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Citation
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Judgment date
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| November 2001 |
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(From the conviction ofthe High Court ofTanzania at Tabora, Korosso, J. dated 15 c November 1995, in Criminal Sessions Case No. 83 of 1990) Evidence - Confession - Retracted confession - - Trial Court relied on retracted confession - Whether conviction is sustainable. D Evidence - Confession - Voluntariness of confession - Confession made at gun point and after considerable and unexplained lapse of time - Whether confession voluntary and admissible. Evidence - Confession - Retracted confession - Admissibility of retracted confession - Trial within trial not held - Whether confession admissible. |
19 November 2001 |
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Reported
Civil Practice and Procedure - Ex-parte judgement - Application for extension
of time to apply to set aside ex-parte judgment and (b) setting aside -
What the Court must consider in the application. |
19 November 2001 |
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Reported
Family Law - Matrimonial Property - Contribution to the acquisition of &
matrimonial property - Whether contribution by the wife must be direct
and monetary.
Family Law - Matrimonial Property - Division of matrimonial properties -
Property acquired through proceeds from the businesses of both spouses
- Whether the wife has a right to such property.
Family Law - Matrimonial property - Division of matrimonial properties -
Proportion of the property that the wife may be entitled to. |
19 November 2001 |
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Reported
A wife in a polygamous marriage was held entitled to a share of properties acquired from joint spousal contributions.
* Family and property law – polygamous marriage – entitlement of a wife to share in properties acquired during marriage through monetary contribution and wifely services. * Evidence – credibility findings – reliance on corroborating witness testimony to establish joint acquisition of assets. * Remedies – award of monetary share in lieu of joint ownership – appellate interference only if award lacks basis in pleadings or evidence. |
19 November 2001 |
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Appellate court upheld that the respondent contributed to joint property acquisition and dismissed the appeal with costs.
Family law – distribution of matrimonial/joint property – proof of contribution to acquisition; credibility of witnesses; appellate review of factual findings; monetary award based on pleaded property value.
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19 November 2001 |
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A court may convict on a retracted extra-judicial confession if it is voluntary, credible and corroborated by circumstances.
* Evidence – Extra-judicial confessions – Retraction and corroboration – A retracted confession may support conviction if the trial court is satisfied of its voluntariness and truth. * Evidence Act s.33(1) – Confession of one co-accused admissible against another. * Procedure – Irregularity in Justice of the Peace’s certificate – omission to record that statement was read not necessarily fatal. * Circumstantial evidence – discovery of weapon and property to corroborate confession.
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19 November 2001 |
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A third-party payment and supervisory role do not confer contractual privity or a right to sue on the original repair contract.
Contract law – privity of contract; agency – change of mode of settlement creating agent role; delivery note and contractual terms; payment of excess by third party does not confer party status; procedure – suing in trade name (Order 29 rule 10).
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19 November 2001 |
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Reported
Invalid rule 83(1) certificate and failure to serve a directly affected company rendered the appeal incompetent and it was struck out with costs.
Civil procedure — Court of Appeal rules — rule 83(1) certificate must be issued after preparation and delivery of record; a future-dated certificate is invalid — rule 77(1) requires service of notice of appeal on persons who seem directly affected (including third parties who acquired title) — non-compliance is fatal to appeal.
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19 November 2001 |
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Reported
Civil Practice and Procedure - Appeals - Record of appeal - Certificate of
delay that must be contained in the record of appeal — Certificate issued
before preparation and delivery of a copy proceedings to the appellant
- Whether proper - Rule 83(1) ofthe Court ofAppeal Rules.
Civil Practice and Procedure - Appeals - Preliminary Objection to an Appeal -
Application to amend kcord of appeal made after a preliminary objection
has been made against the competence of the appeal - Whether such
application may be entertained.
Civil Practice and Procedure - Appeals - Notice of Appeal — Parties that are to
be served with the Notice of Appeal - Section 77(1) of the Court of Appeal
Rules 1979.
Natural Justice - Principles of natural justice — Right to be heard - A party to
be directly affected by an appeal but was not a party to proceedings at the |
19 November 2001 |
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Stay of execution granted pending appeal due to alleged irreparable non‑monetary harm from attachment of applicant’s residence.
* Civil procedure – Stay of execution pending appeal – Allegation that appeal has overwhelming chances of success is insufficient ground for stay. * Stay of execution – Irreparable harm – Attachment of residential house occupied by applicant and family can justify stay. * Evidence – Particulars of irreparable loss ideally in affidavit but oral particulars at hearing may be considered; respondent should seek adjournment or file counter‑affidavit if in doubt.
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19 November 2001 |
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Respondent’s claim to land reallocated during Operation Vijiji was time‑barred; allocation to appellant upheld and prior judgment restored.
* Land law – villagisation (Operation Vijiji) – allocation of land by Village Land Allocation Committee – validity where original occupier vacated during villagisation.
* Possession – continuous occupation – requirement to establish uninterrupted occupation to resist reallocation.
* Limitation – claim for recovery of land – effect of uninterrupted adverse possession and time‑bar under the Law of Limitation Act.
* Appellate review – misdirection by trial court in assessing occupation and failure to address limitation issue.
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19 November 2001 |
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Reported
Striking out a suit for non‑compliance with the Government Proceedings Act amounted to a decree appealable as of right; High Court order set aside and matter remitted.
Civil procedure — striking out for non‑compliance with Government Proceedings Act s.2(2) — rejection of plaint construed as decree — appeal as of right under s.5(1)(a) Appellate Jurisdiction Act — duty to hear chamber application to "perfect" order — appellate power to set aside and remit. |
19 November 2001 |
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Reported
Civil Practice and Procedure — Plaint - Striking out an incompetent plaint -
Power to strike out an incompetent plaint - Whether striking out such
plaint amounts to rejection in terms of Order VII, rule 11(c) of the Civil
Procedure Code 1966.
Civil Practice and Procedure - Rejection of incompetent plaint - Power to reject
an incompetent plaint - Whether rejection plaint may give rise to decree
as defined under section 3 of the Civil Procedure Code 1966.
Civil Practice and Procedure - Appeal - Right to appeal - Decision made under
Order VII, rule 11(c) of the Civil Procedure Code 1966 - Whether appellable
as of right or by leave. |
19 November 2001 |
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Reported
Delay of three days to seek setting aside of ex-parte judgment excused where appellant promptly acted on learning of judgment.
Civil procedure — Extension of time — Order IX Rule 13 CPC — Setting aside ex-parte judgment — Sufficient cause and diligence — Trial judge's misdirection by addressing merits rather than delay — Remittal for hearing. |
14 November 2001 |
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Application for leave to appeal dismissed: no point of law and new issues raised for first time on appeal.
Civil procedure – leave to appeal – requirement of a point of law of sufficient merit – compromise recorded in revision proceedings – inadmissibility of raising new issues on appeal – sale of property during deceased’s lifetime.
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14 November 2001 |
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An extension of time to appeal is premature until leave to appeal is granted and the appeal record is supplied; application dismissed, no costs.
Court of Appeal — extension of time to appeal — prematurity where leave to appeal not granted; application should await grant of leave and supply of record — no costs where respondent duly served but absent.
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1 November 2001 |
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Extension application dismissed as premature because leave to appeal had not yet been granted.
Civil procedure – Extension of time to lodge appeal – Application premature where leave to appeal from lower court not yet granted – Right to appeal accrues only after leave – Costs: no costs where respondent duly served but absent.
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1 November 2001 |