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Citation
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Judgment date
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| December 2004 |
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A notice of appeal against the decree is essential before the Court of Appeal can grant a stay of execution.
Civil procedure – Stay of execution; requirement of notice of appeal against the decree (Rule 9(2) and Rule 76); time limitation for stay applications (60-day guideline); interlocutory nature of stay; remedy after refusal of extension—fresh application to Court of Appeal.
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31 December 2004 |
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Failure to indicate tenth lines and omission of non‑relevant documents do not render an appeal incompetent.
* Civil procedure – Court of Appeal Rules – Rule 10(5): requirement to indicate every tenth line on each page of the record – non‑compliance inconvenient but not fatal.
* Civil procedure – Court of Appeal Rules – Rule 89(1)(f): inclusion of affidavits and documents in record – proviso allows omission of documents not relevant to matters in controversy.
* Civil procedure – Preliminary objections – when omissions in the record constitute grounds for preliminary objection versus matters to be raised in defence to grounds of appeal.
* Civil procedure – Rectification – defects in the record of appeal are curable by filing a fresh or supplementary record in accordance with the Rules.
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16 December 2004 |
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Application for injunctive relief struck out for failure to serve notice and non-compliance with Court Rules.
Court of Appeal – civil procedure – competence of application – service of notice of motion – compliance with Rule 52(a) – striking out under Rule 3(2)(a) – costs.
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10 December 2004 |
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Whether an excessive instruction fee for an appeal on a preliminary objection is reasonable under Court of Appeal taxing rules.
Costs — Taxation of bill of costs — Instruction fees — Reasonableness under Rule 118 and Third Schedule paras 9(1)–9(2) — Appeal confined to preliminary objection — Taxing officer’s discretionary assessment.
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2 December 2004 |
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Review applications to the Court of Appeal must be filed within 60 days; otherwise they are struck out.
* Civil procedure — Review — Limitation period for applications to the Court of Appeal — Court fixed sixty (60) days from date of judgment for review applications; * Civil procedure — Law of Limitation Act inapplicable to Court of Appeal review — case law governs; * Civil procedure — Delay and special circumstances — party seeking to excuse delay must apply for enlargement of time and plead special circumstances; * Procedure — When Court raises limitation issue, it may strike out time‑barred application and refuse costs.
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1 December 2004 |
| November 2004 |
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Reported
Court reduced speculative fatal-accident award for lack of evidence and ordered formal apportionment by the trial judge.
* Fatal accidents – assessment of damages – must estimate deceased's lost earnings, deduct personal expenses, determine dependants' annual benefit and apply multiplier (Davies v. Powell Duffryn; Taylor v. O'Connor). * Evidence – pleaded income disputed must be proved; speculative project valuations/investments insufficient. * Apportionment – division among dependants is an essential part of judgment and must be recorded. * Appellate relief – court may vary quantum but should not substitute calculation where evidence is inadequate; may remit or accept parties' offer.
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17 November 2004 |
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Omission of village in the information was not a manifest error; review application dismissed.
Criminal law; review of Court of Appeal decision; manifest error on face of record; omission of location in charge; identity established by admissions and witness evidence; inherent power to review.
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17 November 2004 |
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Notice of appeal valid when lodged; later agent-termination letter and rejected supplementary record could not justify striking out stay application.
Court of Appeal — strike-out of stay application — validity of notice of appeal determined by date of lodgment — inadmissibility of relying on rejected supplementary record — requirement to give reasons when upholding procedural objections — distinction between stay of execution and prohibition proceedings.
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17 November 2004 |
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Employees terminated and ordered reinstated were not entitled to arrears for the absence period; compensation under s.40A(5) governs entitlement.
Employment law — Security of Employment Act s.40A(4) and (5) — reinstatement orders — entitlement to arrears of wages for period of absence — employer's option to pay statutory compensation after 14 days — effect of pending judicial proceedings; functus officio — variation of court orders without review; non-statutory allowances and entitlement.
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17 November 2004 |
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Reported
A reference under Rule 57(1)(b) is informal; adding or withdrawing respondents by letter is permissible, and a stay requires notice, not leave.
* Court of Appeal procedure – Rule 57(1)(b) – informal written references to Registrar – different from formal applications under Rules 45/46.
* Civil procedure – amendment of parties – Rule 47 inapplicable to Rule 57 references; adding respondent to a reference does not require prior leave under Rule 47.
* Civil procedure – withdrawal of reference – letter to Registrar acceptable; Registrar may record withdrawal under Rule 3(2)(a).
* Stay of execution – Rule 9(2) – notice of appeal is prerequisite for stay, not leave to appeal; stay to be decided on merits.
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12 November 2004 |
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Reported
Civil Practice and Procedure - Reference - Application for reference — Amendment of the letter applying for reference - Whether it is necessary to obtain leave of the court before making the amendment - Rule 47(1) and (2) of the Tanzania Court of Appeal Rules 1979.
Civil Practice and Procedure - Stay of execution - Whether leave to appeal is a e condition precedent for grant of stay of execution — Rule 9(2 (b) of the Court of Appeal Rules 1979. |
12 November 2004 |
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Leave to appeal granted where respondent failed to serve submissions, resulting in the applicant being condemned unheard.
Civil procedure — Leave to appeal — Ex parte rulings — Failure to serve written submissions — Condemned unheard — Admission by silence — Relevance of locus standi in leave applications.
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12 November 2004 |
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A preliminary objection cannot dispose of allegations of breach of a stay where facts and judicial discretion must be ascertained.
Civil procedure – Preliminary objection/demurrer – cannot succeed where facts must be ascertained or judicial discretion exercised; Civil contempt/committal – alleged breach of stay of execution by payment of decretal sum; Parties sued by office or title – identifiable officers may be proper parties and entitled to be heard.
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12 November 2004 |
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Non‑service of required copies does not mean the Court was improperly moved; balance of convenience justified a stay.
* Civil procedure – Reference and stay of execution – relevance of balance of convenience when granting stays pending appeal.
* Court of Appeal Rules (Rule 51(2), Rule 52(1), Rule 57(1)) – service of extra copies and effect of non‑compliance on validity of moving the Court.
* Practice note – service requirements breach does not render reference improperly moved.
* Precedent – balance of convenience applied in stay applications (see Stanbic Bank v. Woods).
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12 November 2004 |
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Defilement conviction upheld; DPP consent unnecessary and improperly admitted complainant’s statement was harmless.
* Criminal law – Defilement (section 136(1) Penal Code) – DPP consent not required where charge is defilement of a girl under 14, even if facts involve a step-child. * Evidence – Admissibility of absent complainant’s statement – statement improperly admitted under section 34 Evidence Act. * Sufficiency of evidence – conviction upheld on the basis of appellant’s cautioned statement, eyewitness identification, and medical evidence.
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5 November 2004 |
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Reported
Limitation of Time - Court Vacation - Application filed 3 days beyond the limitation period but during a time when the court is on vacation - Whether the application is time barred. |
4 November 2004 |
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4 November 2004 |
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Excluding Court of Appeal Christmas vacation from time computation rendered the application timeous; reference allowed and matter remitted.
Court of Appeal — computation of time — court vacations — Government Notice No. 114 of 2.11.1979 — Christmas vacation (15 December–31 January) to be excluded when computing time for instituting applications to Court of Appeal; single judge decision per incuriam; reference allowed and matter remitted for determination on merits.
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4 November 2004 |
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A notice of appeal filed without required leave is incompetent and struck out; costs not awarded when not pleaded.
• Appellate jurisdiction – Requirement of leave to appeal under Section 5(1)(c) AJA – incompetence of notice of appeal filed without leave or extension. • Civil procedure – Rule 82 Court Rules 1979 – striking out notices of appeal. • Costs – general rule that costs follow the event; award of costs presupposes a prayer in the pleadings. • Pleadings – parties are bound by their pleadings; unpleaded relief cannot be granted.
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3 November 2004 |
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Court granted stay pending appeal due to ambiguity and vicarious liability issues; no security was ordered.
Civil procedure – stay of execution pending appeal (Rule 9(2)(b)); ambiguity in judgment and decree; vicarious liability for acts committed off duty; security for stay; corporate/ parastatal capacity to satisfy decree.
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3 November 2004 |
| October 2004 |
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An advocate’s procedural mistake in filing appeals does not justify extension of time to seek leave to appeal.
* Civil procedure – extension of time – whether advocate’s procedural error constitutes sufficient cause to enlarge time – held not sufficient; * Appeal procedure – Rules 43(b) and 44 – requirement to file fresh application for leave to appeal within prescribed period; * Precedent – Calico Textiles Industries v Pyarali Esmail Premji; Umoja Garage v NBC.
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15 October 2004 |
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Whether the respondent could rescind and recover damages after appellant supplied trucks not meeting contractual Tanzania-capacity specifications.
* Contract formation – offer versus contract; contractual terms may be established by documents plus oral evidence.
* Sale of goods – delivery and possession: registration does not substitute for delivery/transfer of possession.
* Goods fit for purpose – seller liable where vehicles fail agreed Tanzania-capacity specifications and are defective.
* Rescission – justified for fraudulent misrepresentation/total failure of consideration.
* Damages – appellate reduction of excessive general damages; foreign currency awards permissible where pleaded.
* Counter-claim – fails where claimant is in breach.
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13 October 2004 |
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Reported
President's removal power subject to PFPSC Act; police officers' "retirement in public interest" held unlawful; damages awarded.
Constitutional and statutory interpretation; Article 36(2) (power to remove) vis-à-vis PFPSC Act; whether "remove"/"retire" synonymous; wrongful premature retirement of police officers; entitlement to back pay and superannuating benefits; assessment and quantum of damages for unlawful termination.
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4 October 2004 |
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Reported
Police Officers - Termination of Service - Termination of Service in the Public interest - Services of Senior Police Officers abruptly terminated by the President by retirement in the Public interest - Whether the termination was lawful - Article 36(2) of the Constitution of the United Republic of Tanzania 1977 (1995 Edition) and section 3(2) of the Police Force and Prisons Services Commission Act 1990.
President - Powers of the President - Constitutional Powers of the President to remove a person from office - Whether the President may use those Powers to terminate service of police officers —Article 36(2) of the Constitution (1995 Edition), and section 3(3) of the Police Force and Prisons Services Commission Act 1990.
Damages - Damages for unlawful termination of employment — Terminated officers claiming to be paid statutory salaries up to the date of compulsory retirement - Whether the claim is awardable. |
4 October 2004 |
| September 2004 |
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Stay of execution granted pending appeal where jurisdictional issue and risk of irreparable loss to the applicant were shown.
Stay of execution – application pending appeal – factors: serious triable issue (jurisdiction), balance of convenience, irreparable loss, prevention of rendering appeal nugatory – enforcement of foreign arbitral awards – jurisdiction to set aside.
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30 September 2004 |
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Applicant should seek Registrar's certificate under Rule 83(1) before invoking Rule 8 to extend appeal time.
Court of Appeal – extension of time – Rule 8 discretionary power to extend time – must be read with specific proviso in Rule 83(1) regarding Registrar's certificate to exclude time for preparation and delivery of record; premature application; filing of counter‑affidavit governed by Rule 53(1) (discretionary).
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29 September 2004 |
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Applicant's unexplained delay in seeking leave to appeal was insufficient; extension of time refused.
Civil procedure — Extension of time under Rule 8 Court Rules, 1979 — Sufficient reason required; Rule 43(a) 14‑day limit — Applicant represented by counsel present at delivery — Lay litigant status and honest but mistaken belief insufficient — Counsel’s mistake not ordinarily a ground for extension except in rare minor cases.
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10 September 2004 |
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Failure to annex the order sought to be stayed makes a stay application incompetent and subject to striking out.
Civil procedure – stay of execution – mandatory requirement to annex the impugned order to the application – applicant must prove any alleged filing lost in Registry – failure to annex renders application incompetent – adjournment to cure such defect not warranted; rule 58(2) permits hearing where a duly served respondent is absent.
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9 September 2004 |
| August 2004 |
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Taxing officer reduced excessive instruction fees and taxed the respondent's bill at Tshs.4,837,500.
Taxation of costs — Reasonableness of instruction and document-preparation fees; application of Rule 9(2) to the 3rd Schedule — consideration of nature of matter and ability to pay; reduction of excessive items; allowance of 50% uplift to most items; service by publication noted.
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27 August 2004 |
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Taxing officer reduced an unitemized, unreceipted bill of appeal costs as unreasonable, allowing Tshs.1,000,000.
* Civil procedure — Taxation of costs — Bill presented as a single unitemized sum without receipts — Non-compliance with Rules 3 and 4 of the 3rd Schedule — Reasonableness under Rule 9(2) — Reduction of excessive costs.
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27 August 2004 |
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High Court validly exercised wide revisional powers to set aside a res judicata finding; leave to appeal was refused.
* Civil procedure – Revision under Section 44(1)(b) Magistrates' Courts Act – Wide powers to correct errors material to merits involving injustice.
* Distinction between High Court's broad revisional jurisdiction and the Court of Appeal's more restrictive revisional powers.
* Res judicata – revision to set aside res judicata finding where trial court erred; direction to proceed to trial on merits.
* Leave to appeal – not warranted where revisional order does not deprive party of hearing or alter rights to detriment.
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23 August 2004 |
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Failure to serve the notice of appeal within Rule 77(1)’s seven‑day period renders the appeal incompetent and subject to striking out.
* Civil procedure – Appeal – Service of notice of appeal – Rule 77(1) mandatory seven‑day service requirement – Failure to serve notice renders appeal improper and liable to be struck out. * Evidence – Allegation of personal service requires affidavit or supporting evidence to be acted upon.
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19 August 2004 |
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10 August 2004 |
| July 2004 |
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Whether redundancy employment disputes fall within the High Court’s original jurisdiction or must be heard by the Industrial Court.
Labour law — Jurisdiction — Redundancy disputes — High Court’s lack of original jurisdiction — Industrial Court under the Industrial Court Act, 1967 — Preliminary objection determined on jurisdictional ground.
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21 July 2004 |
| May 2004 |
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Leave to appeal dismissed where concurrent revision directed fresh determination of instalment payment, making parallel appeal inappropriate.
Civil procedure – leave to appeal; Concurrent proceedings – leave to appeal vs revision; Running account/debt – instalment liquidation and mode of payment; Service of notice of appeal (procedural objection).
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19 May 2004 |
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Non‑compliance with Rule 77(1) — failure to serve notice within seven days — renders the notice of appeal incompetent.
Civil procedure – Court of Appeal Rules 1979 r.77(1) – Service of Notice of Appeal mandatory – Failure to serve within seven days renders Notice of Appeal incompetent; intended appeal struck out; costs awarded.
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18 May 2004 |
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A Court may stay release of decretal funds paid into Court because execution is not complete until funds are released.
* Civil procedure – execution of decree – payment into Court v release to decree-holder – payment into Court does not complete execution; stay may be ordered to restrain release. * Civil procedure – interlocutory relief – single Justice’s powers – setting aside/revision of execution for full Court, but a single Justice may grant a stay to protect an appeal. * Interpretation of drawn order – whether drawn order reflects trial judge’s ruling and consequences for execution.
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3 May 2004 |
| April 2004 |
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A party alleging that court-form signatures are not the Registrar’s must prove that assertion; bare assertions fail.
Court Rules — Forms A and D — signature authenticity — party alleging that a court form was not signed by the Registrar must prove the allegation; Evidence Act s.110(1) — bare assertions from counsel insufficient — preliminary objection dismissed with costs.
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29 April 2004 |
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Absence of a lodged notice of appeal renders an application for stay of execution incompetent.
* Civil procedure – Stay of execution – Requirement to file notice of appeal under rule 9(2)(b) Court Rules 1979 – notice must appear on the record or be evidenced.
* Civil procedure – Rule 3(2)(a) cannot be used to displace a specific procedural rule.
* Civil procedure – Incompetence of stay‑of‑execution application where no notice of appeal has been lodged.
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8 April 2004 |
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The applicant’s leave application, filed beyond Rule 43(b)’s 14‑day limit without extension, was incompetent and struck out.
Civil procedure – Leave to appeal – Time limits under Court of Appeal Rules 1979, Rule 43(b) – Application for leave must be filed within 14 days of High Court refusal – Failure to seek extension renders application incompetent – Ex parte proceedings where respondents served by publication – Discretion as to costs when respondents default.
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5 April 2004 |
| March 2004 |
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Notice of appeal signed by registry officer is not incompetent; Registrar’s duty to ensure endorsement does not invalidate it.
Court of Appeal — Civil procedure — Notice of appeal — Rule 76 and Form D — Whether personal signature of Registrar/Deputy Registrar is required — Effect of Rule 15 endorsement duty — Prior authorities departed from.
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31 March 2004 |
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Court adjourned hearing and ordered status quo maintained pending stay application and service on the unserved respondent.
Court of Appeal – stay of execution – adjournment for service on unserved respondent – maintenance of status quo pending determination – Rule 3(2)(a) Tanzania Court of Appeal Rules, 1979.
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11 March 2004 |
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The appellant's conviction was upheld despite procedural errors, but the illegal 20‑year sentence was reduced to five years.
Criminal law – Burden of proof – apparent versus real shift – identification evidence – failure to give prior description – identification five days after offence – private investigations and credibility – right under section 240(3) Criminal Procedure Act to cross‑examine maker of medical report – sentencing jurisdiction of magistrates under section 170(1)(a) Criminal Procedure Act, 1985.
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11 March 2004 |
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Reported
Statute - Retrospective Effect - Statute is amended to take away right of appeal - Whether the amendment has effect on an appeal that was already pending - Section 5(2)(d) of the Appellate Jurisdiction Act 1979, as amended by Act Number 25 of 2002.
Appeal — Court of Appeal Rules - Notice of Appeal signed for and on behalf of The Registrar.
Whether the notice is valid - Rules 15 and 76 of the Tanzania Court of Appeal Rules 1979. |
11 March 2004 |
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Revision is inappropriate where an available statutory appeal exists; revision applications must annex the decision sought to be revised.
Civil procedure – Revision v. appeal – Revisional jurisdiction not alternative to appellate jurisdiction; requirement to annex decision sought to be revised; availability of statutory appeal (Companies Ordinance s.220) – competence of application for revision.
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10 March 2004 |
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Stay granted and garnishee lifted where applicant offered a guarantee bond and respondent could not be traced.
Civil procedure – Stay of execution – Ex parte application under Rule 52(2) – Garnishee order – Respondent untraceable – Offer to execute guarantee bond as security – Balancing interests pending appeal.
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8 March 2004 |
| February 2004 |
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A decree‑holder must be joined as intervenor where an interlocutory decision affecting its rights was made without hearing it.
Civil procedure – Joinder/intervention – Interested and necessary party – Decree‑holder in original suit entitled to be joined in reference challenging interlocutory order – Natural justice (audi alteram partem) – Distinction from cases where applicant was not party to original proceedings (Maalim Kadau).
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27 February 2004 |
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A pending leave application does not extend the 60-day limit; apply for extension if leave delays instituting appeal.
* Civil procedure – Court of Appeal Rules 1979 – rules 82, 83(1), 84(a) and 8 – striking out notice of appeal where essential steps to institute appeal not taken within prescribed 60 days; effect of pending application for leave to appeal in High Court; requirement to apply for extension of time under rule 8.
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27 February 2004 |
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Reported
Civil Practice and Procedure - Appeals - Appeals to the Court of Appeal — Lodging the Record and Memorandum of Appeal- Record and Memorandum of Appeal not endorsed by the Registrar to signify their lodgment - Effect thereof- Rules 15, 83(1) and 86(3) of the Court of Appeal Rules 1979. |
25 February 2004 |
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A memorandum/notice of appeal not personally signed by the Registrar is not invalid; endorsement is the Registrar's duty.
Appeal procedure — Rules 76/86 and Forms D/F — distinction between lodging and endorsement of appeal documents — Rule 15 requires Registrar to 'cause' endorsement — Registrar may authorise registry officers to endorse — failure to endorse is fault of Registrar/registry, not appellant — prior cases holding notices/memoranda invalid for lack of Registrar’s personal signature departed from.
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25 February 2004 |