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Citation
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Judgment date
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| December 1999 |
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A magistrate without jurisdiction under the Economic Crimes Act cannot use s.129 CPC to dismiss or decide the validity of charges under that Act.
* Criminal procedure – Economic and Organized Crime Control Act – jurisdiction of district magistrates – limits on invoking s.129 Criminal Procedure Act where court lacks jurisdiction under special Act. * Statutory construction – retrospective operation of offence provisions – whether offence created by Act applies to conduct before commencement. * Effect of prior acquittal – paragraph 11(3) of First Schedule – whether earlier acquittal bars subsequent prosecution.
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22 December 1999 |
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Appeal struck out due to time-barred application for leave, lacking legal basis for document attachment delay.
Civil Procedure - Time limits for filing appeals - necessity of attaching court decision to appeal application - concurrent jurisdiction in granting leave to appeal. |
13 December 1999 |
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Reported
The court declared the appellants' trial null and void and ordered a retrial before another judge.
Criminal appeal — appellate power to declare trial null and void — order for retrial before another judge — remedial jurisdiction of appellate court.
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13 December 1999 |
(From the Judgment ofthe High Court ofZanzibar at Vuga, Dourado, J., in Sessions Case No. 2 of 1998 dated 23 March 1999) Criminal Practice andProcedure - Transfer ofCases - Whether the ChiefJustice can transfer a partly heard case from one judge to another - Section 13 ofthe High Court Act Number 2 of 1985. Criminal Practice and Procedure - Bias - Allegations ofbias against a Judge - Such allegations not to be taken lightly |
13 December 1999 |
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Court refused to strike out an appeal for an advocate's procedural failings and dismissed the application with costs.
Civil procedure – application to strike out notice of appeal – competence of appeal – procedural defaults by advocate – withdrawal of counsel – fairness to litigant – court grants time for fresh representation; strike-out dismissed with costs.
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10 December 1999 |
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Application for stay struck out where no notice of appeal was filed against the ruling sought to be stayed.
Civil procedure — Stay of execution — Court of Appeal may grant stay only where a proper notice of appeal has been lodged (Rule 9(2)(b)) — Notice of appeal against substantive judgment does not validate an application to stay an intervening ruling refusing a stay — Application incompetent and struck out.
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3 December 1999 |
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Applicant’s motion to strike respondents’ appeal granted where record was served out of time without leave; appeal struck out and costs awarded.
* Civil procedure – appeal procedure – service of record of appeal – Rule 90 requirement to serve copy within seven days – failure to obtain leave to serve out of time – Rule 82 sanction of striking out. * Adequacy of explanation for late service – need for corroboration and for seeking extension of time. * Court will not extend time in absence of application; public importance irrelevant without such an application. * Costs awarded to successful applicant and to respondent affected by abandoned prayer.
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2 December 1999 |
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Placing a public corporation under receivership does not automatically vest its assets in the PSRC; stay of execution was refused for lack of requisite grounds.
* Public corporations – receivership – effect of declaration as specified public corporation under s.39(1) – does not extinguish legal personality or automatic transfer of assets to PSRC. * Receivership/PSRC – powers of official receiver – PSRC may exercise powers of a receiver under Bankruptcy Ordinance but ownership of property is not automatically displaced. * Civil procedure – stay of execution – requirement to show strong prospects of success, irreparable harm, and adequate security; failure to satisfy test leads to dismissal.
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1 December 1999 |
| November 1999 |
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(From the decision ofthe High Court of Tanzania at Dar es Salaam, Mwaikasu, J., dated 18 May 1995, in Civil Case No. 128 of 1993) Civil Practice and Procedure - Civil Procedure Code 1966 - Rule 6(l)(a) of jj Order IX —Whether the modification in . Number 376 of 1968 applies where the Attorney General is one of several defendants. Civil Practice and Procedure — Rule 6(1) of Order IX of Civil Procedure Code 1966 — Whether the words "when the suit is called for hearing" refer to an adjourned date of hearing. Civil Practice and Procedure — Order IX, rule 6 ofthe Civil Procedure Code 1966 - Whether it applies only when the suit is called for hearing on the first occasion Order XVII, rule 2.Civil Practice and Procedure - Order for compensation - Whether correct to use the dollar to calculate judicial compensation for the purpose of- Setting devaluation.Judgment - Basis of judgment — Whether extraneous information may be acted upon. |
26 November 1999 |
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An extension-of-time application must first be made to the High Court; failure to do so warrants striking out with costs.
Appellate procedure — extension of time to file notice of appeal — requirement to apply first to the High Court (s.11(1) Appellate Jurisdiction Act; Rules 8 and 44 Court of Appeal Rules) — failure to comply — application struck out with costs.
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22 November 1999 |
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Unexplained delay and an inadequate affidavit justified refusal to extend time for applying for leave to appeal.
Court of Appeal procedure — extension of time under Rule 8 — compliance with Rule 13(b) — sufficiency of affidavit explaining delay — delivery of court decision to party versus counsel — requirement for leave to appeal and stay pending appeal.
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19 November 1999 |
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A stay of execution cannot be granted once the decree has been executed by seizure/attachment of the respondent’s property.
* Civil procedure – Stay of execution – An order for stay presupposes that a decree has not been executed – Where execution has proceeded to attachment/seizure of property a stay will be inappropriate. * Execution – Attachment of movable property – Proper execution and warrant of attachment precludes later grant of stay once seizure effected.
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12 November 1999 |
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Stay of execution pending appeal granted because High Court ordered reconsideration, not immediate repossession, so applicants not in default.
Administrative law – prerogative orders (certiorari and mandamus) – self‑executing nature – execution against government subject to special procedures; stay of execution pending appeal – whether applicant in default of order – direction to revisit administrative decision and fair conduct required.
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12 November 1999 |
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A notice of motion lacking citation of the enabling provision renders the applicant's application incompetent and struck out.
Civil procedure — Notice of motion — Rule 45/Form A — requirement to cite enabling provision — non‑citation renders application incompetent; preliminary objections; stay of execution; applicant's conduct (tenant vacated and premises re-let) affects merits.
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10 November 1999 |
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Leave to appeal and stay granted on important company law issues; affidavit objections largely dismissed.
* Company law — whether High Court orders on meeting chairmanship contravene s.112(3) Companies Ordinance; * Company law — liability of non‑directors for costs and fines without proof of knowledge; * Civil procedure — striking out argumentative affidavit paragraphs and court-ordered deletion; * Civil procedure — sufficiency of single applicant’s affidavit for multiple applicants represented by one advocate; * Appeal — grant of leave where matters raise important questions; * Stay of execution — granted to prevent appeal becoming nugatory.
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10 November 1999 |
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Court struck out respondents' March 1998 notices of appeal as out of time, holding the High Court ruling was pronounced earlier.
* Civil procedure – appeal time‑limits – when judgment is pronounced; effect of re‑reading a prior ruling on appeal time.
* Affidavit practice – facts must be deponed; argumentative passages and prayers not necessarily fatal if severable.
* Oaths and affirmations – non‑Christian witnesses may be permitted to affirm but may also elect to swear an oath.
* Order XX R.1/R.2 – judgment pronouncement requirements and consequences for filing timely notices of appeal.
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2 November 1999 |
| October 1999 |
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Civil Practice and Procedure - Stay of Execution — Application to the Court of Appeal for stay of execution of a High Court decision where no Notice to Appeal against it is lodged - Whether the application is competent - rule 9(2)(b) of the Tanzania Court of Appeal Rules 1979. |
29 October 1999 |
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Repeated attempts to obtain costs and interest denied; extension refused as time‑barred and abusive.
Civil procedure – costs – silence in judgment does not imply an award of costs; costs must be claimed and expressly granted. Extension of time – refusal where delay is self‑caused and applications amount to abuse of process. Appellate jurisdiction – correction/variation inappropriate where issue (interest on decretal sum) is a separate matter for the trial court.
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29 October 1999 |
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Reported
Application for extension to vary judgment to award costs and additional interest dismissed as time‑barred and an abuse of process.
Civil procedure — correction/variation of judgment — extension of time to apply for correction — costs — silence in judgment does not imply costs awarded — abuse of court process; Appellate Jurisdiction Act s.2(3)&(5); decretal interest — separate remedy to be pursued in trial court.
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29 October 1999 |
Civil Practice and Procedure — Extension of time — Application for extension of time to apply for correction or variation of Judgment — Application filed more than a year after the applicant is made aware of the need for it - The delay is inordinate. Civil Practice and Procedure - Judgment - Correction of errors in a judgment jj - High Court omits to award interest on a decretal amount — Whether that is an error which the Court of Appeal may correct under section 2(3) of the Appellate Jurisdiction Act |
29 October 1999 |
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Ex parte interim injunction set aside for failure to justify dispensing with mandatory notice and for being unduly wide.
Civil procedure — Injunctions — Order 37 r.4 (Civil Procedure Code) — Notice of application mandatory except where giving notice would cause undue delay — Burden on applicant to justify dispensing with notice — Ex parte injunction improperly granted where affidavit fails to show reasons — Overbroad injunctions may unlawfully affect civil and political rights.
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11 October 1999 |
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Reported
An ex-parte interim injunction granted without mandatory notice under Order 37 r.4 and without proving good cause is invalid.
Civil procedure — Injunctions — Order 37 r.4 (Civil Procedure Code) — Mandatory notice requirement before granting injunction — Exception requires applicant to prove good cause to dispense with notice — Ex-parte injunction improperly granted where no application or grounds to dispense with notice — Injunction must be appropriately confined and not unduly vague to avoid impinging constitutional/civil rights.
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11 October 1999 |
(From the decision ofthe High Court of Tanzania, Bubeshi, J., dated 14 May 1999) Civil Practice and Procedure - Interim injunction - When it can be granted without serving notice on the respondent - Order 37, rule 4 ofthe Civil Procedure Code 1966. Civil Practice and Procedure — Interim injunction — Reasons to be disclosed for requesting the court to dispense with service of notice — Order 37 rule 4 of the Civil Procedure Code 1966. |
11 October 1999 |
Application for stay of execution ofthe decision ofthe High Court of Tanzania, at Songea, Mwipopo, J., dated 26 June 1999, in Misc. Civil Application No. of 1999) Civil Practice and Procedure - Stay of Execution - Application for stay of execution — Stay of execution sought where there is no court order granting to the respondent any right to execute or to do anything affecting the rights or interests ofthe applicant - Whether the application is competent. |
8 October 1999 |
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Reported
A stay will not lie where the impugned High Court order creates no enforceable right or action to be stayed.
Administrative law; service of appeal documents on a senior officer constitutes valid service; stay of execution—must relate to an order granting rights or directing action; an order that only sets aside another court's injunction may not be the subject of a stay.
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8 October 1999 |
| September 1999 |
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The appellant did not abandon occupied land; village's reallocation was irregular and was quashed.
* Land law — Occupation and abandonment — Notice to village leadership and leaving land under care does not amount to abandonment.
* Customary/village allocation — Reallocation of land already occupied and cultivated requires strong justification; unauthorized encroachment by village authorities is irregular.
* Civil procedure — Suit filed in wrong name but clearly for village’s benefit is curable under s.37(2) Magistrate’s Court Act 1984.
* Appellate review — District court erred in subdividing a single occupied parcel without evidential basis.
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24 September 1999 |
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A primary tortfeasor cannot be struck out and substituted with a corporate office-holder where his joinder is necessary.
Civil procedure — Order 1 Rule 10(2) CPC — striking out or substituting parties; Order 1 Rule 3 — joinder of defendants for same act/transaction; tort — primary tortfeasor liability vs vicarious liability; corporate office-holder not a separate legal person — not a proper substitute.
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10 September 1999 |
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Wakf held not absolute; respondent awarded two-thirds and applicant one-third of house, effected by room allocation, costs each party.
* Property law – wakf – whether an intended wakf was absolute or subject to inheritance; * Succession/inheritance – apportionment of a deceased co-owner’s share between heirs; * Practical partition – effecting fractional shares by allotment of rooms and outbuildings; * Court of Appeal clarification under procedural rule on implementation of judgment.
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7 September 1999 |
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Reported
High Court’s finding of timely filing of defence set aside after primary filing receipt was found to be forged; matter remitted for default-order.
Civil procedure — Default judgment — Filing of written statement of defence — Alleged filing supported by exchequer receipt found forged — Court condemnation of counsel misconduct — Ruling set aside and matter remitted to High Court to proceed under Order 8 Rule (Civil Procedure Code).
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7 September 1999 |
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Failure to file a defence, a forged filing receipt and counsel’s misconduct warranted setting aside the High Court ruling and remitting the matter.
Civil procedure – Default judgment – Failure to file written statement of defence – Forged exchequer receipt purporting to show filing – Counsel misconduct and misleading the court – High Court’s finding set aside – Matter remitted for Order 8 directions.
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7 September 1999 |
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Reported
Registry — Misconduct — Exchequer receipt issuedfraudulentlly -Exchequer receipt with a forged date.
Advocates — Misconduct committed on instructions of advocate -Advocate’s misconduct- Advocate’s deceit calculated to mislead court to make a wrong finding of fact is an attempt to pervert the course of justice. |
7 September 1999 |
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Reported
Tribalist campaign statements by a candidate or agents, proved with knowledge and consent, void the election under s.108(2)(a).
Elections Act s.108(2)(a) – tribalist statements by candidate or agents with knowledge/consent – proof required; burden of proof in election petitions – grave allegations require strict and corroborated proof; appellate review of credibility – when to disturb trial findings; distinction between s.108(2)(a) (qualitative nullification) and s.108(2)(b) (effect on result).
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6 September 1999 |
| August 1999 |
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Primary Courts lack jurisdiction over land held on right of occupancy; proceedings are nullities without High Court leave.
Jurisdiction — Primary Courts — Limits on jurisdiction over land registered under the Land Registration Ordinance or held on Government lease/right of occupancy — Magistrates' Courts Act ss.18 & 63 — Proceedings in wrong forum nullity absent High Court leave.
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31 August 1999 |
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Application to review Court of Appeal judgment refused: no manifest error or such prejudice from denial of counsel change to justify retrial.
Inherent jurisdiction — review of Court of Appeal judgment — limited grounds for review (manifest error apparent on face of record; fraud; party condemned unheard) — allegation of deprivation of counsel of choice in trial court — not every adverse remark or prejudice finding requires nullification or retrial.
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27 August 1999 |
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Application for stay pending appeal dismissed: no prospects of success and no good cause shown for delay, with costs.
Civil procedure – Stay of execution pending appeal – Requirement that intended appeal have prospects of success – Delay in seeking leave to appeal out of time – Good cause for delay – Irreparable harm requirement for stay.
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20 August 1999 |
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Whether a verbal death threat amounts to provocation or lawful self-defence—court held it did not; appeal dismissed.
* Criminal law – Murder – Provocation – Whether verbal threats by the deceased can found provocation depriving accused of self-control. * Criminal law – Self-defence – Pre-emptive killing in response to a threat does not constitute lawful self-defence. * Evidence – Extra-judicial/confessional statements – admissibility and weight in supporting conviction.
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19 August 1999 |
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Reported
Preliminary objection to appeal for defective service and alleged missing petition dismissed; appeal ordered to proceed to hearing.
* Civil procedure – Appeals – Service of notice, memorandum and record of appeal – Validity of service on an advocate at an address provided for service (Rule 77) – Non-compliance with Rule 90 not necessarily fatal where record contains documents required by Rule 89.
* Civil procedure – Records of appeal – Alleged omission of original petition – distinction between missing documents listed in Rule 89 and other defects.
* Advocacy – Right of a client to dismiss and engage counsel – client’s unconditional right and prejudice if denied.
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13 August 1999 |
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Reported
Elections - Votes ofregistered voters who did not vote - Pro-rata apportionment of
Elections — Free andfair elections — Chaos during elections -Whether elections can be said to be free and Fair.
Elections - Nullification of- Racist statements - Whether sufficient to nullify elections - Section 108(2)(a) Elections Act 1985. |
13 August 1999 |
| July 1999 |
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Reported
Civil Practice and Procedure - Execution - Stay of execution of High Court order — Power ofCourt ofAppeal — Rule 9(2)(b) of the Court of Appeal Rules 1979
Civil Practice and Procedure - Jurisdiction — Jurisdiction of the court- Whether parties may, by agreement, conferjurisdiction on a court.
Civil Practice and Procedure - Discretion - Exercise of discretion-Principles underlying exercise ofsuch discretion - Order XLII, rule 2, sections 68(e) and 95 ofthe Civil Procedure Code 1966 and section 2(2) of the Judicature and Application of Laws Ordinance.
Civil Practice and Procedure - Orders - Preservatory measures -Whether may be made in the absence of a suit.
Civil Practice and Procedure - Balance ofconvenience - Guiding principles.
Civil Practice and Procedure - Preservatory measures - Whether judgment for monetary payments is a preservatory measure. |
8 July 1999 |
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Reported
Court granted stay pending appeal, holding the High Court prima facie lacked jurisdiction to order interim monetary payments.
• Civil procedure — jurisdiction to grant interim monetary relief absent a suit — Order XLII r.1-2, s.68(e), s.95 Civil Procedure Code examined.
• Judicature and Application of Laws Ordinance s.2(2) — scope of applying common law where Code is silent; parties cannot confer jurisdiction.
• Stay of execution — factors: prima facie prospects of success, risk of irreparable injury, balance of convenience.
• Arbitration — interaction between arbitration agreement and concurrent court reliefs.
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8 July 1999 |
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Reported
Civil practice and procedure — Natural justice — Leave co defendant not given opportunity to cross examine witnesses and to defend himself against the suit - A denial of justice.
Civil practice andprocedure — Appeals - Leave to appeal to the Court ofAppeal - Leave granted by the High Court outside prescribed period - Rule 43 (a) of the Tanzania Court of Appeal Rules 1979.
Court ofAppeal — Revisional powers - Serious irregularities in the three courts below — Section 4(3) ofthe Appellate Jurisdiction Act 1979 as amended by Appellate Jurisdiction (Amendment) Act 1993. |
6 July 1999 |
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Reported
Criminal Practice and Procedure — Conviction - Conviction on a plea of guilty - Appellant convicted on own plea of guilty of manslaughter while the facts narrated revealed accidental killing - Whether the appellant was properly convicted.
Criminal Practice and Procedure - Sentencing - Sentence for manslaughter. Appellant sentenced to seven years ’ imprisonment -Whether the sentence is proper. |
5 July 1999 |
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Applicant’s delay in seeking leave to appeal was inexcusable; time runs from notification of the ruling, not its signing.
Appeals — leave to appeal out of time — computation of time from date ruling brought to parties' attention — requirement to annex High Court order — rule 46(3) applies to Court of Appeal applications only — misapprehension of law not sufficient cause for delay.
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1 July 1999 |
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Reported
Waiver of service granted where deceased respondent had no appointed representative and nobody to be served.
Court of Appeal — Service of record and memorandum of appeal — Deceased respondent without appointed administrator — Whether to enlarge time to serve or waive service — Rule 77(1) and rule 3(2) — No locus to accept service where no party appointed.
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1 July 1999 |
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Court waives service of appeal records where deceased respondent has no appointed legal representative and took no part below.
* Civil procedure – service of record of appeal – deceased respondent with no appointed administrator – extension of time cannot be granted where no one to serve. * Civil procedure – waiver of service – Court may waive service where no person on respondent’s side took part in lower court proceedings. * Representation – appearance by advocate without an appointed client does not substitute for legally appointed representative.
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1 July 1999 |
| June 1999 |
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Defamatory imputations of criminality at campaign rallies can vitiate an election; corrupt‑practice findings require proof of the triggering event.
Election law — proof of alleged campaign meetings and linked corrupt practices; defamation in political campaigns — imputations of criminal conduct, wide publication and effect on free and fair elections; Rule 6 Election (Election Petition) Rules — court's power to consider unpleaded or time‑barred matters where evidence is before the court; evidentiary contradictions and standard of proof in election petitions.
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28 June 1999 |
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Reported
Defamatory and tribal campaigning upheld as grounds to void election; corrupt-practice finding tied to an unproven meeting set aside.
Elections — Election petitions — Proof and credibility of campaign events; corrupt practices — dependency on proven facts; defamation in political campaigns — imputations of criminality and presumption of electoral prejudice; wide publication; Rule 6 Election Rules — court’s power to deal with unpleaded matters and tribalism in public interest.
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28 June 1999 |
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Lack of statutory consent under land regulations does not make a sale void but renders it unenforceable to the extent prejudicial to the paramount landlord.
Land law – disposition of rights of occupancy – regulation 3 (Land Regulations 1948/1960) – meaning of "shall not be operative" – effect of lack of statutory consent – Law of Contract Ordinance 1960 alters previous authorities – valid but inoperative/unenforceable contracts to the extent prejudicial to paramount landlord – remedies where party has performed; refusal of consent renders contract unenforceable.
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18 June 1999 |
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Reported
Whether lack of statutory consent for disposition of a right of occupancy renders the contract void or merely unenforceable.
Land law – Dispositions of rights of occupancy – Regulation 3 (1948/1960) – Meaning of "shall not be operative" – Contracts valid but unenforceable to protect paramount landlord – Sanctity of contract preserved by Law of Contract Ordinance s.2(2) – NITIN overruled to that extent.
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18 June 1999 |
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Reported
Court of Appeal - Full bench — An ordinary Court referring a matter of law for decision of the same Court sitting as full bench of five justices - Basis therefore.
Contract - Sanctity of contract - English principle of sanctity of contract not excluded in the Law of Contract Ordinance Chapter 433 - Part of the law of contract of this country.
Contract law - Interpretation of expression “shall not be operative” under the Land Regulations 1948 and 1960 - Section 2(2) of the Law of Contract Ordinance Chapter 433.
Land law - Land Regulations, 1948 and 1960 — Interpretation of expression “shall not be operative" under the Land Regulations 1948 and 1960 — Section 2(2) of the Law of Contract Ordinance Chapter 433.
Statute - Interpretation of statute - Meaning of the expression “shall not be operative” - Land Regulations 1948 and 1968 and section 2(2) of the Law of Contract Ordinance Chapter 433.
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18 June 1999 |