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Citation
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Judgment date
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| December 1998 |
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Court refused review, finding affidavit evidence and permissible inference supported service and no miscarriage of justice.
* Civil procedure – Review of the Court’s own decision – inherent powers to review for manifest error on the face of the record; * Evidence – affidavit as sworn evidence and requirement that contradictions be by evidence on oath, not oral statement from counsel; * Evidence – inference of facts under section 122 Evidence Act (presumption of service by registered post where known address/PO Box used and office moved); * Review threshold – manifest error must cause real miscarriage of justice to warrant review.
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18 December 1998 |
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Absence of the mandatory memorandum of appeal and failure to serve/respondent render the appeal incompetent and struck out.
Civil procedure – Appeals – Requirement of memorandum of appeal (Rule 83(1)(a)) – Peremptory nature; Grounds of appeal not substituting for memorandum where document refers to "additional" grounds; Service requirements (Rule 90(1)) – failure to serve fatal; Record completeness – omission of pleadings (Rule 89(1)(c)) a serious irregularity; Appeal struck out.
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18 December 1998 |
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Reported
Court of Appeal Rules - Rules 83(1)(a), 89(1)(e) and 90(1) Effect of non-compliance with. |
18 December 1998 |
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A court may not use Rule 3 to save the appellant's out-of-time appeal; appeal struck out with costs.
* Civil procedure – Appeals – Time limits – Rule 83(1) requirement to institute appeal within sixty days; exception for time spent obtaining copies requires sending the copy request to the respondent per Rule 83(2).
* Court of Appeal Rules – Rule 3 does not permit circumventing mandatory time limits; Rule 8 is the proper mechanism to extend time for sufficient reason.
* Procedural finality – once appeal period expires the respondent is entitled to the fruits of the judgment; respondent need not have applied under Rule 82 to raise a time‑bar objection.
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17 December 1998 |
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Reported
An appeal lodged late without complying with Rule 83(2) cannot be saved under Rule 3 and is struck out with costs.
Court of Appeal — civil procedure; appeal time limits — Rule 83(1) exception for application for copies; mandatory compliance with Rule 83(2) (copy to respondent); Rule 3 (departure in interests of justice) cannot override mandatory time limits; Rule 8 provides remedy to extend time; finality of litigation and prejudice to respondent; appeal struck out with costs.
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17 December 1998 |
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Reported
Civil Practice and Procedure - Appeal Appeal to the Court of Appeal - Appeal lodged out of time - Whether the Court of Appeal may invoke the provision of rule 3 and proceed to entertain an appeal lodged out of time - Rules 3 and 83(1) and (2) of the Court of Appeal Rules 1979. |
17 December 1998 |
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Applicant’s unjustified failure to serve notice of appeal and conduct indicating abandonment justified dismissal of extension application.
Civil procedure – service of notice of appeal – compliance with Rule 77(2) – service must be at address in pleadings; attempted service on counsel at different town and via hotel receptionist invalid; applicant’s conduct showing abandonment relevant to extension of time.
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17 December 1998 |
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Applicant failed to show sufficient reason for not serving the notice of appeal; reference dismissed with costs.
* Civil Procedure – Extension of time – requirement to show sufficient reason for failure to serve notice of appeal on time.
* Court of Appeal Rules, Rule 77(2) – service of notice of appeal must be effected at address shown in pleadings; improper to serve through unrelated locations or at an advocate’s address in another town.
* Conduct post‑notice – subsequent statements abandoning appeal negate claimed honest belief in service and disfavor enlargement of time.
* Application for leave to file/serve notice of appeal out of time – failure to verify service and inconsistent conduct justify dismissal with costs.
|
17 December 1998 |
(From the conviction of the High Court of Tanzania at Mtwara, Moshi, J, dated 7 August 1996 in Economic Crimes No. 2 of 1996) Evidence - Evaluation of evidence on appeal -Appellate Courts re-evaluation of evidence of the trial Court - Principles to be applied. |
16 December 1998 |
(From Ruling of a Single Judge of the Court of Appeal of Tanzania at Dar es Salaam) Civil Practice and Procedure — Application of Rule 45(1) and (2) of the Court of Appeal Rules - Revisional jurisdiction of the Court of Appeal - Section 4 of the Appellate Jurisdiction (Amendment) Act Number 17 of 1993 - Objective behind the Act. II Court of Appeal Rules -Revisions — Revisional jurisdiction of the Court of Appeal - Section 4 of the Appellate Jurisdiction (Amendment) Act Number 17 of 1993 ~ Objective behind the Act. |
16 December 1998 |
(From the Judgment and Decree of the High Court of Tanzania at Bukoba, Lugakingira, J., dated 27 May 1998 in Miscellaneous Civil Cause No. 12 of 1995) Civil Practice and Procedure - Appeals - Notice of Appeal - Respondent alleges Notice of Appeal was not served in time - Rule 77(1) of the Court of Appeal Rules 1979 - Who carries the evidential burden to prove service of the copy of the Notice of Appeal. Civil Practice and Procedure - Limitation - Question of limitation and jurisdiction of the High Court not raised at the trial, and the court of first instance did |
16 December 1998 |
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Appeal competent despite High Court's failure to decide jurisdiction; proceedings quashed and remitted for jurisdictional determination.
Civil procedure – jurisdiction – preliminary objection as to forum – issue of jurisdiction must be decided first; Court of Appeal’s powers under s.4(2) Appellate Jurisdiction Act – discretion to remit rather than decide where lower court did not rule; competence of appeal – not defeated by lower court’s failure to decide a crucial issue; substantive point – whether discharge under s.91(1) Criminal Procedure Act supports contractual damages (left undecided).
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16 December 1998 |
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An appeal remains competent despite alleged trial judge error; unresolved jurisdictional questions must be decided by the High Court first.
* Appellate procedure – competence of appeal – appeal not incompetent merely because trial judge erred; competence depends on compliance with appellate rules. * Jurisdiction – court jurisdiction is sacrosanct and takes precedence; where unresolved, High Court should determine it. * Appellate Jurisdiction Act s.4(2) – Court of Appeal has power to exercise jurisdiction of lower court but should not 'step into the shoes' where the lower court has not decided the issue. * Criminal Procedure Act s.91(1) – question whether discharge can ground contractual damages raised but remitted for determination by High Court.
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16 December 1998 |
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Reported
Court allowed revision and amendment where notice omitted grounds but affidavit disclosed them; revisional powers invoked despite appealability.
Civil procedure — Motion practice — Mandatory requirement under Rule 45(1) and Form A to state grounds in notice of motion — omission ordinarily fatal but may be cured where grounds appear in accompanying affidavit and no prejudice — revisional jurisdiction under s.4(3) Appellate Jurisdiction Act — revision appropriate despite appealability where High Court order shows glaring error requiring prompt corrective action — leave to amend notice of motion.
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16 December 1998 |
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Appellate courts must respect procedural rules: service requirements proven on balance of probabilities; unraised jurisdictional issues cannot be appealed.
• Civil procedure – Appeals – Service of notice of appeal – Requirement under Rule 77(1) to serve copies within seven days – burden of proof on objector to show non‑service.
• Civil procedure – Appeals – Scope of memorandum of appeal – Rule 86(1) requires specification of points allegedly wrongly decided by the court below; issues not raised and decided below cannot be entertained on appeal.
• Appellate powers – Revision – Court reluctant to exercise revisional jurisdiction to entertain unraised issues where parties were represented and had opportunity at trial.
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16 December 1998 |
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Reported
Whether rule 11(1) requires payment of security for costs at filing and whether an unclear receipt invalidates the petition.
* Election law – Election Petitions – Rule 11(1) – security for costs – timing of payment; * Procedural law – commencement of hearing – distinction between applications to amend and hearing; * Evidence/procedure – omnibus receipts – itemisation not indispensable if amounts can be reasonably apportioned; * Irregularities – clerical errors in receipts curable and not fatal to petition.
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10 December 1998 |
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Whether security for costs must be paid at filing or only before fixing a hearing date, and if an omnibus receipt suffices.
* Election law – Rule 11(1) Elections (Election Petitions) Rules – security for costs – timing of payment (before fixing hearing date, not necessarily at filing).
* Procedure – meaning of 'hearing of the petition' – interlocutory applications do not commence hearing.
* Evidence – omnibus receipt not itemised may suffice where arithmetic and prescribed fees reasonable show payment of required sums.
* Irregularity – clerical defects in receipts curable; do not vitiate petition absent miscarriage of justice.
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10 December 1998 |
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A notice of motion that fails to state clear grounds as required by Form A is incompetent and may be struck out; appeal dismissed with costs.
* Civil procedure – Notice of motion – Form A requirement that the relief sought and grounds be stated – ambiguity renders an application incompetent and liable to be struck out.
* Court of Appeal supervisory power – authority to direct proper format and content of court processes.
* Competence of application – striking out permissible where notice fails to comply with required form and is confused.
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10 December 1998 |
(From the decision ofthe High Court ofTanzania at Dar es Salaam, Katiti, J., dated 2 December 1997 in Miscellaneous Civil Case No. 139 of 1996) Elections - Security for costs - Whetherfailure to explicitly itemize security for D costs in exchequer receipt renders an election petition incompetent - Rule 11 of the Elections (Election Petitions) Rules 1971. |
10 December 1998 |
(From the Judgment and Decree of the High Court ofTanzania at Tabora.Masanche, J., in Miscellaneous Civil Cause No. 3 of 1995) Civil Practice and Procedure - Court of Appeal Rules - Rights and duties of parties to appeal relating to service of documents — Failure to comply with the Rules and effect thereof — Rules 76, 77, 79, 82, 89(1), 90, 92(1) and 106(b) of the Court of Appeal Rules. ' Civil Practice and Procedure — Right to counsel - Right of a party to dismiss counsel — Duty judge on an application by a party to dismiss advocate. Appeal — Record ofAppeal — Record ofAppeal being incomplete - What steps a party may take. |
10 December 1998 |
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Reported
Applicant must serve respondents in references; stay granted where corporate identity for execution was in doubt.
Court of Appeal procedure – Reference applications – informal references after lapse of time – Rules 51(2), 52(1) and 57 – requirement to serve notice of motion, record and affidavits – practice note to fill lacuna; Stay of execution – doubt as to identity of corporate judgment debtor – stay ordered pending appeal.
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8 December 1998 |
Civil Practice and Procedure - Reference from single judge - Failure to serve Notice of Motion and Record of the Reference on respondent - Application of rules 57, 51, 5,2 and 45 of Court of Appeal Rules 1979. Civil Practice and Procedure - Stay of execution - Doubts as to true owner of property in proceedings for stay of execution - Order of stay granted. |
8 December 1998 |
Civil Practice and Procedure - Temporary and Interim orders of injunction — Whether time prescribed for validity thereof begins to run from the time of compliance with the order. |
3 December 1998 |
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Reported
A temporary injunction lapses after the statutory six‑month period regardless of compliance; applications concerning a lapsed order are incompetent.
Civil procedure – Interim injunctions – duration and expiry – Order XXXVII (as amended by GN No.508/1991) – six‑month statutory maximum – expiry by operation of law – compliance with order does not suspend running of time; Locus standi – interested third parties – application to vary/rescind interim orders; Competency – applications concerning lapsed injunctions should be struck out.
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3 December 1998 |
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Reported
Trial court erred in permitting ex‑parte hearing and proof of entire case by affidavit, requiring retrial.
Civil Procedure — Ex‑parte proceedings — Order 9 r.6(1) and Rule 7 — defendant’s later appearance — entitlement to be heard; Evidence — Order 19 — affidavit evidence — prohibition on proving entire case by affidavit where witnesses can be produced for cross‑examination; Procedural fairness and delay — quashing proceedings and ordering retrial.
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3 December 1998 |
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Trial judge’s failure to follow Civil Procedure Code (ex parte and affidavit rules) warranted quashing of proceedings and retrial.
* Civil procedure – Ex parte hearing – Order 9 r.6: requirements when plaintiff appears and defendant does not. * Civil procedure – Adjournment to file affidavits – operation of Rule 7 and defendant’s right to assign good cause. * Evidence – Use of affidavits under Order 19 r.1 – limits on proving entire case by affidavit and right to cross-examination. * Relief – Quashing of proceedings and ordering retrial for procedural non-compliance.
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3 December 1998 |
(From the decision of the High Court of Tanzania at Dar es Salaam, Mwaikasu, J., dated 10 July 1995, in Civil Case No. 307 of 1998) Civil Practice and Procedure - Ex parte hearing — Effect of postponing hearing p ex parte - Whether provision to postpone hearing may be used to allow absent plaintiff to proceed ex parte - Order 9, rule 6(1) of the Civil Procedure Code 1966. Civil Practice and Procedure — Whether plaintiff may prove entire case by affidavit - Order 9, rule 6 and Order 19, rule 1 of the Civil Procedure Code 1966. |
3 December 1998 |
Civil Practice and Procedure — Issues - Issues of law — and Issues of fact - Where issues of law may dispose of the case or part of it — Court must determine issues of law first - Order 14, rule 2 of the Civil Procedure A Code 1966. Company law - Foreign company- Certificate of compliance by foreign company — Whether a foreign company not incorporated in its own country can take out a Certificate of compliance in Tanzania - Section 321 of the Companies Ordinance Chapter 212. Civil practice and procedure - Companies standing in legal proceedings - Whether a foreign company not incorporated in its home country can institute legal proceedings. |
3 December 1998 |
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Reported
A company not validly incorporated abroad lacks capacity to obtain local compliance certification or to sue.
Company law – Foreign incorporation – A company not validly incorporated in its home jurisdiction has no legal personality and cannot obtain a valid local Certificate of Compliance or sue; Civil procedure – Preliminary issues of law (O.14 r.2) must be tried first where they may dispose of the case; Registrar’s retrospective registration changes and consequences; nullity of subsequent proceedings when plaintiff lacks capacity.
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3 December 1998 |
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Ex parte adjournment and allowance to prove whole case by affidavit violated Civil Procedure Code; retrial ordered.
Civil procedure — Ex parte proceedings (Order 9 r.6) — Adjournment and effect under Rule 7 — Proof by affidavit (Order 19 r.1) — Limits on using affidavits to prove entire case — Procedural irregularity and retrial.
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3 December 1998 |
(Appeal from the decision and decree ofthe High Court ofTanzania at Dar es Salaam, Masanche, J., dated 15 May 1990 in Civil Appeal No. 22 of 1987) D Land law - Customary land law - Whether a holder ofland under customary law can be reduced into a squatter. Land law - Customary land law — Title of a holder of a right of occupancy under customary law is recognized by the law of the land, i.e., the Land E Ordinance. Land law - Customary land law -In what circumstances the title ofa holder of right of occupancy under customary law can be taken away. Land law - Customary land law - Whether customary law on land and tenure r applies in urban areas. Land law - Customary land law -No one can hold land under customary law in a planned area - Customary law cannot apply in urban areas. G Land law - Customary land law - Title to urban land is dependent on granted rights ofoccupancy - Customary law does not operate in urban areas. Land law - Declaration of urban land as a planning area — Whether such declaration divests the original owners of their customary titles on the ** land. |
3 December 1998 |
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Reported
Court quashed manslaughter conviction as death appeared accidental and set aside seven-year sentence.
Criminal law – manslaughter – conviction on plea – accidental death – appellate revisional jurisdiction – quashing conviction and setting aside sentence – sentence excessive. |
3 December 1998 |
(From the High Court ofTanzania at Dar es Salaam, Bubeshi, J., dated 23 December1996) Powers -Inherentpowers - Court looking at records or receipt book to determine correct date - Whether proper. |
2 December 1998 |
| November 1998 |
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Reported
Failure to serve appeal documents and to obtain leave to join a successor renders the appeal incompetent and struck out.
Civil procedure — Appeal — Mandatory service of memorandum and record of appeal — Rule 79/90 — Failure to serve respondent renders appeal incompetent; joinder of successor party requires leave under Rule 85(2); rectification not permitted once mandatory rules breached.
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23 November 1998 |
(From the Judgment ofthe High Court ofTanzania at Dar es Salaam, Kyando, J, dated 24April 1994 in Civil Case No. 177 of 1986) D Civil Practice and Procedure - Appeal - Appeal to the Court ofAppeal - Respondent not served with copies of the Memorandum and Record of Appeal — Whether appeal is competent - Rule 80 ofthe Court ofAppeal Rules 1979. Civil Practice and Procedure - Respondent as successor to the original respondent - Whether he could be made a party to the proceedings without the leave ofthe court - Rule 85(2) of the Court ofAppeal Rules 1979. |
23 November 1998 |
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Reported
Criminal Practice and Procedure - Appeals - Appeals against Interlocutory Orders - Whether appellable by the Director of Public Prosecutions - Appellate Jurisdiction Act 1979, s 6(2).
Criminal Practice and Procedure - Incomplete trial within a trial Whether Court can make a ruling on it.
Natural Justice - The right to be head in criminal trials - The right of the prosecution to be heard. |
8 November 1998 |
| October 1998 |
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Failure to obtain psychiatric report did not require retrial where the applicant appeared fit and guilt was proved.
Criminal law – Insanity – distinction between insanity as defence and as bar to trial (fitness to stand trial) – s.216 Criminal Procedure Act – procedure when insanity raised – failure to obtain/consider psychiatric report – s.388 retrial for miscarriage of justice – appeal dismissed where accused showed fitness and guilt proved beyond reasonable doubt.
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23 October 1998 |
(From the decision of the High Court ofTanzania at Morogoro, Kyando, J., in Criminal Sessions Case No. 55 of 1988, dated 29 July 1994) Criminal Law - Murder - Defence of insanity - When defence may be raised or pleaded. Criminal Practice and Procedure - Insanity as a bar to a trial - Procedure to be followed bythe trial court. |
23 October 1998 |
| September 1998 |
|
(From the decision of the High Court of Tanzania at Dar es Salaam, Mackanja, J., dated 26 June 1998 in Dar es Salaam) Civil Practice and Procedure - Execution of decree - Stay of execution pending appeal - Application for stay of execution pending an appeal that requires Leave to Appeal - Whether stay of execution may be granted where no Leave to Appeal has been sought and granted. |
30 September 1998 |
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Reported
A stay application is incompetent where leave to appeal from a subordinate court is required but not obtained.
Civil procedure – Stay of execution – Competency of stay application where matter originated in a subordinate court – Requirement for leave to appeal – Preliminary objection upheld and application struck out – Costs follow event.
|
30 September 1998 |
Limitation of Time — Consequences thereof— High Court finds that an application filed was time-barred - Whether such application may be dismissed or struck out - Section 3(1) of the Law of Limitation Act 1971. Res Judicata -Issue decided in previous case was whether the first respondent had been served with Notice of Appeal — Issue in subsequent case is whether the applicant honestly believed he had served Notice of Appeal on the first respondent- Whether the matter in the subsequent case is res judicata.Extension of Time - Grounds for extension of time — Applicant seeking extension of time to file Notice of Appeal after previous notice is struck out for failure to serve it on the respondent - Whether an honest but mistaken belief that he had served that previous notice is a sufficient ground to grant extension. |
29 September 1998 |
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Applicants’ uncorroborated claims of registry delay and lack of funds did not justify extension of time; reference dismissed with costs.
Civil procedure – extension of time and leave to appeal – requirement for evidential support for alleged delay in supply of court documents – corroboration by registry affidavit – adequacy of applicant’s affidavit about inability to raise funds – duty of advocate to act expeditiously; delay attributable to applicant or counsel.
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18 September 1998 |
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18 September 1998 |
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Applicants failed to prove delay or inability to engage counsel; extension of time and leave to appeal refused; reference dismissed with costs.
Civil procedure — extension of time to apply for leave to appeal — burden of proof for delay — requirement of corroborative affidavits (including registry clerk) — adequacy of applicant’s affidavit re inability to hire counsel — conduct of counsel and inordinate delay.
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18 September 1998 |
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Failure to serve a copy of an application for proceedings disqualifies an applicant from time protection under rule 83(1).
Civil procedure – appeals – Court of Appeal Rules, rule 83(1) and (2) – requirement to copy application for proceedings to the other party to secure exclusion of time to obtain record – duty on applicant to serve copy (not Registrar/Registry) – ignorance of law no excuse.
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18 September 1998 |
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Failure to copy the respondent with the application for proceedings forfeits rule 83(1) protection; appeal struck out.
* Civil procedure – Court of Appeal Rules, rule 83(1) and (2) – exclusion of time taken to obtain record of proceedings – requirement that application for proceedings be copied to the other party – duty on applicant to send copy to respondent. * Procedural compliance – applicant’s failure to copy respondent forfeits protection; ignorance of law is no excuse. * Striking out – notice of appeal properly struck out where appeal not instituted within 60 days.
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18 September 1998 |
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Not serving the respondent with a copy of the application prevents exclusion of delay under rule 83(1).
Civil procedure — Court of Appeal Rules, rule 83(1) and (2) — exclusion of time to obtain record of proceedings — requirement to serve a copy of application for proceedings on the other party — registry not a substitute for service — ignorance of law no excuse.
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18 September 1998 |
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Failure to serve notice and memorandum of appeal is fatal; court declined to use discretion to save the appeal.
Court of Appeal — service of appeal documents — mandatory duty under Rules 77(1) and 90(1) — failure to serve copies fatal to appeal — discretionary relief under Rule 3(2)(b) not granted where documents were prepared/signed by counsel — appeal struck out and costs awarded.
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18 September 1998 |
| August 1998 |
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(From the Ruling of a single judge of the Court of Appeal ofTanzania at Dar es Salaam, Ramadhani, J.A., dated 23 May 1997, in Civil Application No. 9 of 1997) Court ofAppeal Rules - Limitation of Time to lodge an appeal - Computation of time in which an appeal may be lodged - Point at which time starts to run — Rule 83(1) ofthe Court ofAppeal Rules 1979. Certificate - Certificate issued by the Registrar under rule 83(1) of the Court of Appeal Rules 1979 — Presumption that certificate is right and regular - Section 122 of the Evidence Act 1967. |
18 August 1998 |
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Prospects of success alone do not justify a stay; special circumstances are required and were not shown by the applicant.
* Civil procedure – Stay of execution pending appeal – applicant must show more than prospects of success; special or exceptional circumstances required – mere business hardship or post-judgment robbery insufficient. * Judgment debtor’s ability to pay and creditor’s assets relevant to discretion to stay execution.
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17 August 1998 |