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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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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 |
| 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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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 |
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An appellant’s written request for the record within 30 days suffices for Rule 83(1); a strike‑out motion was premature and dismissed.
Court Rules — Appeal procedure — Rule 83(1) proviso — written application for copy of proceedings within 30 days entitles appellant to exclusion of time; Registrar’s receipt date not determinative — strike‑out under Rule 82 premature where appellant complied with Rule 83(1).
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25 September 2003 |
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An application for stay is incompetent if not accompanied by the judgment, ruling or order sought to be stayed.
Civil procedure – Stay of execution – Competency of application lacking attachment of the order sought to be stayed; Execution by garnishee – whether stay is possible; Adjournment/indulgence where record is before appellate court.
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18 September 2003 |
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Reported
Leave to appeal refused because the applicant lacked title and could not obtain the injunction sought.
Land law – sale agreement – transfer contingent on consent of Commissioner for Lands; revocation of vendor's title; temporary injunction requires possibility of eventual permanent relief; futility of leave to appeal where substantive relief cannot succeed; leave to appeal under s.5(1)(c) Appellate Jurisdiction Act.
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10 September 2003 |
| July 2003 |
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Court upheld transfer of vehicle to appellant, estopped respondent from claiming arrears; specific damages require strict documentary proof.
Sale of goods – pro-forma invoices and validity periods – payment receipts and registration card – estoppel by conduct; Ownership dispute where third-party loan exists – stranger cannot rely on loan to assert title; Damages claims – strict proof required for specific loss and travel/accommodation expenses.
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29 July 2003 |
| June 2003 |
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Guarantor who admitted signing guarantee and mortgage held liable after borrower’s default; judgment for bank with costs.
Banking law – personal guarantee and mortgage as security – admissible documentary evidence (guarantee, mortgage, demand notice) – guarantor’s admission – effect of unfulfilled private promise on guarantor’s liability – guarantor liable absent duress or vitiating circumstances.
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16 June 2003 |
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Court allowed appeal and set aside High Court’s finding that select retrenchments were wrongful, upholding overall lawfulness.
Labour law – retrenchment/redundancy – lawfulness of termination; Consistency of judgments and appellate authority; Consultation under Security of Employment Act s.6(1)(g); FILO principle not determinative where not relied upon by trial court.
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13 June 2003 |
| May 2003 |
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Applicant failed to prove discovery to evade limitation; application for prerogative orders was time-barred.
Limitation — prerogative orders (certiorari & mandamus) — accrual under s.26(b) (discovery) — necessity to prove discovery on balance of probabilities — effect of counter‑affidavit and failure to reply — limitation as jurisdictional issue.
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15 May 2003 |
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Revisional jurisdiction cannot replace an appeal absent exceptional reasons; applicant's urgency was insufficient.
* Appellate procedure – Revisional jurisdiction under s.4(3) AJA – Not an alternative to appeal where right of appeal exists; exceptional circumstances required to invoke revision.* Procedural law – Preliminary objection – Application misconceived and incompetent where appeal remedy available and not pursued.* Execution – Challenge to sale order and claimed interest – insufficiency of urgency alone to justify revision.
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8 May 2003 |
| April 2003 |
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An unopposed written withdrawal by counsel justified striking out a Notice of Appeal under Rule 82; costs awarded.
* Civil Procedure – Striking out Notice of Appeal – Rule 82 Court of Appeal Rules – Written withdrawal by counsel to Registrar – Unopposed application – Costs awarded.
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30 April 2003 |
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Reported
The court dismissed the applicant’s review, holding forensic nondisclosure and additional evidence did not show a manifest error.
Criminal law – review of appellate judgment; inherent jurisdiction to review; error apparent on face of record; nondisclosure of forensic report; admissibility and impact of post-trial forensic evidence on cause of death; standards for invoking review vs. appeal.
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29 April 2003 |
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Reported
Applicant's review alleging mis-evaluation and non-disclosure of forensic evidence dismissed; no manifest error or miscarriage of justice found.
Review — inherent jurisdiction to correct manifest error on face of record; Criminal law — evaluation of additional forensic evidence on appeal; Non-disclosure of evidence — when material irregularity or adverse inference is warranted; Cause of death — weighing chemist's report against post-mortem; Sufficiency of consideration of alternative suspects. |
29 April 2003 |
Criminal Practice and Procedure - Review - Exercise of Review Powers by the Court of Appeal — Circumstances under which the powers may be invoked. |
29 April 2003 |
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Leave to appeal granted where prosecution for trespass was questionable amid competing claims to land ownership.
Criminal law – trespass – initiation of criminal proceedings where ownership of land is disputed – reasonable and probable cause to prosecute – remedy by civil action to establish title – malicious prosecution/false imprisonment considerations; Leave to appeal.
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29 April 2003 |
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Reported
High Court misapplied Court Rules; applicant ordered to file missing decision and extracted order within 14 days for hearing.
Court Rules – Rule 43(a) (application for leave to the High Court) does not require annexing High Court judgment or extracted order; Rule 46(3)/Rule 43(b) apply to applications to the Court of Appeal; misdirection by High Court declaring application incompetent; procedural cure by ordering filing of decision and extracted order within 14 days. |
25 April 2003 |
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Stay granted of Tribunal decree pending appeal due to arguable jurisdictional and procedural defects and balance of convenience favoring the applicant.
Civil procedure – counter‑affidavits – fresh counter‑affidavits filed after striking out earlier affidavit; Court Rules 47, 18 and 53 – applicability. Jurisdiction – LART Tribunal’s exclusive jurisdiction under s.19 of the Act – whether dispute falls within non‑performing asset matters. Evidence and procedure – reliance on written submissions/affidavits for factual findings and awards of damages; potential failure to plead or prove damages. Interim relief – stay of execution pending appeal – prospects of success and balance of convenience.
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25 April 2003 |
Civil Practice and Procedure — Appeals — Leave to appeal to the Court of Appeal— Application for leave to appeal - Formal application for leave to appeal made to the High Court- Whether it is necessary to attach copy of judgment and decree of the High Court against which it is intended to appeal - Rule 43(a) of the Court of Appeal Rules 1979. |
25 April 2003 |
| March 2003 |
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Order 21 Rule 62 CPC makes objection/attachment (garnishee) orders conclusive unless a suit is instituted; no appeal lies to the Court of Appeal.
Civil Procedure – Attachment/garnishee proceedings – Order 21 Rules 57–62 CPC (Tanzania) – Rule 62 renders orders conclusive after investigation unless a suit is instituted – no right of appeal to Court of Appeal against Rule 62 orders – personal costs against counsel require proof and opportunity to be heard.
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20 March 2003 |
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Reported
Conviction for declaring Jesus not divine quashed for failure to prove intent to wound religious feelings.
Criminal law – s.129 Penal Code (uttering words with intent to wound religious feelings) – mens rea requirement; Constitutional freedom of religion (Article 19) and its limits; right to be heard and revisional jurisdiction (s.373 Criminal Procedure Act); inadequacy of trial judgment (s.312). |
14 March 2003 |
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A review application must be brought promptly; an unexplained three‑year delay warrants striking it out.
Review of judgment – inherent jurisdiction of the Court – no express time limit in Rules but applications must be brought with diligence and within a reasonable time – long unexplained delay (37 months) is grossly inordinate and justifies striking out – preliminary objection challenging substantive basis of review invites merits inquiry and is inappropriate.
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13 March 2003 |
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Stay of execution granted because appeal raises prima facie arguable issue on defamation despite unproven claimed public loss.
Stay of execution pending appeal; relevance of respondent’s ability to refund decretal amount; balance of convenience and public interest—need for particulars; prospects of success on appeal assessed from record; defamation—effect of institutional categorisation and published prospectus.
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7 March 2003 |
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Uncorroborated co-accused testimony and weak circumstantial evidence rendered the conviction unsafe; appeal allowed.
Criminal law – circumstantial evidence – must prove facts yielding an inference of guilt beyond reasonable doubt; Co-accused testimony – inherently suspect, requires warning and corroboration; Doctrine of recent possession – items relied upon must correspond to items charged; Suspicion is insufficient to sustain conviction.
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5 March 2003 |
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An application to stay execution must be supported by the decree or extracted order; court allowed time to supply it.
Civil procedure – stay of execution – requirement that a copy of the decree or extracted order accompany the notice of motion; copy of proceedings insufficient; court discretion to allow supplementary record under Rule 3(2)(a).
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5 March 2003 |
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A revision application to the High Court against a magistrates' court decision must be brought within 60 days; otherwise it is time-barred.
* Civil procedure – Revision of magistrates' court decisions – Limitation – Paragraph 21, First Schedule, Limitation Act 1971 applies – Sixty-day time limit for bringing revision applications – Failure to seek extension renders application incompetent.
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4 March 2003 |
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A revision application under s.11(1)(b) must be filed within 60 days; otherwise it is time-barred and incompetent.
Magistrates' Courts Act s.11(1)(b) – Revision – Limitation: Law of Limitation Act 1971 (s.3 & First Schedule para.21) applies – revision to District Court decisions must be brought within 60 days; failure warrants incompetence and dismissal.
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4 March 2003 |
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An appeal was struck out as time‑barred where proceedings had been paid for earlier and no explanation for delay was given.
Appeal procedure – Limitation – Appeal filed outside prescribed period; Registrar's certificate/notification cannot cure delay where proceedings were already paid for; preliminary objection on time‑bar upheld; appeal struck out.
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4 March 2003 |