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Citation
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Judgment date
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| December 2004 |
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Originating Summons inappropriate for disputed facts; submissions cannot substitute for evidence; retrial ordered.
* Civil procedure — Originating Summons (Order X) — limited, summary procedure — inappropriate where disputes of fact require oral evidence.
* Evidence — counsel’s written submissions cannot substitute for oral evidence — disputed facts must be proved in court.
* Evidence — statutory declaration not produced at trial cannot be relied on as proof.
* Remedy — procedural irregularity warrants quashing proceedings and ordering retrial.
* Case management — improper re‑assignment of judge discouraged.
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16 December 2004 |
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An appeal lacking a valid decree or order in the record is incompetent and must be struck out with costs.
* Civil procedure – Record of appeal – requirement that decree or order appealed against be included in the record (Rule 89(2)(v)).
* Civil Procedure Decree – Order 23 r.7 and Order 46 r.35(4) – decree/order must bear the date and be signed by the judge who pronounced the decision.
* Validity of decrees/orders – a decree signed by a judge other than the one who gave the judgment is invalid.
* Procedural cure – filing a supplementary record after a preliminary objection cannot cure an already existing defect; such appeals are incompetent and struck out.
* Preliminary objections – notice under Court Rules (Rule 100) and Court’s discretion to adjourn and hear substantive points.
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16 December 2004 |
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An appeal lacking a valid decree signed by the judge who pronounced judgment is incompetent and struck out.
* Civil procedure – validity of decrees/orders – must be signed by the judge who pronounced the judgment (Order 23 r.7; Order 46 r.35(4)).
* Appeals – Record of appeal – requirement to include decree/order under Rule 89(2)(v); absence renders appeal incompetent.
* Procedure – supplementary record filed after preliminary objection cannot cure an existing defect.
* Procedure – preliminary objection notice (Rule 100) and the Court’s discretion to entertain late objections.
* Consequence – incompetent appeals are struck out with costs.
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16 December 2004 |
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An appeal is incompetent and struck out if the record lacks a valid decree or order signed by the judge who pronounced judgment.
Civil procedure — Record of appeal — Requirement to include decree/order — Validity of decree signed by judge other than one who pronounced judgment (Order 23 r.7; Order 46 r.35(4)) — Incompetency of appeal where decree/order missing or invalid — Supplementary record filed after preliminary objection does not cure defect — Rule 89(2)(v) Court of Appeal Rules.
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16 December 2004 |
| November 2004 |
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Reported
Civil Practice and Procedure - Applications - Application for review - Order L, rules 1 and 2 of the Civil Procedure Decree.
Civil Practice and Procedure - Review — Application for review - Jurisdiction for review by a judge who made original decision sought to be reviewed - Order L, rule 5 of the Civil Procedure Decree. |
26 November 2004 |
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Reported
A review must be heard by the judge who made the order if available; otherwise the review decision is void.
Civil Procedure Decree, Order L Rule 5 – review jurisdiction – mandatory requirement that the judge who made the decree hears any review if attached and not precluded; lack of jurisdiction renders proceedings a nullity; procedural impropriety in one judge overturning fellow judge's decision by review.
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26 November 2004 |
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Appeal struck out as incompetent where no valid extension or leave to appeal was granted within statutory time.
* Appellate procedure – requirement of leave to appeal from subordinate court decisions (s.5(1)(c) Appellate Jurisdiction Act) – time limits under Rule 43(a) Court of Appeal Rules.
* Extension of time – High Court’s power to extend time to apply for leave governed by s.11(1) of the Act, not Rule 8 of the Court of Appeal Rules.
* Procedural requirements – no rule mandates attaching judgment/record to an application for leave; failure to do so does not validate an otherwise defective leave/extension.
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26 November 2004 |
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Reported
Criminal Practice and Procedure -Assessors - Failure of trial judge to sum up the case to the assessors before obtaining their opinion — Effect of such failure — Section 256(1) Criminal Procedure Decree Chapter 14 of the Laws of Zanzibar. |
26 November 2004 |
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Failure to sum up to assessors and unexplained judicial transfer vitiated the manslaughter trial; conviction quashed and retrial ordered.
Criminal procedure – Trials with assessors – Whether a judge must sum up to assessors and record their opinions; statutory 'may' versus established practice; transfer of cases between judges – requirement for reasons, potential prejudice, and role of Chief Justice/ Judge in-charge; effect of judge's retirement under Article 95(3) of the Zanzibar Constitution.
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26 November 2004 |
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Reported
Civil Practice and Procedure — Exhibits -Handling of Exhibits Exhibits handled in a way that makes tampering with them possible — Effect thereof.
Civil Practice and Procedure — Search — Mandatory conditions to observe in conducting a search - Section 114 (1) and (2) of the Criminal Procedure Decree Chapter 14 of the Laws of Zanzibar.
Civil Practice and Procedure - Functus officio - When a judge becomes functus officio. |
26 November 2004 |
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Court allowed appeal, affirming lower courts' finding of sale and the respondent's locus standi; High Court erred.
Appellate jurisdiction — requirement of High Court certificate under s.5(2)(c) of the Appellate Jurisdiction Act; Appeal against concurrent findings of fact — interference by higher court; Evidence — sufficiency to prove sale of land; Locus standi — heir's standing to sue; Compensation for improvements — valuation method left undecided.
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26 November 2004 |
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High Court improperly disturbed concurrent factual findings; appeal allowed and High Court certificate upheld.
* Appellate procedure – certification of point of law under section 5(2)(c) Appellate Jurisdiction Act – certificate valid though not specifically applied for where leave application raised points of law.
* Civil procedure – interference with concurrent findings of fact – higher court to show sufficient grounds before upsetting lower courts' factual conclusions.
* Property – proof of sale and possession of land – adequacy of evidence to establish purchase.
* Locus standi – heirship as basis for instituting land recovery suit.
* Limitation – assessment of whether suit was time-barred.
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26 November 2004 |
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Reported
Islamic Law - Jurisdiction of the Court of Appeal - Question of inheritance among Muslims coming within the jurisdiction of Kadhis' Courts - Whether Court of Appeal of Tanzania has jurisdiction over the matter — Article 96(2) of the Constitution of Zanzibar 1984.
Islamic Law - Jurisdiction — Respondent claims inheritance of a house under Islamic law - Applicant claims right of ownership of the house under Contract of Sale - Whether Kadhi's Court has jurisdiction to determine the question of sale.
Constitutional Law - Revision of decisions originating from and determined in Kadhis ’ Courts - Matter may entail interpretation of a provision of the Constitution of Zanzibar 1984 - Whether the Court of Appeal of Tanzania has jurisdiction to do so - Article 96(2) ofthe Constitution of Zanzibar. |
26 November 2004 |
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Reported
Criminal Practice and Procedure - Appeal - Summary dismissal of appeal - Whether the High Court has power to summarily dismiss an appeal.
Criminal Practice and Procedure — Appeal - Power of the High Court to summarily dismiss an appeal - Whether the court may dismiss an appeal summarily after it has allowed the parties to argue the appeal on merit — Section 328 of the Criminal Procedure Decree. |
26 November 2004 |
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High Court lacked jurisdiction to revise an appealable conviction the applicant failed to appeal; revisional ruling set aside.
Criminal procedure – Revision jurisdiction – Section 340(5) Criminal Procedure Decree (Cap.14) – Where an appeal lies and no appeal is brought, revisional proceedings by the party who could have appealed are not maintainable – Revisional orders made without jurisdiction are nullities – Competence of appeal.
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26 November 2004 |
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Reported
Civil Practice and Procedure - Leave to appeal to Court of Appeal - Whether there was a legal point worth consideration of the Court of Appeal. |
19 November 2004 |
| February 2004 |
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Reported
Appeal dismissed: Land Tenure Act governs title; compensation claims unpleaded and statutory declaration not proof of ownership.
* Land law – applicability of Land Tenure Act 1992 – public land, presidential vesting and grants by competent authority. * Civil procedure – appeal judgment requirements – compliance with Order XLVI r.31 (points, decisions, reasons). * Civil procedure – pleadings – reliefs and issues must be specifically pleaded; unpleaded compensation claims not entertainable. * Evidence – statutory declaration insufficient to establish ownership or superior title to public land. * Conflict of laws – Transfer of Property Act inapplicable to grants of public land under Land Tenure Act. |
10 February 2004 |
Civil Practice and Procedure — Pleadings - Claim for compensation not pleaded at the trial- Whether it is competent to raise it on appeal- Order VII, rule p 8 of the Civil Procedure Decree Chapter 8 (Zanzibar).
Civil Practice and Procedure - Judgment - Contents of a judgment — Order XLVI, rule 31 of Civil Procedure Decree (Zanzibar).
Land Law - Land tenure - All natural land declared public land vested in the President - Effect thereof- Land Tenure Act 1992.
Land law - Right of occupancy - Power of minister to grant or terminate occupancy - Section 3(4) of the - Land Tenure Act 1992. |
10 February 2004 |