|
Citation
|
Judgment date
|
| December 1994 |
|
|
A taxing officer may award reasonable travel and accommodation expenses to a lay litigant; post-judgment costs require a court order.
* Taxation of costs – post-judgment costs – not allowable without lawful court order. * Taxation of costs – discretion to allow travel, food and accommodation to a litigant in person – receipts lost – taxing officer’s discretion upheld. * Distinction between counsel’s professional expenses and lay litigant’s necessary disbursements. * Application and limits of scale of costs and relevant taxation rules.
|
28 December 1994 |
|
Where prosecution cannot proceed after adjournments, the magistrate should discharge—not acquit—the respondent under the Act.
Criminal procedure – Adjournments and discharge – Distinction between private and State prosecutions – s.222 inapplicable to State prosecutions; s.225 governs adjournments and permits discharge where prosecution cannot proceed; s.230 applies only at close of prosecution case; statutory amendment limits reliance on pre-amendment precedents.
|
27 December 1994 |
|
Reported
Probate and Administration - Administration of Estate - Powers of the Primary Court to appoint and replace an administrator - Rules 2(a) and (b) of the First Schedule of the Magistrates’ Courts Act, 1984.
Probate and Administration - Challenging validity of appointment of an administrator - Onus of proof
Probate and Administration - Disposition of property - Whether consent from all heirs is necessary before sale of property. |
23 December 1994 |
Constitutional Law - Fundamental rights - Right to property: Whether customary rights in land are property rights. P Basic rights under the Constitution - Right to property protection against- deprivation of property without fair compensation - Whether compensation payable where there are no unexhausted improvements - The Nyerere doctrine of land value. Basic rights - Right to property - Extinction of customary rights in land- Whether discriminatory - Constitution of the United Republic of Tanzania Articles 13(5) and 24(1) and Regulation of Land Tenure (Established Villages) Act 1992. Constitutional Law - Separation of Powers - Act of Parliament ousts jurisdiction ofthe courts - Whether constitutional- Constitution of the United Republic of Tanzania, Articles 4 and 13(6) (a) and Regulation of Land Tenure (Established Villages) Act, 1992. 7 Constitutional Law - Supremacy of Constitution over Acts of Parliament- Some sections of Acts of Parliament violating Constitution - Whether whole Act or only offending sections are invalid - Regulation of Land Tenure (Established Villages) Act, 1992. y Land Law — Customary rights in land - Extinction - Whether extinction of customary rights amounts to acquisition |
21 December 1994 |
|
Customary/deemed occupancy rights are constitutional property; extinguishment without fair compensation and total ouster of courts is unconstitutional.
* Constitutional law – property rights – customary/deemed rights of occupancy under Land Ordinance constitute "property" under Article 24 and require fair compensation on deprivation; * Land law – trustee doctrine – public land vested in President on trust for indigenous inhabitants; * Compensation – includes value added/unexhausted improvements (Nyerere Doctrine of Land Value); * Constitutional law – separation of powers – statute cannot oust ordinary courts' jurisdiction; land tribunals must be subordinate; * Statutory interpretation – section 4 of Act No.22/1992 and limits on compensation; * Remedies – partial invalidation rather than wholesale striking down.
|
21 December 1994 |
|
Whether the respondents' customary occupancy rights are constitutional property and unlawfully extinguished without compensation.
* Constitutional law — Property — Customary/deemed rights of occupancy as constitutional "property" under Article 24 — deprivation without fair compensation prohibited. * Land law — Compensation — includes value added by occupier (Nyerere Doctrine of Land Value), not limited to unexhausted improvements. * Administrative/constitutional law — Ouster clauses — provisions ousting court jurisdiction unconstitutional; special tribunals must allow review or appeal. * Statute law — Severability — courts should strike down only offending provisions where remainder can operate. * Temporal effect — prior lawful extinguishments before the Bill of Rights remain effective.
|
21 December 1994 |
| November 1994 |
|
|
Reported
Labour Law - Jurisdiction - Summary dismissal - Ouster of the jurisdiction of the court — Section 28 of the Security of Employment Act, 1964.
Labour Law - Jurisdiction - Summary dismissal- Whether the court can split suit into compartments so as to exclude claims based on summary dismissal.
Civil Practice and Procedure - Amendment of cause of action -Whether judge can amend pleading without application of the parties. |
11 November 1994 |
|
The respondent's claim founded on summary dismissal ousts civil court jurisdiction under Section 28; claims cannot be severed.
Employment law – Summary dismissal – Section 28 Security of Employment Act – ouster of civil jurisdiction; claims founded on wrongful/summary termination are interwoven and not severable; impermissibility of amending/re‑characterising plaint at trial to avoid jurisdictional bar.
|
11 November 1994 |
|
Application for leave to appeal and extension of time dismissed for incompetence and failure to show sufficient cause.
Court of Appeal Rules – Rule 44 requires initial application for leave to appeal to be made to the High Court; competency of direct application to Court of Appeal; procedural requirement that leave to appeal be heard by full court; distinction between questions of fact and points of law; extension of time – sufficiency of reasons under Rule 8; negligence or withdrawal by counsel and illness insufficient to excuse long delay.
|
10 November 1994 |
|
Reported
Civil Practice and Procedure - Appeals - Appeals to the Court of Appeal- Appeal made without leave ofthe High Court where leave is required — Appeal incompetent. |
10 November 1994 |
|
A security order under Order XXXVI CPC required leave to appeal; appeal without leave was struck out with costs.
Appellate jurisdiction — appealability of High Court orders — s.5(1)(b)(viii) and s.5(1)(c) Appellate Jurisdiction Act; security for appearance under Order XXXVI CPC; requirement of leave to appeal; procedural competence — extracted order and time bar; preliminary objection under Rule 100.
|
10 November 1994 |
|
Court struck out appeal for want of leave, finding a security order was not appealable as of right under s.5(1)(b)(viii).
Appellate jurisdiction — section 5(1) Appellate Jurisdiction Act — Distinction between orders appealable as of right under s.5(1)(b)(viii) (fine or civil detention) and those requiring leave under s.5(1)(c); Security for appearance — Order XXXVI Civil Procedure Code — bond, deposit and passport retention do not equate to fine or civil imprisonment; Procedural competence — requirement for extracted order and timeliness of appeal; Rule 100 preliminary objection procedure.
|
10 November 1994 |
|
|
8 November 1994 |
|
Payment within the offer’s thirty days constituted acceptance; lack of notification did not make the offer lapse.
Land law – offer of a plot – condition that fees be "paid within thirty days" construed as referring to payment, not delivery of notification; payment within period constitutes acceptance. Evidence and credibility – appellate restraint where trial judge saw and heard witnesses. Compensation claims – require proof of receipt/use by opposing party.
|
8 November 1994 |
| October 1994 |
|
|
Reported
Criminal Practice and Procedure - Admission and evaluation of evidence - Evidence wrongly rejected by trial court - Duty of the Appellate Court. |
19 October 1994 |
|
Reported
Criminal Law - Murder - Defence of Provocation - Whether talking in riddles is provocative enough |
7 October 1994 |
|
Reported
Criminal Law - Defence of alibi - Whether prior notice is required.
Criminal Practice and Procedure - Identification of accused - Identification where offence was committed at night. |
7 October 1994 |
|
Provocation found to reduce murder to manslaughter; conviction quashed and substituted with an eight-year sentence.
Criminal law – Murder – Provocation – Whether sudden and grave provocation can reduce murder to manslaughter; uncontroverted appellant evidence; reduction of sentence.
|
7 October 1994 |
|
Reported
Criminal Law - Provocation - Whether a demand for ‘talaka’ rather than reconciliation amounts to provocation. |
7 October 1994 |
|
Reported
Criminal Law - Provocation - Sudden and grave reaction -Manslaughter and not murder. |
7 October 1994 |
|
Sentence reduced where theft from a parastatal was mischaracterised as theft of Government property, leading to excessive imprisonment.
Criminal law – Sentencing – Stealing by servant (s.271 Penal Code) – Distinction between parastatal property and Government property – Wrong statutory citation and sentencing error – Minimum Sentences Act not invoked – Appellate interference to reduce excessive sentence.
|
7 October 1994 |
|
Concurrent factual findings that appellant received an extra bank payment were upheld and conviction and sentence affirmed.
Criminal law – Stealing (s.265 Penal Code) – Sufficiency of evidence; admissions to non-police witnesses – Documentary corroboration (cheques) – Appellate review of concurrent findings of fact – Sentence under Minimum Sentences Act.
|
7 October 1994 |
|
Appeal dismissed: evidence (eyewitnesses and confession) proved murder; provocation/self-defence unavailable; a later appeal abated on appellant's death.
* Criminal law – Murder – evidence required to prove murder beyond reasonable doubt – eyewitness testimony and confession; * Criminal law – Defence of provocation/self-defence – adequacy of provocation and duty to withdraw; * Evidence – admissibility and weight of caution statements; * Civil/criminal procedure – abatement of appeal on death of appellant (Rule 71).
|
7 October 1994 |
| September 1994 |
|
|
Court may order division of assets under s.160(2) after rebuttal of s.160(1), but cannot dissolve a non‑existent marriage.
* Family law – Law of Marriage Act s.160(1) presumption of marriage – rebuttal; * s.160(2) – power to grant maintenance and consequential relief (including division of assets) where parties lived together as husband and wife for two years or more; * Courts cannot dissolve a non‑existent marriage.
|
30 September 1994 |
|
Reported
Family Law - Presumption ofmarriage - Presumption rebutted after eight years of cohabitation - Whether parties have any rights under the Law of Marriage Act 1971 |
30 September 1994 |
| August 1994 |
|
|
Malice aforethought may be inferred from prolonged, forceful assault and preventing rescue, supporting a murder conviction.
Criminal law – Murder – Malice aforethought – Inference from degree and persistence of force; credible medical and eyewitness evidence; rejection of self-poisoning defence.
|
17 August 1994 |
| July 1994 |
|
|
Where a seller reserves disposal of unascertained goods (consigned to its own office), property does not pass and seller remains liable for non-delivery and transit damage.
Sale of goods – unascertained goods – appropriation to contract – conditional appropriation where seller reserves right of disposal – consignment to seller's own office prima facie reserves disposal – property does not pass until conditions fulfilled; seller liable for failure to deliver and transit damage; assessment and duplication of damages.
|
13 July 1994 |
Sale of Goods - Contract of sale of unascertained goods by description — When property passes from seller to buyer. Sale of Goods — Passing of property - Goods appropriated to the contract, but seller has yet to do pre-delivery service and to obtain 1 customs clearance certificate for the goods - Whether property in the goods passes. |
13 July 1994 |
| June 1994 |
|
|
Applicant failed to show good cause for extension of time; counsel negligence alone did not justify relief.
Appeal procedure — extension of time under Court of Appeal Rules (Rule 8 and Rule 9(2)(b)); counsel negligence — when it may or may not constitute good cause for enlargement of time; credibility and consistency of applicant's explanations; stay of execution pending appeal.
|
28 June 1994 |
|
Unproved customary rules cannot be relied on; appeal only succeeds to require equal sharing of outstanding housing loan.
Matrimonial property — division of assets — proof and application of customary rules; raising new issues on appeal; division of matrimonial liabilities (loan); costs in matrimonial proceedings — discretion under Law of Marriage Act.
|
16 June 1994 |
|
A statutory harsher sentence enacted after the offence cannot be applied retrospectively; appellant's sentence reduced to seven years.
* Criminal law – Sentencing – Non-retrospectivity of penal legislation – Act No. 10 of 1989 could not apply to offences committed before commencement.
* Sentencing – Substitution of illegal sentence – appellate court power to set aside and substitute a lawful sentence.
* Principle – where a later harsher statutory penalty post-dates the offence, the minimum penalty in force at time of commission applies.
|
9 June 1994 |
|
Court upheld 12-year manslaughter sentences, rejecting tribal custom as mitigation and dismissing the appeal.
* Criminal law – Manslaughter – Sentencing – appellate interference – court will not disturb sentence unless manifestly excessive, relevant matter ignored, or wrong in principle; cultural/customary practice does not excuse or mitigate group lethal violence.
|
6 June 1994 |
|
Customary entitlement depriving an adulterous respondent of matrimonial assets cannot be raised on appeal without proof and prior trial consideration.
Matrimonial property division – custom – burden to prove customary law – issue raised first on appeal – inadmissible; Costs in matrimonial proceedings – discretionary; Outstanding mortgage/loan on matrimonial home – parties’ responsibility to share repayment where oversight occurs.
|
6 June 1994 |
|
Court varied stay condition: passports returned but travel abroad requires prior court leave and notice to respondent.
Civil procedure – variation of conditions attached to stay of execution; Proper procedure under Rule 59(2); Lawfulness of passport surrender and deprivation of movement where effected by due process; Change of circumstances (production of board resolutions) as ground to vary security conditions; Balancing risk of abscondment against adequacy of securities.
|
6 June 1994 |
|
Unproven customary rule cannot defeat equal division of matrimonial assets; appeal only adjusts loan-liquidation responsibility.
* Family law – divorce – division of matrimonial assets – alleged customary rule (Wachagga) disentitling adulterous spouse – requirement to plead and prove customary law before the trial court; cannot be raised first on appeal.
* Civil procedure – appellate review – new factual or legal grounds not raised at trial are not entertained on appeal.
* Family law – costs – discretionary exercise by trial court; finding of fault in breakdown does not automatically mandate that respondent bear all costs.
* Family law – matrimonial property – parties ordered to share equally the responsibility to liquidate outstanding loan on matrimonial home.
|
1 June 1994 |
| May 1994 |
|
|
Reported
Criminal Law - Murder contrary to s 196 of the Penal Code Cap 16 Criminal Practice and Procedure - Appeal- Memorandum of Appeal filed out of time - Consequences thereof- Rule 65(1) of the Court of Appeal Rules 1979. |
30 May 1994 |
|
Two appellants acquitted for insufficient evidence; four appellants' murder convictions upheld on eyewitness, voice and blood evidence.
Criminal law – murder – sufficiency of identification evidence (visual and by voice) – admissibility and weight of identification parade evidence – forensic evidence (blood stains and blood groups) as circumstantial proof – common intention and joint participation in assault causing death.
|
30 May 1994 |
|
Appellants' post‑trial silence not mitigation; sentencing principles appealable; social harmony relevant but inapplicable; appeal dismissed.
Criminal law – sentencing – silence of accused not necessarily mitigation; sentencing principles are distinct from severity and appealable; social harmony/minimising social tension may be a sentencing consideration in appropriate cases; need for evidence to individualise sentences.
|
23 May 1994 |
|
Reported
Court ofAppeal- Jurisdiction -Reviewpowers - Whether the Court of Appeal has jurisdiction to review its own decisions
Jurisdiction — Inherent jurisdiction - Whether the Court of Appeal has inherent jurisdiction -Inherentjurisdiction defined |
23 May 1994 |
|
Court of Appeal has limited inherent jurisdiction to review judgments for clerical slips, fraud, or manifest errors causing miscarriage of justice.
Constitutional and appellate jurisdiction — Court of Appeal as creature of Constitution — no express power to review its own judgments — Appellate Jurisdiction Act s.4(2) not authorising such review — inherent jurisdiction exists limitedly: for clerical slips (Slip Rule/Rule 40) and to set aside judgments that are nullities (fraud) or contain manifest errors on the face of the record causing miscarriage of justice — full bench resolves apparent conflicts in authority.
|
23 May 1994 |
|
|
5 May 1994 |
| April 1994 |
|
|
An uncorroborated extra‑judicial statement was insufficient for murder but supported conviction for receiving stolen property.
Criminal law – murder conviction – reliance on extra‑judicial statement – need for corroboration; appellate substitution of conviction – receiving stolen property (s.311(1) Penal Code); setting aside death sentence.
|
19 April 1994 |
|
Late filing and multiple procedural defects led the court to strike out the Notice of Appeal with costs.
Procedure — Appeal time limits — Notice of Appeal filed beyond 14 days; procedural irregularities (failure to serve, wrong heading, combining distinct applications, misfiling) — lateness and procedural defects not condoned — Notice of Appeal struck out with costs.
|
19 April 1994 |
|
Reported
Evidence - Identification of accused persons - Murder committed at night during a burglary - Whether identification of the accused as the murderers could not have been mistaken. |
19 April 1994 |
|
Appeal dismissed: court affirmed murder convictions based on reliable eyewitness recognition and supportive identification circumstances.
* Criminal law – Murder – Identification evidence at night – recognition by witnesses who knew the accused – reliability of identification parade and prompt reporting to police.
* Criminal procedure – Alibi defence – assessment of credibility by trial court and appellate restraint on overturning factual findings.
|
19 April 1994 |
Evidence - Contradictions and inconsistencies in testimonies of witnesses - Duty of the trial court to address them.
Evidence - Burden of proof - Burden of proof in a charge of murder - Burden is always on the prosecution to prove the charge.
Criminal Law - Murder - Presumption of murder - Child stolen and never seen again - Whether conviction for stealing the child is sufficient to conclude that the child is dead and the person convicted of stealing the child is responsible for the death. |
11 April 1994 |
| March 1994 |
|
|
A stay of execution cannot be granted where no valid Notice of Appeal has been filed; application dismissed with costs.
Civil procedure – stay of execution – requirement that Notice of Appeal be filed before applying for stay – Rule 9(2)(b) of Court of Appeal Rules – court cannot construe an intended/unfiled notice as a valid notice – application dismissed with costs.
|
30 March 1994 |
|
The appellant’s conviction quashed where it rested on an inadmissible, uncorroborated police confession of doubtful voluntariness.
Criminal law – confession to police officer – admissibility – Sections 27 and 3 Evidence Act 1967 – voluntariness – corroboration – insufficiency of hearsay evidence – reversal for failure to prove beyond reasonable doubt.
|
25 March 1994 |
Criminal Practice and Procedure - Sentencing - Accused sentenced under a law not in existence when the offence was committed - Sentence illegal. |
21 March 1994 |
|
Guilty plea and statutory bar prevent appellate review of sentence severity in grievous-harm conviction.
* Criminal law – Offence: causing grievous harm (Penal Code) – Guilty plea – Effect of unequivocal plea on appellate review. * Appellate jurisdiction – Appellate Jurisdiction Act 1979 s.6(7)(a) – Bar on appeals raising non-legal issues, including severity of sentence. * Criminal procedure – Second appeal – limits on re-opening convictions entered after guilty pleas.
|
20 March 1994 |