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Citation
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Judgment date
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| September 2001 |
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30 September 2001 |
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Reported
Res judicata bars the applicant's subsequent suit since the same issues and a determination of the loan existed earlier.
Civil procedure — Res judicata — Section 9 and Explanation IV — Issues directly and substantially in earlier suit; preclusion of matters that could and ought to have been raised; prior determination of contract rendering subsequent breach claims unenforceable.
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30 September 2001 |
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Reported
Civil Practice and Procedure - Res judicata - In the previous case the plaintiff,
sued the defendant for a declaration that he (the plaintiff) was not in
breach of agreement with the defendant and for an order determining the < agreement - In the subsequent suit the same plaintiffsues the same
defendant for a declaration that it was the defendant who was in breach
of the agreement - Whether the doctrine of res judicata applies - Section
9 of the Civil Procedure Code 1966. |
30 September 2001 |
|
Res judicata barred the applicant's suit; prior judgment had determined the loan agreement, rendering subsequent claims untenable.
Civil procedure – res judicata (section 9 CPC and Explanation IV) – issues which might and ought to have been raised earlier; Determination of contract – effect of prior declaration that agreement is determined; Abuse of court process – successive suits on same cause of action.
|
30 September 2001 |
|
Reported
Article 83(4) allows appeals as of right only from final High Court determinations on election validity, not routine interlocutory orders.
* Constitutional law – article 83(4) – scope of right of appeal in election petitions – limited to final High Court determinations on election legality or vacancy; interlocutory orders only if they finally dispose of the matter. * Appellate procedure – relation between article 83(4) and section 5(1) Appellate Jurisdiction Act – constitutional provision is primary; where article 83(4) does not apply appeals governed by section 5(1) (leave required). * Precedent – Ngalai v Salakana distinguished as having been interpreted too widely.
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20 September 2001 |
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Revision of stay of garnishee order struck out as time-barred and appealable, requiring leave to appeal.
Civil procedure — Revision v. Appeal — Competence of revision where order is appealable — Leave required under s.5(1) Appellate Jurisdiction Act; Time limits for revision (sixty days); Garnishee orders and effect of subsequent consent orders; Procedural fairness and disclosure between counsel.
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14 September 2001 |
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Reported
Criminal Practice and Procedure -Appeals - Appeals by the Director of Public
Prosecutions - Notice of Appeal filed by the Regional Crime Officer -
Whether such appeal properly before the Court - Sections 279, 370 and
379(a) of the Criminal Procedure Act 1985.
Criminal Practice and Procedure - Appeals - Notice of Appeal by the Director
of Public Prosecutions — Meaning of Director of Public Prosecutions -
Section 377 of the Criminal Procedure Act 1985.
Statute - Interpretation of statute - Cross references to sections in the same
statute - The Criminal Procedure Act 1985 - Meaning of the word “section ”
in section 377 of the Criminal Procedure Act 1985. |
14 September 2001 |
|
Reported
Notice of intention to appeal under section 379(a) must be given by the Director or an officer shown to be subordinate and acting under his instructions.
Criminal Procedure — Appeals by Director of Public Prosecutions — Section 379(a) notice of intention to appeal — who may give notice — section 377 interpretation; subordinate officers acting under general or special instructions; typographical error corrected to 'sections'.
|
14 September 2001 |
(From the Judgment ofthe Resident Magistrate’s Court ofArusha, Extended Jurisdiction, dated 27 October 1998, in Criminal Appeal No. 26 of 1998) Criminal Practice and Procedure - Defence - Defence of alibi - Need to give notice of defence of alibi - Section 194 (b) ofthe Criminal Procedure Act 198 |
14 September 2001 |
|
Appellant’s failure to serve required documents and to file an extracted order led to the appeal being struck out.
Civil procedure — Court of Appeal Rules — Service of Notice of Appeal (Rule 77); Supply of copies of proceedings; Extraction and filing of order from lower court judgment (Rule 38); Exemption from rules (Rule 83); Non-compliance warrants striking out appeal.
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14 September 2001 |
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An out-of-time application for leave to appeal deprived the High Court of jurisdiction, rendering the purported leave void.
Civil procedure – Time limits and jurisdiction – Application for leave to appeal filed out of time – Registrar’s delay not a sufficient excuse where counsel failed to file or seek extension – Rule 46(3) construed as not imposing annexation requirement for High Court leave applications – Preliminary objection competent to raise jurisdictional/time‑bar issue.
|
14 September 2001 |
Civil Practice and Procedure - Res Judicata - Appellant was not a party to
previous suit but had a common interest with parties on one side - The
parties in the previous suit were the appellant's mother and sister- Whether
plea ofres judicata is available. |
14 September 2001 |
|
Appellant's 1991 land suit was time-barred; Limitation Act s.16 misapplied and constitutional rights cannot be relied on retrospectively.
* Limitation law – applicability of the Limitation Act to customary-law proceedings – s.50 Limitation Act excludes Act (save s.43) from customary proceedings – Customary Law (Limitation of Proceedings) Rules, 1963 govern such proceedings. * Limitation – disability under s.16 Law of Limitation Act – necessity of adducing evidence at trial; petition statements are not evidence. * Limitation – non-judicial protests do not suspend limitation but may bear on extension under the Rules. * Constitutional law – non-retrospectivity of later-enacted basic human rights in challenging 1974 confiscations.
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14 September 2001 |
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Reported
An appellant not party to earlier suit may be bound as a privy where a common interest existed, making later suit res judicata.
* Civil procedure – res judicata – section 9 and Explanation VI – privies and persons claiming under litigants with common interest; multiplicity of suits and abuse of process; compensation issue previously decided.
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14 September 2001 |
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Employer not vicariously liable for employee's deliberate act outside the course of employment.
Vicarious liability – course of employment – distinction between negligent accident and deliberate act; proof of collusion – inadequate where only acquaintance and brief conversation shown; employer not liable for intentional wrongful acts outside scope of duties.
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14 September 2001 |
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Reported
Conviction quashed where courts failed to consider uncalled alibi witness whose potential evidence raised reasonable doubt.
Criminal law – Right to call witnesses – Alibi evidence – Prior notice of alibi – Appellate review where trial or appellate court fails to consider potential uncalled witness evidence – Conviction quashed for unresolved doubt.
|
14 September 2001 |
|
Reported
Appeals - Appeal to the Court of Appeal - Notice of Appeal - Whether Notice
of Appeal filed in the sub registry of the Court of Appeal and signed on
behalf of Deputy Registrar of the Court of Appeal is valid.
Appeals - Appeals to the Court of Appeal — Notice of Appeal — Filing of the
Notice of Appeal - Notice of Appeal to be filed in the High Court — Rule
76(1) of the Court of Appeal Rules 1979.
Court of Appeal - Court of Appeal Rules - Notice of Appeal - Form of the
Notice of Appeal - Notice of Appeal to be in Form in the first Schedule
to the Court of Appeal Rules - Rule 76(6) of the Court of Appeal Rules
1979. |
14 September 2001 |
|
Reported
Conviction quashed where money was paid for a house, not in reliance on alleged money-multiplying pretence.
Criminal law – Obtaining money by false pretences – Whether the alleged false representation induced the victim to part with money; Misdescription of the inducing representation renders the charge misconceived; Conviction quashed where pleaded pretence did not cause the payment.
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13 September 2001 |
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Leave to appeal denied; substituted service was properly proved and ex-parte judgment not shown to be vitiated.
Civil procedure – application for leave to appeal – substituted service – affidavit of service – sufficiency of proof and effect of applicant's non-attendance; Evidence – allegation of judgement based on hearsay – requirement to show prejudice or vitiation of judgment; Court of Appeal Rules – requirement to seek leave from High Court under Rule 44 and to attach drawn order under Rule 46(3).
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13 September 2001 |
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Leave to appeal denied where substituted service was proved and ex‑parte decree was properly entered.
* Civil procedure – substituted service – sufficiency of affidavit of service – ex‑parte proceedings justified by repeated non‑attendance. * Evidence – hearsay – whether judgment was founded on inadmissible hearsay. * Court of Appeal Rules – requirements as to mode of application, attachment of drawn High Court order (Rule 46(3)), and seeking prior leave from High Court (Rule 44).
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13 September 2001 |
(From the judgment ofthe High Court ofTanzania at Moshi, Mchome, J. dated 3 November 1999, in CriminalAppeal No. 73 of 1994) Criminal Law - Charge - Obtaining money by false pretence - Charge alleges obtaining money byfalsely claiming to be able to multiply it but complainant parted with the money to purchase a house - Whether the charge has a basis. |
13 September 2001 |