 |
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Civil Practice and Procedure - Appeals- Cross-appeals- Application for extension of time within which to lodge - Rule 8 read with Rule q 87(2) of Tanzania Court of Appeal Rules - Those who come to court must not show unnecessary delay in doing so; they must show diligence |
18 November 1997 |
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Review of this Court’s own judgment is limited to manifest error or nullity; precedent conflicts require a full bench.
* Criminal law – review of Court of Appeal judgment – limited to manifest error on face of record or nullity (Valambhia). * Conflict of precedents – differing views on whether charge must allege 'armed robbery' to attract statutory minimum – to be resolved by full bench on appeal, not by review. * Sentencing – 30-year statutory minimum for robbery where evidence of use of a weapon.
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18 November 1997 |
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Revocation of right of occupancy must be proved; RM Court had jurisdiction; appeal dismissed with costs.
Land law — Right of Occupancy — revocation requires proper notice and documentary proof; Civil procedure — Resident Magistrates' Court jurisdiction to determine private declaratory disputes over registered land; Evidence — weight of witness demeanour and requirement of documentary proof for revocation.
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17 November 1997 |
Civil Practice and Procedure - Appeals - Application for extension of time to seek leave to appeal- Concurrent jurisdiction of High Court and Court of Appeal- Where application first made to and refused by High Court. |
6 November 1997 |
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Court stayed execution pending appeal due to significant legal issues over vehicle purchase and ownership despite no irreparable loss.
• Civil procedure – Stay of execution – Whether applicant demonstrates irreparable loss – Filing an appeal does not excuse non‑compliance with court orders – Discretionary stay under rule 3(2)(b) in interest of justice. • Property dispute – Motor vehicle sale – Issues as to who paid purchase price and who is entitled to retain vehicle or money.
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3 November 1997 |
| October 1997 |
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Applicant's unproven claim that court administration caused late service failed; extensions denied and notice of appeal struck out.
* Civil procedure – Appeals – Rule 77(1) Court of Appeal Rules: duty of intended appellant to serve copies of notice of appeal on persons directly affected – non-compliance and consequences; * Evidence – hearsay inadmissible to excuse procedural default where supporting affidavits are available but not produced; * Appeals – Rule 83: exclusion of time taken to obtain proceedings requires proof that request letters were served on respondents; * Failure to take essential steps justifies striking out notice of appeal under the Rules.
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28 October 1997 |
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Applicant’s failure to serve respondents and to institute the appeal in time warranted refusal of extensions and striking out of the notice.
Court of Appeal Rules — service of notice of appeal (rule 77(1)) — duty on intended appellant to effect service; extension of time applications — requirement to show sufficient cause; record of appeal — rule 83 exception for time to obtain proceedings and need to serve copies of request on respondents; inadmissibility of hearsay — necessity for supporting affidavits/documents; failure to take essential steps — striking out notice of appeal under rules 82 and 84; costs against unsuccessful applicant.
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28 October 1997 |
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Clerical error and subsequent delay do not constitute sufficient reason to extend time to serve a notice of appeal.
Civil procedure – Extension of time (Rule 8) – Application to serve notice of appeal and request for record; Clerical error by law clerk not sufficient reason; Inexcusable delay after realisation; Failure to seek stay of execution; Precedent: Transport Equipment Ltd v Devram; Costs awarded.
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27 October 1997 |
Civil Practice and Procedure - Appeals — Application for extension of C time to serve respondent with notice of appeal- Application made after 40 days refused. |
27 October 1997 |
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Advocate's error does not constitute sufficient cause to extend time under Rule 8; application dismissed with costs.
Extension of time; Rule 8; advocate’s negligence not sufficient cause; delay; dismissal with costs; referral to Tanganyika Law Society.
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27 October 1997 |
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Extension granted despite applicant’s procedural negligence because appeal raises important constitutional issues.
Extension of time – delay and sufficiency of reasons; Rule 83(1) proviso and requirement to copy request to respondent; exercise of discretion where appeal raises important constitutional questions; costs in the cause.
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24 October 1997 |
Elections - Election Offences and Irregularities - Bribery and Corrupt Practices |
13 October 1997 |
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Material contradictions in prosecution evidence and an unassessed alibi warranted quashing convictions and ordering release.
* Criminal law – housebreaking and stealing – evaluation of witness credibility; material contradictions in testimony. * Evidence – inconsistencies in dates, items and arrest timing undermining prosecution case. * Defence – alibi need not be proved; alibi that raises reasonable doubt must be given proper weight. * Appeal – convictions unsafe where trial court fails to properly assess contradictions and alibi.
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10 October 1997 |
Constitutional Law – Constitutional Remedies – Remedy of Reading In
Elections – National Elections Act – Interpretation of Section 114 of the National Elections Act
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2 October 1997 |
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Whether section 114(1) should be construed to include corrupt practice for certification to the Director of Elections.
Elections law – Certification to Director of Elections – Whether section 114(1) includes corrupt practice; purposive construction to remedy inadvertent legislative omission; use of legislative history (Objects and Reasons, Hansard) to ascertain intent; avoidance of absurdity and discriminatory effect; compatibility with constitutional guarantees; limits on judicial reading-in of words.
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2 October 1997 |
(An appeal from the decision of the High Court of Tanzania, Mwanza, Lugakingira J) Elections - Election petition - Corrupt practice - Section 114 of the Elections Act - Omission of Corrupt practice from s 114 inadvertently done - Necessary to read the words ‘corrupt or' into the section in order to remove absurdity and avoid discrimination. Statute - Interpretation of- Discovering intention of legislation - Objects and Reasons for bill Relevant to enquiry and recourse may be had thereto. Statute - Interpretation of- Reading words into section - Permissible to do so in appropriate circumstances |
2 October 1997 |
| September 1997 |
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Recount is not a general remedy in an election petition; scrutiny is available but requires strict statutory compliance.
Election law – Election petitions – Distinction between scrutiny and recount – Recount not available as a general post-declaration remedy – Scrutiny available but subject to statutory prerequisites (Section 112(d) and Rule 12) – English law not importable where Tanzanian statute applies – Procedural requirement to lodge list of objected votes at least six days before hearing.
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26 September 1997 |
(An appeal from the ruling of the High Court of Tanzania, Arusha, Nchalla J) Elections - Election petition - Scrutiny and recount- Scrutiny by way of recount not a legally competent relief. Elections - Election petition - Law to be applied - English law not applicable. Elections - Election petition - Scrutiny - Nature of relief |
26 September 1997 |
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Underlying debt, not a dishonoured cheque, constituted the cause of action; appeal dismissed for lack of triable issues.
* Civil procedure – summary procedure (Order XXXV Rule 2) – leave to defend – triable issues; * Contract/debt – dishonoured cheque as evidence of an attempt to pay, not the underlying cause of action; * Presentation of post‑dated cheque – timing of presentation; * Pre‑action demand and entitlement to sue after cheque dishonour.
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26 September 1997 |
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No triable issues where debtor admitted liability; dishonoured cheque was payment method — appeal dismissed with costs.
* Civil procedure – summary procedure (Order XXXV r.2) – application for leave to defend – triable issues. * Contract/debt – admitted indebtedness – dishonoured post-dated cheque as means of payment, not cause of action. * Presentation timing of cheque – evidential weight. * Costs and interest – awarded as claimed in plaint.
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26 September 1997 |
Civil Practice and Procedure - Judgment- Consent judgment- Order XV Rule I |
26 September 1997 |
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Consent judgment upheld only as to illegality of auction; relief from guarantee liability quashed and matter remitted.
Civil Procedure — Consent judgment and admissions — Court may record oral admissions at first hearing under Order X r.1 and Order XV r.1 even without written statement of defence — Admission must be clear and judgment cannot extend beyond what was conceded; relief not admitted is ultra petita and liable to be quashed.
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26 September 1997 |
(An appeal from the decision of the High Court of Zanzibar, Zanzibar, Dourado AgJ) Civil Practice and Procedure - Judgment - Review of- By judge suo motu - After becoming functus officio |
26 September 1997 |
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A judge who is functus officio cannot lawfully vary an earlier order without a review application and hearing of the parties.
Judicial review — functus officio — judge cannot suo motu vary earlier order without review application; procedural fairness — parties must be heard before varying orders; Immigration law — judicial direction to issue entry permits/special passes.
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26 September 1997 |
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Qualified privilege protected the appellant's report to the regulator; the employee had been heard, so dismissal was not wrongful.
Employment law – secondment and disciplinary authority – whether immediate host company or parent Board is disciplinary authority; Natural justice – right to be heard—what constitutes a hearing; Defamation – qualified privilege for communications to professional regulatory body; Remedy – setting aside judgment where procedural/substantive misdirection by trial court.
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9 September 1997 |
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Reported
Labour Law - Disciplinary authorites - Employees on secondment - Disciplinary authority in respect of seconded employee
Natural Justice - Right to be heard - Employee given right of hearing by institution to which he isseconded and not heard by the employer seconding the employee - Whether employee denied the right to be heard
Tort - Defamation - Defences - Qualified privilege — Communication of statement to a professional body of the employee at the request of such body - Whether defence of qualified privilege is sustainable |
9 September 1997 |
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A strike-out of an application for leave to appeal is declaratory and not executable; no stay granted absent irreparable harm or timely leave application.
* Civil procedure – Stay of execution – Whether an order striking out an application for leave to appeal is executable – Declaratory orders not capable of execution; * Appeal procedure – Leave to appeal – obligation to apply to the Court of Appeal within 14 days when leave refused by High Court and need to seek extension of time if delayed; * Interim relief – stay of execution requires risk of rendering appeal nugatory or irreparable harm.
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4 September 1997 |
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Failure to prove service of a Registrar‑request letter bars reliance on rule 83(1) and led to striking out the notice of appeal.
Civil procedure — appeals — rule 83(1) Court of Appeal Rules — 60‑day time limit for instituting appeals — exception where copy of application to Registrar requesting proceedings is served on the opposing party — burden of proving service — dispatch book entries and unidentified signatures insufficient evidence.
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2 September 1997 |
| August 1997 |
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A judge's refusal to adjourn and proceeding in the appellant's absence breached natural justice, rendering the proceedings void.
* Election petitions – adjournment – reasonable reliance on original hearing date; counsel change and parliamentary duties as grounds for adjournment. * Apprehension of bias – effect of proceeding after notice of intention to appeal. * Natural justice – hearing a party in absence and condemning unheard renders proceedings a nullity. * Remedy – de novo hearing before another judge; restoration of status quo ante.
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26 August 1997 |
Civil Practice and Procedure — Trial - Adjournment - When to be granted.
Civil Practice and Procedure - Court - Reasonable apprehension of bias. |
26 August 1997 |
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Where an appeal is struck out its notice disappears and a Court of Appeal judge lacks jurisdiction absent a prior High Court application under rule 44.
Court of Appeal procedure — striking out appeal extinguishes notice of appeal — rule 76 notice prerequisite — rule 44 requires first application to High Court for extension to give notice of appeal — single judge lacked jurisdiction — negligence of counsel not sufficient reason for extension of time.
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25 August 1997 |