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Citation
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Judgment date
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| December 1999 |
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Reported
The court declared the appellants' trial null and void and ordered a retrial before another judge.
Criminal appeal — appellate power to declare trial null and void — order for retrial before another judge — remedial jurisdiction of appellate court.
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13 December 1999 |
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Court refused to strike out an appeal for an advocate's procedural failings and dismissed the application with costs.
Civil procedure – application to strike out notice of appeal – competence of appeal – procedural defaults by advocate – withdrawal of counsel – fairness to litigant – court grants time for fresh representation; strike-out dismissed with costs.
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10 December 1999 |
| November 1999 |
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(From the decision ofthe High Court of Tanzania at Dar es Salaam, Mwaikasu, J., dated 18 May 1995, in Civil Case No. 128 of 1993) Civil Practice and Procedure - Civil Procedure Code 1966 - Rule 6(l)(a) of jj Order IX —Whether the modification in . Number 376 of 1968 applies where the Attorney General is one of several defendants. Civil Practice and Procedure — Rule 6(1) of Order IX of Civil Procedure Code 1966 — Whether the words "when the suit is called for hearing" refer to an adjourned date of hearing. Civil Practice and Procedure — Order IX, rule 6 ofthe Civil Procedure Code 1966 - Whether it applies only when the suit is called for hearing on the first occasion Order XVII, rule 2.Civil Practice and Procedure - Order for compensation - Whether correct to use the dollar to calculate judicial compensation for the purpose of- Setting devaluation.Judgment - Basis of judgment — Whether extraneous information may be acted upon. |
26 November 1999 |
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A stay of execution cannot be granted once the decree has been executed by seizure/attachment of the respondent’s property.
* Civil procedure – Stay of execution – An order for stay presupposes that a decree has not been executed – Where execution has proceeded to attachment/seizure of property a stay will be inappropriate. * Execution – Attachment of movable property – Proper execution and warrant of attachment precludes later grant of stay once seizure effected.
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12 November 1999 |
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Stay of execution pending appeal granted because High Court ordered reconsideration, not immediate repossession, so applicants not in default.
Administrative law – prerogative orders (certiorari and mandamus) – self‑executing nature – execution against government subject to special procedures; stay of execution pending appeal – whether applicant in default of order – direction to revisit administrative decision and fair conduct required.
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12 November 1999 |
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A notice of motion lacking citation of the enabling provision renders the applicant's application incompetent and struck out.
Civil procedure — Notice of motion — Rule 45/Form A — requirement to cite enabling provision — non‑citation renders application incompetent; preliminary objections; stay of execution; applicant's conduct (tenant vacated and premises re-let) affects merits.
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10 November 1999 |
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Leave to appeal and stay granted on important company law issues; affidavit objections largely dismissed.
* Company law — whether High Court orders on meeting chairmanship contravene s.112(3) Companies Ordinance; * Company law — liability of non‑directors for costs and fines without proof of knowledge; * Civil procedure — striking out argumentative affidavit paragraphs and court-ordered deletion; * Civil procedure — sufficiency of single applicant’s affidavit for multiple applicants represented by one advocate; * Appeal — grant of leave where matters raise important questions; * Stay of execution — granted to prevent appeal becoming nugatory.
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10 November 1999 |
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Court struck out respondents' March 1998 notices of appeal as out of time, holding the High Court ruling was pronounced earlier.
* Civil procedure – appeal time‑limits – when judgment is pronounced; effect of re‑reading a prior ruling on appeal time.
* Affidavit practice – facts must be deponed; argumentative passages and prayers not necessarily fatal if severable.
* Oaths and affirmations – non‑Christian witnesses may be permitted to affirm but may also elect to swear an oath.
* Order XX R.1/R.2 – judgment pronouncement requirements and consequences for filing timely notices of appeal.
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2 November 1999 |
| October 1999 |
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Civil Practice and Procedure - Stay of Execution — Application to the Court of Appeal for stay of execution of a High Court decision where no Notice to Appeal against it is lodged - Whether the application is competent - rule 9(2)(b) of the Tanzania Court of Appeal Rules 1979. |
29 October 1999 |
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Repeated attempts to obtain costs and interest denied; extension refused as time‑barred and abusive.
Civil procedure – costs – silence in judgment does not imply an award of costs; costs must be claimed and expressly granted. Extension of time – refusal where delay is self‑caused and applications amount to abuse of process. Appellate jurisdiction – correction/variation inappropriate where issue (interest on decretal sum) is a separate matter for the trial court.
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29 October 1999 |
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Reported
Application for extension to vary judgment to award costs and additional interest dismissed as time‑barred and an abuse of process.
Civil procedure — correction/variation of judgment — extension of time to apply for correction — costs — silence in judgment does not imply costs awarded — abuse of court process; Appellate Jurisdiction Act s.2(3)&(5); decretal interest — separate remedy to be pursued in trial court.
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29 October 1999 |
Civil Practice and Procedure — Extension of time — Application for extension of time to apply for correction or variation of Judgment — Application filed more than a year after the applicant is made aware of the need for it - The delay is inordinate. Civil Practice and Procedure - Judgment - Correction of errors in a judgment jj - High Court omits to award interest on a decretal amount — Whether that is an error which the Court of Appeal may correct under section 2(3) of the Appellate Jurisdiction Act |
29 October 1999 |
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Ex parte interim injunction set aside for failure to justify dispensing with mandatory notice and for being unduly wide.
Civil procedure — Injunctions — Order 37 r.4 (Civil Procedure Code) — Notice of application mandatory except where giving notice would cause undue delay — Burden on applicant to justify dispensing with notice — Ex parte injunction improperly granted where affidavit fails to show reasons — Overbroad injunctions may unlawfully affect civil and political rights.
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11 October 1999 |
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Reported
An ex-parte interim injunction granted without mandatory notice under Order 37 r.4 and without proving good cause is invalid.
Civil procedure — Injunctions — Order 37 r.4 (Civil Procedure Code) — Mandatory notice requirement before granting injunction — Exception requires applicant to prove good cause to dispense with notice — Ex-parte injunction improperly granted where no application or grounds to dispense with notice — Injunction must be appropriately confined and not unduly vague to avoid impinging constitutional/civil rights.
|
11 October 1999 |
(From the decision ofthe High Court of Tanzania, Bubeshi, J., dated 14 May 1999) Civil Practice and Procedure - Interim injunction - When it can be granted without serving notice on the respondent - Order 37, rule 4 ofthe Civil Procedure Code 1966. Civil Practice and Procedure — Interim injunction — Reasons to be disclosed for requesting the court to dispense with service of notice — Order 37 rule 4 of the Civil Procedure Code 1966. |
11 October 1999 |
Application for stay of execution ofthe decision ofthe High Court of Tanzania, at Songea, Mwipopo, J., dated 26 June 1999, in Misc. Civil Application No. of 1999) Civil Practice and Procedure - Stay of Execution - Application for stay of execution — Stay of execution sought where there is no court order granting to the respondent any right to execute or to do anything affecting the rights or interests ofthe applicant - Whether the application is competent. |
8 October 1999 |
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Reported
A stay will not lie where the impugned High Court order creates no enforceable right or action to be stayed.
Administrative law; service of appeal documents on a senior officer constitutes valid service; stay of execution—must relate to an order granting rights or directing action; an order that only sets aside another court's injunction may not be the subject of a stay.
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8 October 1999 |
| September 1999 |
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A primary tortfeasor cannot be struck out and substituted with a corporate office-holder where his joinder is necessary.
Civil procedure — Order 1 Rule 10(2) CPC — striking out or substituting parties; Order 1 Rule 3 — joinder of defendants for same act/transaction; tort — primary tortfeasor liability vs vicarious liability; corporate office-holder not a separate legal person — not a proper substitute.
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10 September 1999 |
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Wakf held not absolute; respondent awarded two-thirds and applicant one-third of house, effected by room allocation, costs each party.
* Property law – wakf – whether an intended wakf was absolute or subject to inheritance; * Succession/inheritance – apportionment of a deceased co-owner’s share between heirs; * Practical partition – effecting fractional shares by allotment of rooms and outbuildings; * Court of Appeal clarification under procedural rule on implementation of judgment.
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7 September 1999 |
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Reported
High Court’s finding of timely filing of defence set aside after primary filing receipt was found to be forged; matter remitted for default-order.
Civil procedure — Default judgment — Filing of written statement of defence — Alleged filing supported by exchequer receipt found forged — Court condemnation of counsel misconduct — Ruling set aside and matter remitted to High Court to proceed under Order 8 Rule (Civil Procedure Code).
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7 September 1999 |
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Failure to file a defence, a forged filing receipt and counsel’s misconduct warranted setting aside the High Court ruling and remitting the matter.
Civil procedure – Default judgment – Failure to file written statement of defence – Forged exchequer receipt purporting to show filing – Counsel misconduct and misleading the court – High Court’s finding set aside – Matter remitted for Order 8 directions.
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7 September 1999 |
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Reported
Registry — Misconduct — Exchequer receipt issuedfraudulentlly -Exchequer receipt with a forged date.
Advocates — Misconduct committed on instructions of advocate -Advocate’s misconduct- Advocate’s deceit calculated to mislead court to make a wrong finding of fact is an attempt to pervert the course of justice. |
7 September 1999 |
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Reported
Tribalist campaign statements by a candidate or agents, proved with knowledge and consent, void the election under s.108(2)(a).
Elections Act s.108(2)(a) – tribalist statements by candidate or agents with knowledge/consent – proof required; burden of proof in election petitions – grave allegations require strict and corroborated proof; appellate review of credibility – when to disturb trial findings; distinction between s.108(2)(a) (qualitative nullification) and s.108(2)(b) (effect on result).
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6 September 1999 |
| August 1999 |
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Primary Courts lack jurisdiction over land held on right of occupancy; proceedings are nullities without High Court leave.
Jurisdiction — Primary Courts — Limits on jurisdiction over land registered under the Land Registration Ordinance or held on Government lease/right of occupancy — Magistrates' Courts Act ss.18 & 63 — Proceedings in wrong forum nullity absent High Court leave.
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31 August 1999 |
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Application to review Court of Appeal judgment refused: no manifest error or such prejudice from denial of counsel change to justify retrial.
Inherent jurisdiction — review of Court of Appeal judgment — limited grounds for review (manifest error apparent on face of record; fraud; party condemned unheard) — allegation of deprivation of counsel of choice in trial court — not every adverse remark or prejudice finding requires nullification or retrial.
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27 August 1999 |
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Application for stay pending appeal dismissed: no prospects of success and no good cause shown for delay, with costs.
Civil procedure – Stay of execution pending appeal – Requirement that intended appeal have prospects of success – Delay in seeking leave to appeal out of time – Good cause for delay – Irreparable harm requirement for stay.
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20 August 1999 |
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Whether a verbal death threat amounts to provocation or lawful self-defence—court held it did not; appeal dismissed.
* Criminal law – Murder – Provocation – Whether verbal threats by the deceased can found provocation depriving accused of self-control. * Criminal law – Self-defence – Pre-emptive killing in response to a threat does not constitute lawful self-defence. * Evidence – Extra-judicial/confessional statements – admissibility and weight in supporting conviction.
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19 August 1999 |
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Reported
Preliminary objection to appeal for defective service and alleged missing petition dismissed; appeal ordered to proceed to hearing.
* Civil procedure – Appeals – Service of notice, memorandum and record of appeal – Validity of service on an advocate at an address provided for service (Rule 77) – Non-compliance with Rule 90 not necessarily fatal where record contains documents required by Rule 89.
* Civil procedure – Records of appeal – Alleged omission of original petition – distinction between missing documents listed in Rule 89 and other defects.
* Advocacy – Right of a client to dismiss and engage counsel – client’s unconditional right and prejudice if denied.
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13 August 1999 |
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Reported
Elections - Votes ofregistered voters who did not vote - Pro-rata apportionment of
Elections — Free andfair elections — Chaos during elections -Whether elections can be said to be free and Fair.
Elections - Nullification of- Racist statements - Whether sufficient to nullify elections - Section 108(2)(a) Elections Act 1985. |
13 August 1999 |
| July 1999 |
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Reported
Civil Practice and Procedure - Execution - Stay of execution of High Court order — Power ofCourt ofAppeal — Rule 9(2)(b) of the Court of Appeal Rules 1979
Civil Practice and Procedure - Jurisdiction — Jurisdiction of the court- Whether parties may, by agreement, conferjurisdiction on a court.
Civil Practice and Procedure - Discretion - Exercise of discretion-Principles underlying exercise ofsuch discretion - Order XLII, rule 2, sections 68(e) and 95 ofthe Civil Procedure Code 1966 and section 2(2) of the Judicature and Application of Laws Ordinance.
Civil Practice and Procedure - Orders - Preservatory measures -Whether may be made in the absence of a suit.
Civil Practice and Procedure - Balance ofconvenience - Guiding principles.
Civil Practice and Procedure - Preservatory measures - Whether judgment for monetary payments is a preservatory measure. |
8 July 1999 |
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Reported
Court granted stay pending appeal, holding the High Court prima facie lacked jurisdiction to order interim monetary payments.
• Civil procedure — jurisdiction to grant interim monetary relief absent a suit — Order XLII r.1-2, s.68(e), s.95 Civil Procedure Code examined.
• Judicature and Application of Laws Ordinance s.2(2) — scope of applying common law where Code is silent; parties cannot confer jurisdiction.
• Stay of execution — factors: prima facie prospects of success, risk of irreparable injury, balance of convenience.
• Arbitration — interaction between arbitration agreement and concurrent court reliefs.
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8 July 1999 |
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Reported
Criminal Practice and Procedure — Conviction - Conviction on a plea of guilty - Appellant convicted on own plea of guilty of manslaughter while the facts narrated revealed accidental killing - Whether the appellant was properly convicted.
Criminal Practice and Procedure - Sentencing - Sentence for manslaughter. Appellant sentenced to seven years ’ imprisonment -Whether the sentence is proper. |
5 July 1999 |
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Applicant’s delay in seeking leave to appeal was inexcusable; time runs from notification of the ruling, not its signing.
Appeals — leave to appeal out of time — computation of time from date ruling brought to parties' attention — requirement to annex High Court order — rule 46(3) applies to Court of Appeal applications only — misapprehension of law not sufficient cause for delay.
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1 July 1999 |
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Reported
Waiver of service granted where deceased respondent had no appointed representative and nobody to be served.
Court of Appeal — Service of record and memorandum of appeal — Deceased respondent without appointed administrator — Whether to enlarge time to serve or waive service — Rule 77(1) and rule 3(2) — No locus to accept service where no party appointed.
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1 July 1999 |
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Court waives service of appeal records where deceased respondent has no appointed legal representative and took no part below.
* Civil procedure – service of record of appeal – deceased respondent with no appointed administrator – extension of time cannot be granted where no one to serve. * Civil procedure – waiver of service – Court may waive service where no person on respondent’s side took part in lower court proceedings. * Representation – appearance by advocate without an appointed client does not substitute for legally appointed representative.
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1 July 1999 |
| June 1999 |
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Defamatory imputations of criminality at campaign rallies can vitiate an election; corrupt‑practice findings require proof of the triggering event.
Election law — proof of alleged campaign meetings and linked corrupt practices; defamation in political campaigns — imputations of criminal conduct, wide publication and effect on free and fair elections; Rule 6 Election (Election Petition) Rules — court's power to consider unpleaded or time‑barred matters where evidence is before the court; evidentiary contradictions and standard of proof in election petitions.
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28 June 1999 |
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Reported
Defamatory and tribal campaigning upheld as grounds to void election; corrupt-practice finding tied to an unproven meeting set aside.
Elections — Election petitions — Proof and credibility of campaign events; corrupt practices — dependency on proven facts; defamation in political campaigns — imputations of criminality and presumption of electoral prejudice; wide publication; Rule 6 Election Rules — court’s power to deal with unpleaded matters and tribalism in public interest.
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28 June 1999 |
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Lack of statutory consent under land regulations does not make a sale void but renders it unenforceable to the extent prejudicial to the paramount landlord.
Land law – disposition of rights of occupancy – regulation 3 (Land Regulations 1948/1960) – meaning of "shall not be operative" – effect of lack of statutory consent – Law of Contract Ordinance 1960 alters previous authorities – valid but inoperative/unenforceable contracts to the extent prejudicial to paramount landlord – remedies where party has performed; refusal of consent renders contract unenforceable.
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18 June 1999 |
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Reported
Whether lack of statutory consent for disposition of a right of occupancy renders the contract void or merely unenforceable.
Land law – Dispositions of rights of occupancy – Regulation 3 (1948/1960) – Meaning of "shall not be operative" – Contracts valid but unenforceable to protect paramount landlord – Sanctity of contract preserved by Law of Contract Ordinance s.2(2) – NITIN overruled to that extent.
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18 June 1999 |
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Reported
Court of Appeal - Full bench — An ordinary Court referring a matter of law for decision of the same Court sitting as full bench of five justices - Basis therefore.
Contract - Sanctity of contract - English principle of sanctity of contract not excluded in the Law of Contract Ordinance Chapter 433 - Part of the law of contract of this country.
Contract law - Interpretation of expression “shall not be operative” under the Land Regulations 1948 and 1960 - Section 2(2) of the Law of Contract Ordinance Chapter 433.
Land law - Land Regulations, 1948 and 1960 — Interpretation of expression “shall not be operative" under the Land Regulations 1948 and 1960 — Section 2(2) of the Law of Contract Ordinance Chapter 433.
Statute - Interpretation of statute - Meaning of the expression “shall not be operative” - Land Regulations 1948 and 1968 and section 2(2) of the Law of Contract Ordinance Chapter 433.
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18 June 1999 |
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Employee failed to prove entitlement to subsistence/repatriation allowance; entitlement limited to employees brought into place of work.
Employment law – subsistence allowance and repatriation expenses – entitlement limited to employees brought into place of employment by employer – proof on balance of probabilities required – costs in Employment Ordinance proceedings (s.143) not generally awardable.
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18 June 1999 |
| May 1999 |
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Notice of motion struck out because it was filed by an unqualified advocate, improperly signed, and raised matter already decided by the Full Court.
Advocates’ Ordinance ss 39 & 41 – advocate’s practising certificate; Competency of proceedings – unqualified person instituting proceedings; Civil Procedure – signature requirements for motions (Form A/Rule) – applicant v. advocate signatures; Res judicata / finality – Full Court decision binding on single judge; Remedy for new material – review of Full Court decision; Application under Rule 83(1) – certificate of exemption challenged.
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21 May 1999 |
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A motion filed by an unqualified advocate was incompetent and struck out; prior full Court decision must be challenged by review.
* Advocates' Ordinance s.39(1) – Acting as advocate without practising certificate – procedural incompetence of proceedings.
* Civil procedure – validity of Notice of Motion and affidavit – proper signing and formal requirements.
* Res judicata / finality – application seeking to revisit full Court decision – proper remedy is review, not single-judge reversal.
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21 May 1999 |
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Misjoinder causing dismissal is an "other cause of a like nature" under s.21(3)(c), so prior proceedings' time is excluded for limitation.
Limitation of actions – Law of Limitation Act 1971 s.21(1) and s.21(3)(c) – exclusion of time while prior proceedings were prosecuted where dismissal was for misjoinder (defect of jurisdiction) – fresh suit within s.67(b) Tanzania Harbours Authority Act 1977.
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7 May 1999 |
| April 1999 |
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Appeal dismissed: reliable eyewitness identification upheld and conviction and statutory minimum sentence affirmed.
Criminal law – robbery with violence – identification evidence – reliability and opportunity to observe – conviction upheld; appeal summarily dismissed under s.4(4) Appellate Jurisdiction Act.
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23 April 1999 |
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A supplementary record cannot cure an appeal rendered incompetent by a fundamental omission; counsel’s negligence is no sufficient cause.
Civil procedure – extension of time – incomplete record of appeal – omission of copy of decree – supplementary record – whether supplementary record can cure an incompetent appeal – counsel’s negligence and sufficient cause for extension of time – Rule 9(1) and (3).
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13 April 1999 |
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Leave to appeal refused where applicant was absent without good cause and no arguable legal issue arose.
Civil procedure – application for leave to appeal – refusal of leave by High Court – ex parte judgment entered after defendant’s unexplained absence – adjournment request insufficient to excuse non-appearance – audi alteram partem waived by absence – no arguable point of law or mixed fact for appeal.
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9 April 1999 |
| March 1999 |
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Dismissal for alleged abscondment was wrongful because the employer failed to follow its mandatory disciplinary procedures and time limits.
* Employment law – wrongful dismissal – employer must follow its own disciplinary code and mandatory time limits before dismissing for abscondment.
* Disciplinary procedure – Clause 5.8(xx) (abscondment) and Clause 6.0 (procedure and time limits) – mandatory compliance required.
* Natural justice/procedure – failure to follow prescribed procedure renders dismissal wrongful.
* Communications via branch office – issue whether receipt at Area Office equals receipt at Head Office (not determinative where procedural non‑compliance occurs).
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24 March 1999 |
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Primary court proceedings in a representative suit without court permission or disclosure of represented members are nullities.
Representative actions – unincorporated association – necessity of prior court permission; mandatory disclosure of identities and addresses of persons represented; failure to notify or obtain permission renders proceedings a nullity; appellate review of preliminary objections not argued below.
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15 March 1999 |
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Reported
Validity of Court of Appeal's revisional powers and procedural errors in appointing provisional liquidators.
Constitutional Law – Court of Appeal powers – Revisional jurisdiction and legislative powers. Company Law – Provisional liquidators – Procedural requirements in winding up proceedings. |
12 March 1999 |