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Citation
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Judgment date
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| December 1995 |
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Reported
Civil Practice and Procedure - Arbitration -Reference to arbitration - Claim for money admitted but theparty admitting refuses to pay - Whether there is a dispute to refer to arbitration .
Civil Practice andProcedure - Reference to arbitration -High Court dismisses suit and refers parties to arbitration without establishing that the party opting for arbitration is ready and willing to arbitrate - Whether proper — Section 6 ofthe Arbitration Ordinance, Cap 15 |
8 December 1995 |
| November 1995 |
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(From the judgment of the High Court of Tanzania at Dar es Salaam, Bahati, J) Criminal Law — Armed robbery - What constitutes armed robbery? Criminal Practice and Procedure - Charges — Charge of robbery with violence - In the commission of the offence, an arm is used - Whether the offence committed is one of armed robbery |
28 November 1995 |
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Use of a knife in robbery constitutes armed robbery, justifying the enhanced sentence; age claim raised too late and contradicted by record.
Criminal law – robbery with violence – armed robbery – use of a knife constitutes use of a dangerous or offensive weapon under Act No. 10 of 1989 and section 286 Penal Code; sentencing – 30 years’ imprisonment and caning lawful; procedure – age/juvenile status must be raised and supported on earlier proceedings; sworn statement as evidence of age.
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28 November 1995 |
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Full bench not warranted; failure to provide address for service remains consequential, locus standi question for ordinary panel.
Civil procedure – Full bench application – Whether earlier decision (Mvita) decided locus standi – Requirement to furnish address for service (Rule 79) – Consequences of failure to supply address – Issue for ordinary three-judge panel.
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27 November 1995 |
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Court refused full-bench hearing, held address-for-service requirement remains, locus standi issue left for a three-judge panel.
Civil procedure – service – requirement for respondent to supply address for service under court rules remains obligatory; prior decision in Mvita Construction Co. Ltd. did not eliminate the requirement or decide whether failure to supply an address deprives a respondent of locus standi; question to be determined by ordinary three-judge panel; application for full bench dismissed.
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27 November 1995 |
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Application for a full bench to overturn prior decision denied; failure to provide address for service remains a procedural breach to be decided by a three-judge panel.
* Civil procedure – requirement for respondent to supply an address for service – noncompliance may have consequences but does not automatically extinguish locus standi; issue distinct from limitation rulings in Tanzania Harbours Authority v. Mvita Construction Co. Ltd. * Court composition – full bench not warranted where earlier decision did not decide the specific legal point sought to be reopened.
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27 November 1995 |
(From the decision of the High Court of Tanzania at Dar es Salaam, Bubeshi, J) Civil Practice and Procedure - Temporary injunction - When applicable — Order 37 Rule 1 of the Civil Procedure Code. P Civil Practice and Procedure - Temporary Injunction - Order of injunction sought to set aside the sale of a house - Whether proper. Civil Practice and Procedure - Temporary injunction - Whether it may be issued against a stranger to the suit. Banking Law — Securities - Mortgages - Mortgage deed empowering P mortgagee to sell the mortgaged property - Whether and under what circumstances the court may interfere with such sale. |
24 November 1995 |
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A court cannot extend limitation periods suo motu; extension under section 14(1) requires an application and opportunity to be heard.
* Limitation of actions – Law of Limitation Act – section 3(1) (dismissal of proceedings after expiration of limitation) – section 14(1) (court’s power to extend time) – extension of limitation periods requires an application; court cannot extend time suo motu – procedural fairness and judicial exercise of discretion.
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21 November 1995 |
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A court may not extend limitation time suo motu under s.14(1) without first giving parties an opportunity to be heard.
Limitation of actions — Law of Limitation Act s.14(1) — extension of time for instituting an application — whether court may extend time suo motu — procedural fairness — need to afford parties opportunity to be heard before enlarging limitation period; rectification of land register; locus standi; proper forum.
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21 November 1995 |
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Second appeal dismissed; convictions upheld based on hot-pursuit arrest and omnibus sentence corrected to concurrent eight-year terms.
* Criminal law – unlawful possession of firearm and ammunition – sufficiency of evidence where accused arrested on spot following hot pursuit.
* Evidence – police witness testimony – no general requirement of corroboration where arrest and circumstances support credibility.
* Appeals – second appeal limited to points of law.
* Sentencing – irregular omnibus sentence corrected to specified concurrent terms.
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6 November 1995 |
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High Court's revisional powers are limited by statutory grounds; Limitation Act does not strictly govern probate applications.
• Civil procedure – revisional jurisdiction – High Court’s power under Magistrates' Courts Act s.43(2) read with Civil Procedure Code s.79 – limits on revision. • Probate law – limitation – Law of Limitation Act not strictly applicable to probate; Probate and Administration Ordinance (s.31(1)) governs delayed applications. • Administrative law – supervisory powers wide but not limitless; statutory grounds required for revision.
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6 November 1995 |
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Ignorance of procedure and unproven ill health do not justify extension of time to file an appeal.
Civil procedure – extension of time to file reference/memorandum of appeal – Rule 57(1) Court of Appeal Rules – ignorance of law not an excuse – need for evidence of illness – prospects of success in underlying probate matter relevant to grant of extension.
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3 November 1995 |
| October 1995 |
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Vendor's refusal to execute sale documents breached a binding agreement; lack of Commissioner approval did not negate the agreement.
* Land law – disposition of a right of occupancy – effect of Commissioner for Lands' approval under Land Regulations, 1948 (Reg. 3(1)) – inoperative transfer vs existence of binding agreement. * Contract law – breach by vendor for refusing to execute sale documents – equitable defence unavailable where breach causes lack of approval. * Civil procedure – appellate limitation on entertaining unpleaded allegations of fraud.
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27 October 1995 |
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Reported
Civil Practice and Procedure — Revision — When court’s revisional jurisdiction may be invoked - Where appellate process has been blocked by judicial process — Decision of High Court dismissing application for extension of time not such a judicial process
Civil Practice and Procedure - Revision - When application must be brought - Application made 10 months afterjudgment time barred |
27 October 1995 |
(From judgment of the High Court of Tanzania at Dar es Salaam, Mkude, J) ' Contract - Contract of Sale of Land - Agreement reached but vendor refuses to sign it despite benefiting from consideration furnished by purchaser - Effect thereof Land law - Disposition of interest in land - Agreement is made but vendor despite receiving and benefiting from consideration under the agreement, refuses to sign it - Consent to transfer not sought and obtainedfrom the Commissoner for Lands - Whether there was a sale agreement - Rule 3 of the Land Regulation. |
27 October 1995 |
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Reported
Debtor and Creditor - Loan agreement - Debenture to secure such loan - Rectification sought of amount repayable stated thereon - When such rectification competent - Section 85 of the Companies Ordinance, Cap 212.
Law ofLimitations- Fraudulent misrepresentation - Effect on limitation of proceedings - Section 26(a) of the Law of Limitation Act. |
26 October 1995 |
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Proceedings challenging subsidiary legislation were void because the Attorney-General was not summoned as required by statute.
Constitutional procedure – Section 17A(2) L.R. Ordinance (as amended) – Attorney‑General must be summoned as party where constitutionality of subsidiary legislation is raised; failure to summon or direct ex‑parte hearing renders proceedings null and void.
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26 October 1995 |
(From the judgment and decree of the High Court of H Tanzania at Dodoma, Mwalusanya, J) Constitutional interpretation - Parties to proceedings involving interpretation of Constitutional provisions enshrining basic freedom, rights, and duties - Attorney General a necessary party - Section 1 17A(2) of the Law Reform (Fatal Accidents and Miscellaneous |
26 October 1995 |
(From the decision of the High Court of Tanzania at Dar es Salaam, Chua, J) Administrative law - Prerogative orders - Order of Preventive detention made and effected after an accused's acquittal by Court - Whether such detention legal. |
23 October 1995 |
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Reported
Company Law - Winding up - Creditors’ claims against company in liquidation - Proof of debt on affidavit is required for cause of action - Companies (Winding Up) Rules, 1929. |
23 October 1995 |
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Whether detention under administrative Preventive Detention powers after an acquittal unlawfully infringed the appellant’s liberty.
* Criminal procedure – habeas corpus – legality of detention following acquittal – Preventive Detention Act – use of administrative detention after termination of criminal proceedings. * Constitutional law – jurisdictional limits – court should not decide issues not pleaded or properly before it. * Distinction from cases where administrative detention was used to countermand interim court orders while proceedings were pending.
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23 October 1995 |
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Whether post-acquittal detention under the Preventive Detention Act lawfully infringed the applicant’s liberty rights.
• Criminal procedure – Habeas corpus – challenge to detention following acquittal – scope and limits of habeas corpus applications.
• Evidence and procedure – raising new issues in reply affidavits – whether a constitutional challenge may be introduced late in proceedings.
• Constitutional law – Preventive Detention Act – question of constitutionality improperly raised in reply and left undecided for a future appropriate case.
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23 October 1995 |
(From the conviction and sentence of the High Court of Tanzania at Dar es Salaam, Mackanja, J) q Criminal law - Murder- Provocation - When the defence ofprovocation is available. |
23 October 1995 |
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Claims in a liquidation must be proved under the Companies (Winding Up) Rules; unproved claims are premature and not maintainable in court.
* Company law – Winding up – Proof of debts – Claims against liquidator must be proved under Companies (Winding Up) Rules 1929 (affidavit verification). * Employment law – Terminal benefits and repatriation costs – delay due to insolvency not necessarily neglect. * Civil procedure – Prematurity of suit where statutory proof in liquidation has not been complied with. * Liquidator's role – Liquidator entitled to determine validity of claims presented for proof.
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23 October 1995 |
Administrative Law - Political Parties – Registration and Compliance with Constitutional Rights |
20 October 1995 |
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A Registrar’s certificate referring to a different ruling cannot save the applicant’s late appeal; appeal struck out.
Civil procedure – appeal time limits – rule 83(1) certificate – Registrar’s certificate referring to wrong ruling cannot validate an otherwise late appeal – appeal struck out under rule 82.
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13 October 1995 |
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Stay of execution granted where execution would cause irreparable loss despite procedural objection to the notice of appeal.
Court of Appeal – Rule 82 – requires applicant to have been served with notice of appeal; Rule 9(2)(b) – stay of execution – discretionary judicial exercise; irreparable harm and balance of convenience – stay granted; leave to appeal not determinative at stay stage.
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2 October 1995 |
| September 1995 |
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State radio commentary during trial breached the presumption of innocence; acquittal replaced by discharge.
Constitutional law – fair hearing (Art.13(6)(a)) – presumption of innocence (Art.13(6)(b)) – pre-trial/public commentary by state media – prejudice to lay members and public – remedy: discharge versus acquittal.
|
15 September 1995 |
(From the decision of the High Court of Tanzania at Dar es Salaam, Mwaikasu, J) Evidence - Relevance and admissibility - Evidence adduced in support of a charge which is dismissed for want of consent to prosecute - Whether relevant and admissible to support any other charge in the same information - Section 11 of the Evidence Act, 1967. Evidence - Circumstantial evidence - Knowledge presence of drugs - Whether may be inferred from the circumstances obtaining. Criminal law - Unlawful possession of Dangerous drugs - Drugs hidden with the knowledge and approval of a person - Whether the person with knowledge and giving approval is in possession of those drugs. Evidence - Unlawful importation of Dangerous drugs - Drugs imported into Tanzania - Drugs found in expensive and expertly constructed and sealed devices fitted to disguise - Whether knowledge and approval of the owner of the trucks can be inferred. |
12 September 1995 |
| August 1995 |
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Failure to file a memorandum within sixty days deems the notice of appeal withdrawn; appeal struck out.
Civil procedure – Appeal – Requirement under rule 83 to file memorandum of appeal within sixty days of notice of appeal – Failure to comply deemed withdrawal under rule 84 – Impecuniosity does not excuse non‑compliance with procedural time limits.
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31 August 1995 |
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Appeal dismissed: non-compliance with redemption condition and inappropriate late raise of certified point of law.
* Civil procedure – attachment and sale of property – attachment of residential house and sale at auction; * Redemption rights – requirement to refund purchaser in full within court-granted grace period; * Appeals – raising a point of law for the first time in the Court of Appeal; * Finality of execution – challenge to original attachment cannot be introduced in separate proceedings at appeal stage.
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23 August 1995 |
(From the judgment and decree of the High Court of Tanzania at Dar es Salaam, Kyando, J) Land Law - Land Registration - Powers of Registrar of Titles - Whether the Registrar has power to determine issues as to land ownership - Section 105 of the Land Registration Ordinance. |
22 August 1995 |
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Registrar had no jurisdiction under s.105 to determine ownership of registered land; proceedings were null and void.
* Land Registration Ordinance s.105 – scope and limits of Registrar's powers – order to attend and produce documents – confined to questions about register entries or memorials, not substantive ownership of registered land.
* Registered land – ownership disputes – Registrar lacks jurisdiction to determine substantive title outside register-entry issues.
* Procedure – acts done without jurisdiction are null and void; appeals founded on such acts are incompetent.
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22 August 1995 |
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Section 105 does not empower the Registrar to decide ownership of registered land; such investigations are void.
Land registration — Section 105 scope — Registrar of Titles’ powers limited to questions regarding entries in the land register — Registrar lacks jurisdiction to determine substantive ownership disputes of registered land — Proceedings and appeals founded on ultra vires investigations null and void.
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22 August 1995 |
| July 1995 |
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Ex-parte judgment obtained without notice and pre-empting pending stay-to-arbitration application breaches natural justice and must be set aside.
Civil procedure – Ex-parte judgment – Natural justice – Failure to serve or give notice – Interlocutory applications including stay to arbitration – Jurisdictional issue – Urgency certificate misuse.
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31 July 1995 |
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Reported
Evidence - Corroboration - Evidence needing corroboration - In a trial for murder: evidence for the prosecution given by a brother of the deceased - Whether needing corroboration
Criminal Practice and Procedure -Final submissions in criminal trials - Right of reply by the prosecution -Sections 296 and 201 of the Criminal Procedure Act 1985
Criminal Law - Murder - Malice aforethought - Death from injuries inflicted in the course ofa squabble at the end ofa drinking session and in which no lethal weapon is used - Whether malice aforethought is established |
3 July 1995 |
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Reported
Civil Practice and Procedure - Execution - Stay of execution pending appeal - Applicationfor stay ofexecution where there are no prospects of the intended appeal taking off
Civil Practice and Procedure -Execution - Stay of execution pending appeal - Stay of execution sought 8 years after judgment was entered and time to take essential steps to prosecute the appeal has expired -Whether grant of stay of execution fair and just |
3 July 1995 |
Court of Appeal Rules - Notice of Appeal - Time within which to lodge such notice - Notice lodged one day out of time - Whether Court can allow the notice to stand. |
3 July 1995 |
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Refusal to extend time to seek revocation of a grant is not an executory order warranting a stay of execution.
* Probate and Administration – grant of letters of administration – application for extension of time to apply for revocation of grant – substantive revocation application dependent on extension. * Civil Procedure – stay of execution pending appeal – requirement of an executable order; need to show irreparable harm or prima facie success. * Composite applications – effect of deciding only the procedural limb (extension of time) and not the substantive relief.
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3 July 1995 |
| June 1995 |
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Court allowed extension to file a counter-affidavit where counsel's emergency medical trip abroad justified exercising discretion.
Civil procedure — extension of time — discretion to relax procedural rules — prima facie obedience to rules but departure allowed on material grounds; emergency medical treatment abroad may justify extension of time to file pleadings; belated application for extension may be allowed where exceptional circumstances exist.
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23 June 1995 |
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Court refused to vary stay of execution, finding no significant change of circumstances and interest continues to accrue.
Inherent jurisdiction to vary interlocutory orders; stay of execution is interlocutory; Rule 59 and Rule 3 considerations; requirement of significant change of circumstances to vary a stay; stay does not suspend accrual of interest.
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23 June 1995 |
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A short delay in seeking leave to appeal while awaiting the record can be condoned; application to strike out Notice of Appeal dismissed.
Civil procedure – appeal procedure – time limits for applying for leave to appeal (14 days) – requirement to attach trial court decision repealed – condonation of short delay caused by awaiting record and ruling – application to strike out Notice of Appeal dismissed.
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16 June 1995 |
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Whether internal survey fees were payable before obtaining an offer of a Right of Occupancy and entitlement to external survey fees.
Contract — survey agreement — external (boundary) versus internal (detailed) surveys — obligation to procure Right of Occupancy — timing of payment for internal survey; quantum and admissibility of counterclaim where previously struck out; substitute judgment and declaratory relief.
|
8 June 1995 |
Evidence — Confession - Retracted confession - Court accepts such evidence - Court warns itself of the danger of convicting on the basis of the uncorroborated retracted confession - Whether Court □ must give reasons. |
1 June 1995 |
| May 1995 |
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Lack of notice of a summary dismissal does not justify extension of time to file a notice of appeal.
Court of Appeal — Rule 8 (extension of time) — Summarily dismissed appeals under Magistrates' Courts Act (s.28(3)) — absence of notification insufficient for extension — summary dismissal not appealable under Appellate Jurisdiction Act (s.5).
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31 May 1995 |
Magistrates’ Courts - Jurisdiction - Jurisdiction over land held under customary law - Magistrates’ Courts Act 1984. Civil Practice and Procedure - Pleadings - Order of the High Court granting leave for the case to proceed before the Resident Magistrate not pleaded - consequences thereof |
24 May 1995 |
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The applicant with an existing right of appeal cannot seek revision absent exceptional circumstances.
* Civil procedure – Appellate and revisional jurisdiction – mutual exclusivity – availability of revision under s.4(3) AJA where a party has (or had) an appeal right – loss of appeal through applicant’s fault not exceptional.
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24 May 1995 |
Court of Appeal - Revisional Jurisdiction - Revision by the Court of Appeal of Tanzania - When such revision is available - Section 4(3) of the Appellate Jurisdiction Act, 1979. |
24 May 1995 |
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Self-defence existed but excessive force used; conviction reduced from murder to manslaughter with five-year sentence.
Criminal law – self-defence – applicability where accused reasonably fears imminent attack – limitations and excess force – Penal Code sections 18, 18A and 18B(3) – excessive force causing death attracts manslaughter not murder.
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23 May 1995 |
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Self-defence established but force was excessive; conviction reduced from murder to manslaughter and sentence commuted to five years.
* Criminal law – Homicide – Self-defence – Assessment of extra‑judicial statement and sequence of events – When force is reasonable. * Criminal law – Excessive defensive force – Manslaughter under section 18B(3) Penal Code. * Evidence – Appellate review where trial judge relied selectively on parts of statement. * Authorities – Distinction from IPALALA and caution in applying Palmer.
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23 May 1995 |