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Citation
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Judgment date
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| October 2000 |
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Leave to appeal granted; party-membership dispute remained live and procedural objections were dismissed.
* Electoral law – party membership – whether membership can be imposed on a person; * Justiciability – whether an application is overtaken by events after an election; * Constitutional law – power to interpret the Constitution of Zanzibar and effect on High Court supervisory jurisdiction; * Civil procedure – admissibility of affidavits and cross-examination.
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30 October 2000 |
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A plaint that discloses a cause of action but is ambiguous should be amended, not struck out.
Commercial procedure – preliminary objections to plaint – Order VII R.5 CPC – requirement that plaint show defendant’s interest and liability; cause of action test (four corners of the plaint); misjoinder/vagueness where multiple defendants sued in separate capacities; amendment of pleadings rather than striking out.
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30 October 2000 |
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Stay of execution granted pending appeal on condition the applicant deposits 10m/= as security.
* Civil procedure — Stay of execution pending appeal — Irreparable harm to appellant — Ability of judgment creditor to repay — Conditional stay on provision of security (deposit of 10m/=).
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26 October 2000 |
(Application for Stay of Execution of the decision ofthe High Court of Tanzania at Arusha, Mroso, J., in Civil Appeal No. 3 of 1997) Civil Practice and Procedure - Application for stay of execution - Principles to take into account when considering such application. |
26 October 2000 |
(From the decision of a single Judge of the Court of Appeal, Ramadhani, J.A dated 27 July 1998, Civil Application No. 3 of 1995) Appeal - Memorandum of appeal - Decree appealed against - Copy of decree to be attached to the memorandum of appeal - Whether a certified copy of decree is mandatory - Order XXXIX, rule 1(1) of the Civil Procedure Code 1966 Appeal - Decree appealed against - Decree of the Court of the Resident‘ Magistrate - Whether it must be certified - Decree signed and sealed needed no certifying. |
26 October 2000 |
(Application for Revision from the decision of the High Court of Tanzania at Arusha, Munuo, J., dated 3 May 1996, in (PC) Civil Appeal No. 63 of 1995) Court ofAppeal - Jurisdiction - Suo motu revisional jurisdiction of the Court ofAppeal —Whether the jurisdiction may be invoked where a party forfeits the right of appeal out of his own fault - Section 4(3) of the Appellate Jurisdiction Act 1979. Court ofAppeal — Revisional jurisdiction - May be exercised where the appellate process has been blocked by judicial process - Whether the Court of Appeal Rules amount to a judicial block |
26 October 2000 |
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Reported
Applicant failed to show sufficient cause for extension; Order 39 Rule 1(1) requires a copy, not a certified copy, of the decree.
Civil procedure – Order 39 Rule 1(1) – memorandum of appeal must be accompanied by a copy of the decree (not necessarily a certified copy); certified copies preferred in practice for authenticity. Extension of time – discretionary – applicant must show sufficient cause; belated invocation of alleged illegality not excusing inordinate delay.
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26 October 2000 |
(From the decision and order ofthe High Court of Tanzania at Arusha, Mroso, J., dated 25 July 1995, in Civil Appeal No. 29 of 1994) Appeals - Second appeal to the High Court - Additional evidence taken by way of affidavit — Section 29 of the Magistrates' Courts Act 1984. Natural justice - Right to cross-examine a witness -Additional evidence by way of affidavit taken on appeal - Natural justice required an opportunity to cross-examine the deponent. Civil Practice and Procedure - Appeal — Additional evidence taken by way of affidavit on second appeal - appellant not afforded opportunity to crossexamine deponent - Whether High Court was wrong - Omission not occasioning injustice — Effect thereof- Rule 108 of the Court ofAppeal Rules 1979. |
26 October 2000 |
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Reported
Revision refused where applicant abandoned appeal and available procedural remedies; revisional power not a substitute for appeal.
* Appellate jurisdiction – revisional powers suo motu – limits of revision under Appellate Jurisdiction Act – not a substitute for appeal. * Procedure – delay and abandonment of appeal – Rule 57 reference and Rule 83 extension as available remedies. * Ignorance of law and unexplained delay do not justify revisional intervention.
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26 October 2000 |
(Application for Revision from the decision of the High Court of Tanzania at Arusha, Mushi, J, dated 26 and 27 June 2000, in Miscellaneous Civil Case Numbers 73 and 27 of 2000) Civil Practice and Procedure - Revision - Revision sought in a matter that can be appealed against - Whether revisional jurisdiction may be invoked. Civil Practice and Procedure - Revision - Application for revision seeking an order to transfer the case to another judge on account of bias - First trial judge never refused to disqualify himself- Whether application proper. |
26 October 2000 |
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Reported
Revision will not be entertained where an appeal with leave lies unless exceptional circumstances are shown.
* Appellate procedure – revisional jurisdiction – applicability where appeal with leave lies – requirement of exceptional circumstances to invoke revision.
* Civil procedure – preliminary objection – competence of revision where alternative appeal remedy available.
* Injunctions – ex parte or without revocation of earlier hearing date – whether such conduct gives rise to exceptional circumstances for revision.
* Transfer/disqualification – revision not available where no order on transfer/disqualification exists to be revised.
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26 October 2000 |
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Applicants failed to show exceptional circumstances to invoke revision where an appeal with leave was available; revision dismissed.
* Appellate procedure – Revisional jurisdiction – Applicants with right of appeal (with leave) must show exceptional circumstances to invoke revision. * Procedural irregularity – Temporary injunction – Granting injunction without revoking earlier order or in applicant's absence not necessarily exceptional. * Transfer/disqualification – No basis for revision where no order to transfer or disqualify was made.
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26 October 2000 |
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High Court may receive additional evidence on appeal; omission to allow cross‑examination was error but not prejudicial.
Appellate procedure — power of High Court to take additional evidence under section 29 of the Magistrates' Courts Act; natural justice and the right to cross‑examine deponents of additional evidence; immaterial procedural errors and Rule 108 (errors not affecting merits).
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24 October 2000 |
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Reported
Service on the party or an adult family member can satisfy rule requirements; serving the advocate is not always required.
Procedure — Service of documents — Service on party vs advocate; compliance with Court of Appeal Rules 83(2) and 90(1); valid substituted service — record left with adult family member under rule 20(1) read with Order V rule 15 (CPC amendments).
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19 October 2000 |
(Application to strike out an appeal from the judgment and decree ofthe High Court of Tanzania at Moshi, Munuo, J., dated 15 January 1998 in Civil Appeal No.38ofl993) Civil Practice and Procedure - Appeal - Service in appeals to the Court of Appeal- Service of memorandum ofappeal and record of appeal- Whether service on the party and not the advocate is good service — Rule 90(1) of the Court of Appeal Rules 1979. Appeal - Service - Letter to the Registrar asking for proceedings - Copy of the letter to be sent to the respondent - Rule 83(2) of the Court of Appeal Rules 1979. Civil Practice and Procedure - Appeal - Service of record of appeal - Record of appeal served on adult member of the household of the family of the respondent - whether sufficient service - Rule 20(1) of the Court of Appeal Rule 1979, and Order V, rule 15 of the Civil Procedure Code 1966 |
19 October 2000 |
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Stay of execution granted pending appeal due to applicant’s long possession and family dependence.
Stay of execution – pending appeal – balance of convenience – long possession and livelihood – potential hardship – discretion as to costs in family disputes
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17 October 2000 |
(From the decision of the High Court at Arusha, Mroso, J., dated 3 June 1998, in Civil Appeal No.36 of 1997) Civil Practice and Procedure - Stay of execution - Application for stay of execution pending appeal - Immediate execution will dispossess applicant of land she has been occupying for a long time - Dispossession before final determination of dispute not justified. |
17 October 2000 |
(From the Ruling of the High Court of Tanzania at Dar es Salaam, Mapigano, Mkwawa and Bubeshi JJ., dated 24 October 1997, in Miscellaneous Civil Cause No. 30 of 1975) Labour Law - Retrenchment of employees - Minister’s decision to confirm retrenchment faulted by the High Court- Whether the High Court is automatically bound to issue the orders of mandamus and certiorari. Prerogative Orders - Application for orders of certiorari and mandamus and certiorari - High Court finds that the Minister’s decision is legally erroneous - Whether High Court has discretion not to grant the orders |
6 October 2000 |
(From the Judgment of the High Court of Tanzania at Dar es Salaam, Chipeta, J., dated 9 August 1999, in Civil Case No. 326 of 1997) Civil Practice and Procedure - Execution - Execution of decree for delivery of immovable property - Whether execution order is necessary for effectual execution - Order XXI, rule 33(f) of Civil Procedure Code 1966. |
5 October 2000 |
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Reported
Stay refused because the decree was already executed by delivery of possession, leaving nothing to stay.
• Civil procedure — Stay of execution pending appeal — stay cannot be granted where decree already satisfied by delivery of possession.
• Execution of judgment — physical entry or peaceful delivery may complete execution without a formal writ.
• Interlocutory injunction — injunction in separate proceedings does not automatically vitiate possession under a decree if it concerns different subject-matter.
• Capacity/security — issue whether a specified corporation in receivership can bind property by security noted but not decided.
• Procedural — whether an appeal was filed out of time is relevant but not determinative where decree has been executed.
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5 October 2000 |