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Citation
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Judgment date
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| December 2003 |
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Spoken allegations of corruption were slanderous and actionable per se; fair-comment failed and damages were reduced.
Defamation — Slander vs libel; spoken imputations of corruption actionable per se; defence of fair comment — requires factual basis; assessment of general damages — scope of publication, pleaded matters, and proof of special damage; reduction of excessive awards.
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24 December 2003 |
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Reported
Bank validly exercised contractual power of sale after borrower's default; radio sale notices did not constitute defamation.
Contract law – Loan agreement interpretation; Clause 6 repayment schedule; Clause 7 power of sale of mortgaged property; Enforcement after default; Publication in enforcement context – defence to defamation; Demand notice and auction publicity.
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11 December 2003 |
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Reported
Contract—Loan agreement - Default to pay consecutive installments — Whether the failure constitutes breach of contract. Contract — Loan agreement — Power of sale of mortgaged property securing the loan - When the power ofsale is exercisable.
Torts - Defamation - Advertisement of sale of mortgaged property over the radio — Whether the advertisement is defamatory of the defaulting borrower. |
11 December 2003 |
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The appellants’ appeal was time-barred; the registrar cannot lawfully extend the appeal period by certificate.
Civil procedure — Appeals — Time limits under Rule 83(1) — Exclusion for time to prepare copy of proceedings — Registrar’s certificate of delay — Registrar lacks power to extend appeal time — Only Court can extend time — Failure to state address for service in record (Rule 89(1)(b)) — Substantial compliance and no prejudice test.
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10 December 2003 |
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Reported
Appeal struck out as time‑barred; registrar cannot extend appeal time by issuing a second certificate of delay.
* Civil procedure — Appeals — Time limits under Rule 83(1) — 60 days from supply of proceedings — appeal time‑barred.
* Civil procedure — Certificate of delay — Registrar cannot extend time to institute appeal — only Court may grant extension.
* Civil procedure — Two certificates of delay — later certificate cannot validate a time‑barred appeal.
* Civil procedure — Record of appeal — omission of address for service under Rule 89(1)(b) — substantial compliance and absence of prejudice may cure defect.
* Professional conduct — Advocate’s lack of diligence does not excuse non‑compliance with court rules.
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10 December 2003 |
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Section 28(1) bars civil courts from hearing tort claims arising from the same cause of action as a summary dismissal.
Labour law — Security of Employment Act 1964 — s.28(1) — ouster of civil court jurisdiction over matters relating to summary dismissal — tort claims (defamation, loss of service/consortium) arising from same cause of action — no severance to circumvent statutory bar — proceedings declared nullity.
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4 December 2003 |
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Non‑compliance with Rules 77(1) and 83(2) nullifies the notice of appeal; the appeal is struck out.
Court of Appeal Rules — Rule 77(1) (service of copy of notice of appeal) — Rule 83(2) (copy of letter applying for copies of proceedings) — Non‑compliance nullifies notice of appeal — Appeal struck out.
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2 December 2003 |
| November 2003 |
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Reported
Improper summary dismissal under s.364(1)(c) CPA led to quashing of conviction and ordered release.
Criminal procedure – Summary dismissal of appeals – section 364(1)(c) Criminal Procedure Act – limited to grounds that conviction is against weight of evidence or sentence excessive – powers to be exercised sparingly – requirement to peruse record and ideally give reasons – appellate remittal vs. Court of Appeal’s revision powers (s.4(2) AJA) where miscarriage of justice apparent. |
24 November 2003 |
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Reported
Civil Practice and Procedure — Arbitration -Application for stay of proceedings pending reference to arbitration - Application to be made before filing a written statement ofdefence or taking any other step in the proceedings.
Civil Practice and Procedure — Applications -Application for stay of proceedings pending reference to arbitration - Application for stay is followed by an oral application by the other party - Whether Court may entertain the
oral application.
Natural Justice - Application for stay of proceedings is followed by an oral application by the respondent — Appellant constrained from effectively taking part in the oral application by respondent — Effect of participation by appellant in the oral application made by respondent. |
24 November 2003 |
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Reported
Oral interim winding-up application wrongly entertained before arbitration-stay decision; deposit order quashed.
Arbitration – stay under section 6 Arbitration Ordinance; Civil Procedure – oral applications under proviso to Order XLIII, Rule 2 CPC; Interim relief in winding-up proceedings; Protection of arbitration rights; Natural justice — condemned unheard.
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24 November 2003 |
Criminal Practice and Procedure — Appeal - Summary dismissal of appeal by the High Court - Whether High Court may summarily dismiss an appeal - Section 364 of the Criminal Procedure Act.
Criminal Practice and Procedure — Appeal - Summary Dismissal of appeal by the Court — Whether the Court may summarily dismiss the appeal without giving reasons.
Criminal Practice and Procedure - Appeal - Appeal dismissed summarily by the High Court- Whether Court of Appeal may step into the shoes of the High Court and hear and determine that appeal - Section 4 of the Appellate Jurisdiction Act 1979. |
24 November 2003 |
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An appeal from a High Court decision under the Arbitration Ordinance requires leave; absence of leave renders the appeal incompetent.
Arbitration Ordinance – proceedings under Arbitration Rules are governed by Rules of Court made under the Ordinance – appeals from High Court decisions under the Arbitration Ordinance fall under section 5(1)(c) of the Appellate Jurisdiction Act and require leave – failure to obtain leave renders the appeal and notice of appeal incompetent and liable to be struck out.
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21 November 2003 |
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Appeal from High Court arbitration proceedings requires leave; failure to obtain leave renders appeal and notice of appeal incompetent.
Arbitration — proceedings under the Arbitration Ordinance governed by Arbitration Rules (section 20) — such proceedings not "under the Civil Procedure Code" for s.5(1)(a) of the Appellate Jurisdiction Act — appeal falls under s.5(1)(c) and requires leave — failure to obtain leave renders appeal and notice of appeal incompetent and liable to be struck out.
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21 November 2003 |
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An extension of time to appeal was granted due to Registrar’s delay and the applicants’ demonstrated diligence.
Civil procedure – extension of time – Rule 8 Court Rules 1979 – sufficiency of reasons – Registrar’s delay in issuing certified copies/certificate of delay – applicant’s diligence in prosecuting appeal – interlocutory strike-out application and its effect on timing.
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21 November 2003 |
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Reported
Civil Practice and Procedure - Case instituted by numerous plaintiffs — Whether only a few ofthem may testify on behalf of the others
Labour law - Payment of subsistence allowance — Appellants paid transport costs to places of domicile — Whether respondent also obliged to pay subsistence allowance to appellants. |
21 November 2003 |
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Reported
Whether terminated workers proved employment and entitlement to subsistence allowance where transport was paid but repatriation liability was not shown.
Labour law – proof of employment for multiple claimants via Labour Officer’s report and annexures; entitlement to subsistence allowance depends on legal repatriation liability (Employment Ordinance s.53); payment of transport costs does not create estoppel or automatic entitlement to subsistence allowance; civil standard of proof is balance of probabilities.
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21 November 2003 |
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Reported
Court held government retained ownership; statutory notices and possession did not vest property in the judgment debtor.
Property law – vesting of government property post-1964; Public Enterprises Decree – enabling power to acquire property vs. vesting; Legal Notice designating head office does not vest ownership; Freeport declaration (Legal Notice) does not transfer title; handing-over note and long possession do not confer ownership against the government. |
20 November 2003 |
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A notice of appeal not endorsed by the Registrar (or authorized deputy) is defective and the appeal is struck out.
Civil procedure – Appeal procedure – Notice of appeal – Requirement that notice be lodged with and endorsed by the Registrar under Rule 76 and Form D – No delegation of Registrar's endorsement – Defective notice renders appeal incompetent – Strike out under Rule 82 with costs.
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20 November 2003 |
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Applicant failed to prove respondent sourced the defamatory article; appeal dismissed and cross-appeal for costs allowed.
Defamation — burden of proof on person alleging source of publication; production of documents — late production and Order XV r.2; relevance — post-dated documents; evidentiary conflicts — resolution without expert where parties fail to call one; costs — follow the event.
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20 November 2003 |
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Revision application struck out for citing wrong statutory provision and failing to state grounds, constituting incompetence and abuse of process.
Appellate procedure – Revision – Correct enabling provision required to properly move the Court; Court Rules – Notice of motion must conform to Form A and state grounds (Rule 45(2)); Procedure – Revision versus appeal – pursuing concurrent remedies may constitute abuse of process.
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14 November 2003 |
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Reported
Application for revision struck out where wrong statute cited and notice of motion failed to state grounds, constituting incompetence and abuse of process.
* Civil procedure – Revision – Requirement to cite correct enabling provision when moving the Court; wrong or inapplicable citation renders application incompetent. * Court Rules – Notice of Motion/Form A – Rule 45(2) requires grounds to be stated; failure to do so is a fatal defect. * Amendment – Typographical errors in enabling provisions must be corrected before preliminary objection is determined. * Abuse of process – Seeking revision while appeal/extension/leave proceedings are pending is improper where the order is appealable with leave.
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14 November 2003 |
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Reported
Civil Practice and Procedure — Court process - Party pursuing two different avenues in different Courts at the same time — An abuse of the Court process.
Civil Practice and Procedure - Applications - Application to Court of Appeal - Notice of motion citing a wrong or non-existent provision of law - Whether valid. Court of Appeal -
Court of Appeal Rules - Application for revision - Form prescribed for application - Notice of Motion not substantially conforming to prescribed form -Whether Court can properly be moved - Rule 45(2) of the Court of Appeal Rules 1979. |
14 November 2003 |
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Reported
Banking - Securities for bank advances - Mortgage over house - Whether mortgage is a simple mortgage - Preconditions for realization of a simple mortgage - Section 58(3) of the Transfer of Property Decree Chapter 150 of the Laws of Zanzibar.
Mortgages — Mortgage over a house - Whether the mortgage is a simple mortgage - Conditionsfor realization of a simple mortgage.
Land Law - Sale ofmortgagedproperty - Sale by auction.- No evidence of foul play - Whether price obtained is the market price at the auction. |
12 November 2003 |
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Bank entitled by mortgage deed to sell without court intervention; notice and public auction were valid, appeal dismissed.
* Mortgage law – characterisation of mortgage – whether deed constituted a simple mortgage under s.58(3) of Cap.150. * Power of sale – contractual clause permitting exercise of statutory powers ‘‘without the restrictions’’ of the Transfer of Property Decree – effect on requirement for court intervention (s.69). * Notice – validity of demand and notice prior to sale. * Sale procedure – public auction v. private treaty; evidentiary burden to prove collusion and undervalue. * Civil procedure – parties bound by pleaded issues; unpleaded issues cannot be decided at appeal.
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12 November 2003 |
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Mortgage deed allowing exercise of sale powers without statutory restrictions authorized sale without court intervention; appeal dismissed.
* Mortgage law – Characterisation of mortgage: simple mortgage (s.58(3)) versus power-to-sell by agreement; contractual removal of statutory restrictions on power of sale. * Transfer of Property Decree (Cap.150) – Interaction of clause 10 (events rendering principal due) and clause 11(a) (power of sale). * Procedure – Requirement (or not) of court intervention before sale where parties contractually permit sale without statutory restrictions. * Notice and demand – Lawful demand and notice under mortgage clauses. * Auction law – Validity of sale by public auction; duty of auctioneer and mortgagee to procure fair price. * Contract interpretation – Ambiguities in mortgage/loan documentation and consequences for mortgagor.
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12 November 2003 |
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Whether an express contractual clause in a mortgage can permit a mortgagee to sell without statutory restrictions or court intervention.
Mortgage law — characterization of mortgage: simple mortgage v. anomalous/contractual mortgage; contractual clause authorizing mortgagee to exercise statutory powers without statutory restrictions; power of sale — requirement (or not) of court intervention; notice and timing conditions under section 69; interplay between mortgage deed clauses and Transfer of Property Decree.
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12 November 2003 |
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Reported
Labour law - Terminal benefits - Assessment of terminal benefits - Assessment done by Labour Officer but disputed by the appellants — Whether assessment by Labour Office was reliable.
Labour law — Respondent had given money for purchase of motor cycle as means for transport for the first appellant while working for respondent - Whether the motor cycle belonged to the respondent on termination of the contract of employment.
Civil Practice and Procedure - Judgment - Judgment too scanty and contained in only two sentences - Whether meeting the requirements of a judgment - Order XLVI, rule 31 of the Civil Procedure Decree Chapter 8 of the Laws of Zanzibar. |
11 November 2003 |
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Appeal allowed where High Court failed to investigate third‑party objection to execution; matter remitted for rehearing.
Civil Procedure Decree (Zanzibar) – objection proceedings – Order XXIV Rules 50(1) & 51 – duty to investigate objector’s claim; appealability – Order XLVII Rule 1(j) and Order XXIV Rule 53 – leave required under Section 5(1)(c) Appellate Jurisdiction Act; third‑party objections to execution.
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11 November 2003 |
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Reported
Civil Practice and Procedure - Objection proceedings — Duty of the Court in objection proceedings - Order XLVII, rule 1(i) and Order XXIV, rule 53 of the Civil Procedure Decree Chapter 8 and section 5(1)(c) of the Appellate Jurisdiction Act 1979. |
11 November 2003 |
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A registry receipt stamp does not prove documents were supplied to the respondent's advocate; the Notice of Appeal was timely and valid.
* Civil procedure – Appeal – Notice of Appeal – whether registry receipt stamp proves supply of proceedings to advocate – effect on computation of limitation period under Court of Appeal Rules 1979 (Rule 84). * Service/supply of records – proof required; registry endorsement insufficient if registrar avers wrongful issue to an unidentified person. * Striking out – application dismissed where notice filed within statutory period after actual supply to advocate.
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10 November 2003 |
| October 2003 |
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Reported
Appellate courts must give reasoned judgments; doubtful identification and unjustified sentence enhancement require quashing conviction.
Criminal law – appeal – requirement under section 276(1) for judgments to state points for determination and reasons; identification evidence – visual identification and adequacy of descriptions; sentencing – limits of judicial notice and improper enhancement of sentence without factual basis. |
31 October 2003 |
Criminal Practice and Procedure — Appeals - Second appeal - Duty of an appellate Court on a second appeal - Section 276(1) of the Criminal Procedure Decree of Zanzibar.
Evidence - Misdirection or non-direction on the evidence - Duty of appellate Court when there have been mis-directions or non-directions by the Court(s) below.
Criminal Practice and Procedure - Judgment - What a judgment should contain - Section 276(1) ofthe Criminal Procedure Decree Zanzibar. |
31 October 2003 |
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Reported
Administrative Law - Delegation of Powers — Power to issue clove export permit - Power vested in a Sheha - Whether that power may be exercised by a shehia councillor - Regional Administration Authority Act Number 1 of 1998, Interpretation of Laws and General Provisions Act 1984, and the Cloves Act 1985. |
31 October 2003 |
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Reported
A clove-transport permit issued by an advisory council member and lacking required purpose is invalid; appeal dismissed.
Criminal law — Cloves Act 1985 s3(1),(2): export/transportation requires valid permit stating purpose and reason; Sheha alone (or authorized deputy) may issue permits — Shehia Advisory Council members lack licensing authority; Interpretation Act s63(4) applies only where person is charged with office duties; omission of mandatory particulars invalidates permit.
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31 October 2003 |
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Appeal allowed: 21‑year manslaughter sentence set aside after judge relied on irrelevant, unproved factors under s.320.
Criminal law – Sentencing – Manslaughter – Whether sentence manifestly excessive – Sentencing court’s reception of evidence under s.320 Criminal Procedure Act – Relevance of deceased’s circumstances to sentencing the accused – Appellate interference where sentencing rests on irrelevant or unproven factors.
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31 October 2003 |
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Failure to inform accused of right to counsel does not void trial absent state-funded legal aid; gaps in chain of custody raised tampering concerns.
* Criminal procedure – right to legal representation – s.162 Criminal Procedure Decree – statute confers right to be defended but does not obligate court to inform accused unless state-funded legal aid arises.
* Criminal procedure – role of presiding officer – duty to protect unrepresented accused does not require impermissible participation; no automatic nullity.
* Evidence – missing witness – prosecution not obliged to call every officer absent materiality; no adverse inference without showing witness would add material evidence.
* Evidence – chain of custody – unexplained delays and lack of custody record between seizure and analysis raise real risk of tampering of exhibits.
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31 October 2003 |
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Appellate court quashed conviction and sentence where lower courts failed to analyze evidence and sentence was improperly enhanced by judicial notice.
* Criminal procedure — Requirement under Section 276(1) for judgments to state points for determination, reasons and decision — Non-compliance renders judgment inadequate.
* Appellate review — Second appeal — Court of Appeal may re-evaluate evidence where lower courts failed to analyze or misappreciated evidence (Salum Mhando principle).
* Evidence — Identification — Visual identification by eyewitnesses must be specific and proved beyond reasonable doubt; general descriptions are unsafe.
* Sentencing — Judicial notice — Enhancement of sentence cannot be based on judicial notice of prevalence of crime absent facts on record.
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31 October 2003 |
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Reported
Revision unavailable where interlocutory refusal to stay for arbitration shows no illegality or exceptional circumstance.
Commercial Division — interlocutory refusal to stay for arbitration — competence of revision under s.5(2)(d) AJA — revisional jurisdiction requires illegality/irregularity — Halais exceptional circumstances not established. |
30 October 2003 |
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Stay of execution granted where award risked rendering appeal nugatory and applicant faced irreparable hardship.
Civil procedure — Stay of execution pending appeal — Criteria: irreparable loss, appeal rendered nugatory, balance of convenience, prospects of success; Damages — assessment of manifest excessiveness relevant to stay.
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17 October 2003 |
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Applicant granted interim injunction restraining respondent from granting tax remission for imported sugar pending suit.
Interim injunctions – prima facie/serious triable issue; irreparable harm; balance of convenience – application to restrain government tax remissions on imported sugar; alleged implied government obligation under sale agreements to maintain anti-dumping measures; Government Notice No. 68 of 2003; authorities: Giella v Cassman Brown; Atilio v Mbowe; American Cyanamid.
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13 October 2003 |
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Whether a cause of action accrues when the guarantor debits the respondent's account, affecting limitation.
* Civil procedure – preliminary objections – sufficiency of a plaint to disclose a cause of action where guarantee allegedly contravenes foreign exchange law. * Limitation – accrual of cause of action – where relief is founded on payment by guarantor, limitation runs from date of debit/payment; application of s.6 and s.26(c) Law of Limitation Act. * Foreign exchange regulation compliance – alleged illegality of guarantee/payment may ground cause of action. * Arbitration – setting aside awards – inapplicable where no petition to set aside was filed in High Court.
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9 October 2003 |
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The appellant's murder conviction was quashed because sole eyewitness identification was unsafe and uncorroborated.
* Criminal law – Identification evidence – Visual identification by a single youthful eyewitness – necessity of careful analysis of surrounding circumstances and opportunity to observe. * Evidence – Single witness rule (s.143) – requirement for corroboration or additional evidence when conditions for reliable identification are poor. * Murder – proof of malice aforethought – not to be inferred where primary identification and injury evidence are inconsistent.
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9 October 2003 |
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Reported
Failure to file the mandatory affidavit in opposition left the petitioner's debt claim uncontroverted, establishing locus standi.
Company law – Winding-up – s.167(e) Companies Ordinance (company unable to pay debts) – Locus standi of petitioner – Companies (Winding-up) Rules 1929, rule 35(1) – Mandatory filing and service of affidavit in opposition – Answer cannot substitute for affidavit – Uncontroverted debt supports winding-up petition.
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7 October 2003 |
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Reported
Company Law — Winding Up - Company’s inability to pay its debts — Repeated demands made in vain to the respondent to pay the appellant TZS. 240.5 million - Whether the respondent was unable to pay its debts - Section 167(e) of the Companies Ordinance Chapter 212.
Company Law - Winding Up - Petition for winding up - Appellant filed a verifying affidavit together with the petition on 29 March 2000 and the respondent filed an answer to the petition on 30 May 2000 - Whether the respondent legally filed a proper reply to the petition - Rule 35(1) of the Companies (Winding-up) Rules 1929.
Company Law - Winding Up - Petition for winding up - Locus standi of the petitioner - Petitioner not being a shareholder of the company — Whether may have locus standi to petition. |
7 October 2003 |
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A s.24(1)(b) reinstatement order must be implemented under s.25(1)(a); s.40A(5) compensation alternative does not apply.
Labour law – Security of Employment Act – interpretation and interplay of sections 24(1)(b), 25(1)(a) and 40A(5); scope of Conciliation Board orders; when compensation lies in lieu of reinstatement; review and enforcement of Board orders by courts; remedy where employer dissolved.
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7 October 2003 |
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Reported
Where a Board orders reinstatement under s24(1)(b) with no Ministerial reference, the employer must reinstate; s40A(5) is a distinct alternative remedy.
Employment law – Security of Employment Act: distinction between section 24(1)(b)/section 25(1)(a) (Board orders reinstatement; compulsory implementation where no Ministerial reference) and section 40A(5) (alternative remedy: statutory compensation plus 12 months' wages where orders under s40A are not complied with); improper application of inapplicable statutory provision by lower courts; enforcement and appropriate remedy where reinstatement is impossible due to employer dissolution.
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7 October 2003 |
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Where a Conciliation Board orders reinstatement under s.24(1)(b), the employer must reinstate under s.25(1)(a); s.40A(5) is a distinct alternative remedy.
* Employment law – Security of Employment Act – enforcement of Conciliation Board order for reinstatement under s.24(1)(b) – implementation under s.25(1)(a) – no option to pay statutory compensation in lieu. * Employment law – s.40A(5) – alternative remedy where reinstatement ordered under s.40A and employer fails to comply (statutory compensation plus 12 months’ wages). * Procedural error – courts below applied inapplicable provision and reviewed Conciliation Board decision.
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7 October 2003 |
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1 October 2003 |
| September 2003 |
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The applicant’s claim for terminal benefits is barred by res judicata because the issue was previously finally decided.
* Civil procedure – Res judicata – same parties, directly and substantially same issues, final decision by competent court (Section 9, Explanation IV CPC).
* Labour law – terminal benefits – repatriation and baggage costs form part of terminal dues.
* Finality of litigation – withdrawal of appeal and prior adjudication bars subsequent suit.
* Jurisdiction – LART Tribunal correctly upheld preliminary objection and declined to entertain a matter already decided.
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29 September 2003 |
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Failure to serve a notice of appeal, or to serve it within seven days as required, renders the notice of appeal void and liable to be struck out.
* Civil procedure – service of notice of appeal – compliance with Rule 77(1) – service within seven days mandatory.
* Civil procedure – consequences of non-compliance – Rule 82 – striking out defective notice of appeal.
* Evidence – proof of service – dispatch book entries and absence of affidavits from alleged recipients.
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26 September 2003 |