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Citation
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Judgment date
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| December 2002 |
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Court allowed informal amendment substituting correct respondent and granted stay of execution pending appeal.
Civil procedure — Appeal — Correction of misnamed respondent by informal amendment — Rule 45(3)(a) and Rule 3(2)(b) — Amendment not a new notice of appeal; limitation inapplicable — Rule 79(1) duty to furnish address for service — Stay of execution granted.
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31 December 2002 |
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Limitation under the Tanzania Harbours Authority Act ran from transfer of the goods, rendering the claim time‑barred.
* Limitation – Tanzania Harbours Authority Act – 12‑month period – accrual when goods placed in possession/ custody of authority or third party. * Procedural law – preliminary objection on limitation may be taken even if earlier abandoned. * Notice – publication in local newspaper constitutes good notice; limited circulation not fatal. * Fraud – allegations of concealment in auction notice insufficient to toll limitation. * Joint defendants – statutory limitation defence available to all jointly and severally sued defendants.
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18 December 2002 |
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Conviction quashed where failure to conduct statutory voir dire and to inform accused of rights, combined with witness discrepancies, undermined the prosecution case.
Criminal law — defilement — admissibility and competence of child witness — voir dire/voice test under s127(2) Evidence Act; Criminal Procedure Act s240(3) — accused’s right to require medical examiner’s attendance and handling of PF3; credibility of prosecution witnesses and reasonable doubt; Court of Appeal Rules — protection of appellants in custody (Rule 68(1)).
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17 December 2002 |
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Court upholds interim preservation of funds but quashes stay where supporting affidavit was incurably defective and dismisses stay application.
Civil procedure – stay of execution – interim orders to preserve status quo – affidavit defects – hearsay, speculation, argument and defective verification – when affidavit is incurably defective and effect on interim orders and stay applications.
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10 December 2002 |
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Hearsay and speculative assertions in affidavits can render stay applications unsustainable and justify quashing interim orders.
Civil procedure – interim orders and stays of execution – affidavits in support of interlocutory applications – requirement that affidavits contain facts within deponent’s personal knowledge – hearsay and speculative allegations prejudicial and potentially incurably defective – discretion to allow amendment exercised judicially.
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10 December 2002 |
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Adjournment costs taxable only for appellant’s reasonable personal expenses on the adjournment day; family subsistence claims disallowed.
* Civil procedure — Costs — Taxation governed by Court of Appeal Rules (Rule 118(2)) and Third Schedule scales — Per diem subsistence rates as guide only where no receipts available. * Costs — Adjournment — Recoverable costs limited to reasonable personal expenses incurred in relation to the hearing; expenses of non-parties/dependants not allowable unless court ordered. * Distinction between adjournment costs and substantive claims for ongoing subsistence or repatriation.
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5 December 2002 |
| November 2002 |
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Reported
Conviction for rape upheld; life sentence reduced to 30 years, 12 strokes and Shs.100,000 compensation due to unproven victim age.
* Criminal law – rape – sufficiency of evidence – child complainant’s credibility corroborated by eyewitnesses and medical evidence. * Criminal procedure – appellate jurisdiction – effect of appellant’s concession in High Court and exercise of revisionary powers. * Sentencing – age of victim determines mandatory life sentence; absence of proof of age warrants substituted sentence, caning and compensation.
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22 November 2002 |
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Reported
Criminal Procedure and Practice -Appeal - Power of the Court of Appeal on a second appeal - Whether the Court of Appeal may decide a matter not raised in and decided by the High Court on first appeal — Section 4(2) of ® the Appellate Jurisdiction Act 1979.
Criminal Practice and Procedure - Rape - Appropriate sentence for the offence of rape -Age of the victim of rape is important in determining appropriate sentence — Section 131 of the Penal Code. |
22 November 2002 |
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Appeal struck out where record and leave to appeal were obtained out of time, rendering the notice of appeal invalid.
Appellate procedure — time limits for applying for record of appeal and lodging notice of appeal; validity of leave to appeal granted out of time without extension — procedural non-compliance renders appeal a nullity — court cannot excuse delay based solely on counsel's late awareness.
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21 November 2002 |
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Application for extension and certification dismissed: no cause shown and Court of Appeal lacks jurisdiction to certify Primary Court matters.
Appellate jurisdiction – rule 5(2)(c) AJA 1979 – certification of point of law in matters from Primary Courts; jurisdiction of High Court versus Court of Appeal; extension of time – sufficient cause requirement; distinction between questions of law and fact.
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15 November 2002 |
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A successful party cannot use review to reopen a final judgment merely because the decree proves unenforceable abroad.
Civil Procedure — Review of judgment — Order XLII Rule 1 — requirement of aggrieved party and newly discovered matter; Amendment of pleadings — Order VI Rule 17 not applicable after delivery of judgment; Functus officio — judge cannot quash own judgment and rehear matter; Execution of foreign decree — inability to execute abroad is not ground for review.
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11 November 2002 |
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Reported
A successful party cannot review and have a judge quash his own judgment to remedy foreign execution difficulties.
Civil Procedure — Review (Order XLII) — requirement of aggrieved party; new and important matter; Amendment of pleadings (Order VI Rule 17) — not after judgment; Functus officio — judge cannot quash own judgment; Setting aside ex‑parte decree (Order IX Rule 13) distinct from review. |
11 November 2002 |
Civil Practice and Procedure - Review - Whether a trial judge can review and quash his own judgment and proceedings - Order XLII, rule 1 of the Civil Procedure Code 1966 .
Civil Practice and Procedure - Amendment of pleadings - Whether amendment can be allowed after delivery of judgment ~ Order VI, rule 17 of the Civil Procedure Code 1966. |
11 November 2002 |
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Applicant failed to satisfy stay-of-execution criteria and relied on an interlocutory injunction that had lapsed; application dismissed with costs.
• Civil procedure — Stay of execution — Applicant must show likelihood of success on appeal, risk of irreparable injury, and balance of convenience.
• Interlocutory injunctions — Order XXXVII (as amended by G.N. 508 of 1991) — validity for six months and requirement for lawful extension.
• Conflict between injunction and execution — lapsing of injunction removes basis for stay.
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11 November 2002 |
| October 2002 |
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Revision cannot substitute for appeal; no illegality or exceptional circumstance justified overturning refusal to stay for arbitration.
* Civil procedure — Revision — Limits of revisional jurisdiction — Non‑appellability under s.5(2)(d) Appellate Jurisdiction Act does not automatically permit revision — requirement of illegality, irregularity or exceptional circumstances.
* Arbitration — Stay of proceedings pending arbitration — filing a statement of defence may be treated as submission to court jurisdiction and abandonment of arbitration right (question of fact/discretion).
* Exceptional circumstances — prospective expense of foreign witnesses not a sufficient ground to invoke revisional jurisdiction.
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30 October 2002 |
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Appellant's provocation defence rejected; appellate court affirms murder conviction due to absence of provocatory words and vicious attack.
* Criminal law – Murder – Provocation – Whether alleged provocative words were uttered and sufficient to reduce offence. * Credibility – Appellate deference to trial court's assessment of witnesses seen and heard in person. * Summing up – Inadequate direction to assessors on provocation but no miscarriage of justice shown.
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8 October 2002 |
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Conviction unsafe where night-time visual/voice identification and corroborative lamp and confession evidence were unreliable.
* Criminal law – robbery with violence – visual identification at night – voice identification – reliability and need to eliminate mistaken identity. * Corroboration – possession of alleged stolen property (lamp) – chain of custody and unclear circumstances of recovery. * Admissibility/weight of confession – voluntariness questioned where confession said to follow beating/torture by non-police (Sungusungu) and absence of police involvement. * Appeal – conviction unsafe where identification and corroborative evidence are doubtful.
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8 October 2002 |
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An appeal is not properly instituted where the record of appeal is incomplete; the respondent's preliminary objection was upheld.
Appeals – Record of appeal – completeness – essential documents listed but missing – non‑compliance with Rule 89(1) – consequence that appeal not instituted under Rule 83(1); Preliminary objections – power to be raised under Rule 106 – adjournment to supply missing record refused where no appeal properly before Court.
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8 October 2002 |
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Court upheld convictions based on reliable night-time identification and appellants' incriminating post-offence conduct.
* Criminal law – Visual identification – Identification at night – Whether lighting and vehicle illumination plus witness familiarity rendered identification safe. * Criminal law – Circumstantial support – Accused’s flight/disappearance and falsehoods as corroborative conduct. * Evidence – Importance of cross-examination in challenging prosecution testimony.
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8 October 2002 |
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An incomplete record of appeal means the appeal is not instituted and cannot be adjourned for supplementation.
* Civil procedure – Appeals – Record of appeal – Completeness requirements under Rule 89(1)(f) – Effect of missing documents on institution of appeal under Rule 83(1).
* Civil procedure – Preliminary objection under Rule 106 – When an appeal is not properly before the court.
* Procedure – Adjournment to file supplementary record – Inapplicability where appeal not validly instituted.
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1 October 2002 |
| September 2002 |
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Default judgment requires proof of proper service; hearsay or defective affidavits cannot prove the claim.
Civil procedure – service of summons and default judgment – Order VIII r 1(1) and r 14(1); Affidavit evidence – admissibility, hearsay and statements of belief – Order XIX r 3(1); Proof on a balance of probabilities; Requirement to connect annexures/analyses to pleaded facts; Proof of special damages.
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12 September 2002 |
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Notice to an appellant takes effect on the appellant’s knowledge; payment/collection of proceedings starts the appeal period.
* Civil procedure – computation of time for instituting an appeal – notice by registrar takes effect on appellant’s knowledge/receipt; payment for and collection of proceedings may constitute awareness. * Court Rules (Rule 83(1)) – commencement of limitation period – practical evidence of notice. * Procedural objections – absence of original record does not necessarily prevent disposition of preliminary time-bar objections.
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9 September 2002 |
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Repeated, incompetent applications for stay of execution were struck out as abuse of process and lacking jurisdiction.
Civil procedure – Stay of execution – Competence where no Notice of Appeal served; multiplicity of applications and abuse of process; striking out incompetent applications; costs; resumption of High Court process.
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3 September 2002 |
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Reported
Limitation - Limitation of Time — Arbitration — Whether there is a period of limitation for a petition to set aside arbitration award — Section 21 of the Law of Limitation Act 1971, or Item 21 of Part III of the First A Schedule there to.
Arbitration — Awards - Petition to set aside an award - Whether such petition is a suit or an application - Section 15 of the Arbitration Ordinance Chapter 15, and rules 5 and 6 of the Arbitration Rules 1957.
Civil Practice and Procedure - Appeals - Matter not canvassed in the trial High Court - Whether competent to raise the matter on appeal. |
2 September 2002 |
| August 2002 |
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28 August 2002 |
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Whether prior valid appointments and a surviving-spouse will prevent a later Primary Court’s fresh appointment of an administrator.
* Probate and administration – appointment of administratrix – effect of revision orders – whether revision ordering rehearing revokes prior lawful appointment; * Probate – validity of appointment letters where original file lost; * Wills – surviving spouse’s rights under mutual will; * Administration – whether administrator must be an heir; * Civil procedure – improper appointment by a different primary court and consequences.
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22 August 2002 |
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Court finds service of notice and record of appeal sufficiently proved despite diary erasures; preliminary objection dismissed.
Civil procedure — Service of notice of appeal and record of appeal — Proof of service by affidavits and contemporaneous diary entries — Admissibility of late-filed affidavits — Ex parte application not determinative of service — Preliminary objection to strike out appeal dismissed.
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22 August 2002 |
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Preliminary objection for non‑service dismissed; court found service of notice and record of appeal proved and ordered appeal to proceed.
* Civil procedure – service of appeal documents – compliance with Rules 77(1) and 90(1) – proof of service by affidavit and contemporaneous diary entries. * Civil procedure – preliminary objection – striking out notice of appeal for failure to take essential steps – evidential sufficiency. * Procedural applications – ex parte application refusal does not of itself prove non-service.
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22 August 2002 |
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Appeal allowed: presence of General Manager did not prove unlawful bias or invalidate dismissal.
Employment law – dismissal for misconduct – alleged breach of natural justice by presence of General Manager at Board disciplinary meeting – appellate review of factual findings where trial judge relied on speculation – Board minutes and witness evidence as determinative of influence on decision-making.
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21 August 2002 |
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Respondent’s preliminary objection was unsustainable because it failed to cross‑appeal or obtain leave under section 5(2)(b).
Appellate procedure — preliminary objections — specified public corporations under receivership — requirement of leave under Bankruptcy Ordinance — effect of failure to cross‑appeal — section 5(2)(b) Appellate Jurisdiction Act, 1979.
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12 August 2002 |
| July 2002 |
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Interim High Court orders pending arbitration lapse on a final arbitral award, rendering the subsequent appeal academic and struck out.
* Arbitration law – interplay between interim court orders and arbitration – interim court orders pending arbitration lapse upon final arbitral award.
* Civil procedure – competency of appeal – absence of a subsisting order renders an appeal academic and incompetent.
* Contract (PPA) – Article providing that interim relief subsists until tariff dispute resolution – effect of arbitral finality on interim judicial relief.
* Costs – costs follow the event; taxation to proceed by usual rules.
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29 July 2002 |
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A stay was granted to prevent sale of factory/machinery pending appeal where sale would cause irreparable injury and nullify the appeal.
Loans and Advances Recovery Trust Act – stay of execution – dismissal of petition – whether non-executable order can be stayed to prevent sale of real property/machinery – irreparable injury – appeal rendered nugatory.
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25 July 2002 |
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Appeal dismissed: court upheld breach of oral agreement and that designer retained copyright, awarding damages.
* Intellectual Property – Copyright – Whether copyright in commissioned box and label designs vested in commissioner or remained with designer – applicability of Copyright Act 1956 to Zanzibar and scope of s.4(3). * Contract – oral commission and breach – entitlement to damages where designer paid for production but not for assignment of copyright. * Evidence – assessment of credibility and effect of exhibits showing production payments.
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19 July 2002 |
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An appeal missing mandatory record documents and containing defective orders is incompetent and may be struck out despite late objection.
Civil procedure — Appeal — Record of appeal — Rule 89 mandatory contents (pleadings, decree/order appealed, order granting leave) — Defective extracted orders — Appeal incompetent; Civil procedure — Preliminary objection — Rule 100 reasonable notice — Court's discretion to adjourn rather than automatically overrule late objection.
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19 July 2002 |
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Application for stay dismissed; vehicles must remain with respondent pending final determination due to irregular release and misleading drawn order.
Stay of execution – whether execution lawfully effected; court broker’s irregular release of property; clarity between judge’s ruling and drawn order; requirement to attach lower court decision and sworn affidavits in stay applications; orders pending final determination.
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11 July 2002 |
| June 2002 |
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Stay of execution granted where attachment of hotel would cause irreparable harm, subject to deposit of title, caveat and policy deed.
Civil procedure – Stay of execution – Factors: irreparable injury, prospects of success, balance of convenience – Prospects of success often speculative – Stay granted where attachment of a commercial property would cause irreparable loss – Conditions: deposit of title deed, caveat and insurance policy deed.
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26 June 2002 |
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Applicant’s late application for extension of time was struck out for unexplained delay; full court refused fresh reasons and dismissed with costs.
Civil procedure — Appeal — Extension of time to seek leave to appeal — Applicant failed to account for delay — Single judge entitled to strike out — Full court will not consider fresh reasons not placed before single judge.
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24 June 2002 |
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Will of an illiterate testator invalid where statutory requirement of two literate clan witnesses was not met.
Wills — Illiterate testator — Formal attestation requirements under GN No. 436 (Rule 19) — Need for at least four literate witnesses: two clan members and two independent non‑clan members — Non‑compliance renders purported will invalid.
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24 June 2002 |
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Court set aside premature ex parte judgment for bypassing mandatory mediation steps and remitted matter for continued ADR.
Civil procedure — Alternative Dispute Resolution (G.N. No. 422 of 1994) — Orders VIIIA and VIIIB — duty of judge to promote mediation; parties/advocates required to participate absent good cause; procedure after failed mediation — pre-trial settlement/scheduling conference and framing of issues before trial; improper ex parte proof and premature judgment set aside.
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21 June 2002 |
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Appellate court reversed High Court where misdirected evidence assessment and proven tribalist speeches voided the election.
Election law — Tribalist campaigning — Single speech exploiting tribal differences sufficient to nullify election under s.108(2)(a); Evidence — burden in election petitions (proof beyond reasonable doubt) — corroboration not a legal prerequisite post-1992; Credibility — appellate interference where trial judge engaged in conjecture, judicial notice of non-notorious facts, or applied double standards in demeanour assessment.
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18 June 2002 |
| May 2002 |
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Civil Practice and Procedure - Courts - Hierarchy of the Courts in Mainland Tanzania and Tanzania Zanzibar - [Mainland] Magistrates ’ Courts Act 1984 and [Zanzibar] Magistrates’ Courts Act 1985.
Civil Practice and Procedure - Appeals - Appeals from the High Court to the Court of Appeal - Certificate on a point of law - When a certificate on a point of law is necessary - Rule 89(2) of the Court of Appeal Rules 1979, section 5(2)(c) of the Appellate Jurisdiction Act 1979 and the Constitution A (Consequential, Transitional and Temporary Provisions) Act Number 16 of 1984.
Court of Appeal - Appeals - Appeals from the High Court to the Court of Appeal
- Certificate on a point of law - Purpose of requiring a certificate on a point of law - Conflicting decisions of the Court - Court of Appeal Rules 1979 _ The People's Courts Decree 1969. |
31 May 2002 |
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Reported
An appeal from a Zanzibar district court requires High Court leave, not a High Court certificate on a point of law.
* Appellate jurisdiction – requirement of High Court certificate under s.5(2)(c) Appellate Jurisdiction Act – construction after Act No.16 of 1984 extension to Zanzibar. * Court hierarchy – Mainland three-tier versus Zanzibar four-tier system and effects on 'third'/'fourth' appeal characterisation. * Court of Appeal Rules (Rule 89(2)) – applicability to Zanzibar appeals. * Interpretation – reading Mainland provisions to include corresponding Zanzibar enactments under s.3(2) of Act No.15/1979. |
31 May 2002 |
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Credible circumstantial and identification evidence established murder beyond reasonable doubt; appeal dismissed.
* Criminal law – Murder – circumstantial evidence and identification – requirement that circumstances exclude reasonable alternative hypotheses. * Evidence – assessment of witness credibility – domestic servants and household witnesses. * Defence – alibi – sufficiency and corroboration. * Expert evidence – post-mortem and toxicology – effect on causation. * Trial practice – direction to assessors and burden of proof.
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20 May 2002 |
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20 May 2002 |
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High Court erred in entertaining improperly pleaded preliminary points; proceedings quashed and appeal remitted for hearing on merits.
Civil procedure — Appeals to High Court — Improper use of 'preliminary points' akin to Court of Appeal Rule 100 — No equivalent under Civil Procedure Decree; procedural irregularity vitiates subsequent rulings; remedy: quash and remit for hearing on merits.
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10 May 2002 |
| April 2002 |
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Court held leave application time‑barred under Court of Appeal Rules and refused stay for unsubstantiated irreparable loss.
Court of Appeal procedure – Time limits for leave to appeal (Court of Appeal Rules r.43) – Law of Limitation Act inapplicable to Court of Appeal; Rule 46(3) copy requirement does not extend filing deadline. Civil procedure – Stay of execution – applicant must substantiate irreparable loss and respondent’s inability to satisfy decree; mere prospects of success insufficient.
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30 April 2002 |
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Reported
Criminal Practice and Procedure - Charges — Duplicity — Person charged with "Being in possession of property suspected of having been unlawfully acquired” in one count and “Retaining stolen property ” in another count, both counts referring to the same property — Whether proper - Section 312(1)(b) and 311(4) of the Penal Code.
Criminal Practice and Procedure — Order of forfeiture — Whether court can order distribution of forfeited property to beneficiaries. |
29 April 2002 |
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Representative employment suits require court leave under Order 1 rule 8; pre‑judgment interest is commercial, post‑judgment 7%–12%.
Civil procedure – representative suits – Order 1 rule 8 CPC requires leave where one or more persons sue on behalf of others; leave safeguards existence and mandate of those represented. Employment law – proceedings from labour officer’s report (s.132/134 Employment Ordinance) – magistrate to apply substantial justice and dispense with technicalities, but representative‑suit leave remains relevant. Interest – pre‑judgment interest should be at commercial rate; post‑judgment interest governed by O.20 r.21 (7%–12%); costs generally follow the event.
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22 April 2002 |
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Leave under Order 1 rule 8(1)(a) is mandatory for representative employment suits under section 134; technicality proviso does not exempt it.
* Employment law – representative suits – Order 1 rule 8(1)(a) CPC – leave to sue on behalf of others applies to employment complaints under section 134 of the Employment Ordinance.
* Section 134 Employment Ordinance – proviso permitting disregard of technicalities does not permit dispensing with mandatory leave requirement for representative suits.
* Civil procedure – protection against proceedings on behalf of dead, non-existent or unauthorised persons – fundamental nature of leave requirement.
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22 April 2002 |
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Order 1 r.8(1)(a) leave requirement for representative suits applies to employment proceedings and is not a mere technicality.
Representative suits – Order 1 rule 8(1)(a) CPC – leave to sue required – Employment proceedings under s.134 Employment Ordinance – s.134(3) does not displace leave requirement – procedural technicalities vs substantive safeguards – protection against fictitious or unauthorised plaintiffs.
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22 April 2002 |