|
Citation
|
Judgment date
|
| December 1999 |
|
(From the Judgment ofthe High Court ofZanzibar at Vuga, Dourado, J., in Sessions Case No. 2 of 1998 dated 23 March 1999) Criminal Practice andProcedure - Transfer ofCases - Whether the ChiefJustice can transfer a partly heard case from one judge to another - Section 13 ofthe High Court Act Number 2 of 1985. Criminal Practice and Procedure - Bias - Allegations ofbias against a Judge - Such allegations not to be taken lightly |
13 December 1999 |
|
Application for stay struck out where no notice of appeal was filed against the ruling sought to be stayed.
Civil procedure — Stay of execution — Court of Appeal may grant stay only where a proper notice of appeal has been lodged (Rule 9(2)(b)) — Notice of appeal against substantive judgment does not validate an application to stay an intervening ruling refusing a stay — Application incompetent and struck out.
|
3 December 1999 |
|
Applicant’s motion to strike respondents’ appeal granted where record was served out of time without leave; appeal struck out and costs awarded.
* Civil procedure – appeal procedure – service of record of appeal – Rule 90 requirement to serve copy within seven days – failure to obtain leave to serve out of time – Rule 82 sanction of striking out. * Adequacy of explanation for late service – need for corroboration and for seeking extension of time. * Court will not extend time in absence of application; public importance irrelevant without such an application. * Costs awarded to successful applicant and to respondent affected by abandoned prayer.
|
2 December 1999 |
| September 1997 |
|
|
A judge who is functus officio cannot lawfully vary an earlier order without a review application and hearing of the parties.
Judicial review — functus officio — judge cannot suo motu vary earlier order without review application; procedural fairness — parties must be heard before varying orders; Immigration law — judicial direction to issue entry permits/special passes.
|
26 September 1997 |
| August 1997 |
|
|
Court refused to depart from appeal rules and deemed notice withdrawn where leave to appeal was absent.
Civil procedure – Appeals – Requirement of leave to appeal and contents of record of appeal (Rules 76, 83, 89) – Effect of absent leave: appeal not instituted – Rule 3 discretion to depart from Rules in the interest of justice must protect both parties – Established practice: strike out or deem withdrawal of notice of appeal – Costs under Rule 84(a).
|
1 August 1997 |
| July 1997 |
|
|
Convictions based on uncertain night-time identification were quashed as unsafe; remanding after bail at prosecutor’s request criticized.
* Criminal law – Identification evidence – Visual identification at night – Danger of unsafe convictions where identification is uncertain or conditions (darkness, fleeing crowds) impair reliability. * Appellate review – Misdirection by judge regarding facts not supported by record may vitiate decision. * Procedure – Impropriety of remanding accused after bail at prosecutor’s request in anticipation of appeal.
|
4 July 1997 |
|
Leave to appeal dismissed for challenging the wrong follow-up order instead of the original registrar's execution order.
* Civil procedure – Execution of decrees – Whether a lower court may order execution while an application for stay is pending before a superior court – Importance of challenging the correct order (registrar’s execution order versus later follow-up order of a judge).
|
4 July 1997 |
(Appeal from the judgment of the High Court of Zanzibar at Zanzibar, Dahoma J) Civil Practice and Procedure - Appeals - Requirements - Order Hl Rule 3 of the Zanzibar Civil Procedure Decree Cap 8 |
4 July 1997 |
| February 1997 |
|
|
Representation that two persons are partners and a signed guarantee can render appellants jointly liable for unpaid goods.
* Contract law – Representation as partnership – Section 238(1) Law of Contract Decree – liability arising from conduct and representation. * Contract evidence – Written undertaking as guarantee – Exhibit PI held to be clear guarantee inducing delivery. * Evidence – Rejection of alleged receipts and documents as forged or irrelevant where authorship and materiality not established. * Civil procedure – Death of party after close of hearing – Order XXVI Rule 6 and Section 129 preserve proceedings; substitution of legal representative permitted.
|
26 February 1997 |
| August 1996 |
|
|
A tribunal’s decision is void where members of the deciding panel did not hear the whole evidence and voting is not recorded.
* Administrative law – natural justice – tribunal members who decide must have heard all the evidence – coram changes vitiating decision; * Procedural requirements – requirement that decision be by majority of members present and voting – failure to record votes undermines validity; * Legality of tribunal – potential expiry of members’ tenure may cast doubt on decision.
|
7 August 1996 |
| June 1996 |
|
|
Magistrate had no statutory power to convert criminal charges into civil proceedings; High Court rightly restored prosecution.
Criminal procedure — Magistrate’s power to convert criminal to civil proceedings — No general power; only permitted after hearing, on withdrawal (s.172) or nolle prosequi (s.75) — Company law — Separate legal personality — Director/shareholder may be criminally liable to company.
|
12 June 1996 |
| November 1995 |
|
|
Court taxed costs limited to Court of Appeal items and disallowed unsubstantiated claims lacking receipts.
Taxation of costs – scope limited by Rule 118(1) to Court of Appeal costs – requirement for receipts and particulars – unsubstantiated claims disallowed – unsupported 'add half of all items' claim rejected.
|
14 November 1995 |
| June 1995 |
|
|
A Court of Appeal judgment cannot be reviewed first in the High Court; review must be sought in the Court of Appeal.
Civil procedure – review of appellate judgment – jurisdiction – whether High Court may review Court of Appeal judgment; Rule 44 interpretation; procedural forum for review; newly discovered evidence and its sufficiency to justify review.
|
16 June 1995 |
Civil Practice and Procedure - Review - Judgment of High Court appealed against - Appeal Court hears the appeal and makes a decision - Whether a High Court judge can entertain an application to review his judgment already appealed against. Court ofAppeal Rules - Review - Judgment of High Court appealed against - Appeal Court hears appeal and makes a decision - Whether an application to review the judgment lies to the High Court - Rule 44 Court of Appeal Rules. |
16 June 1995 |
| May 1995 |
|
|
Application to overturn High Court refusal of leave dismissed as time‑barred; ignorance of rules is no excuse.
Appellate procedure – rule 43(a) and (b) – time limits for applying for leave to appeal – extension of time – ignorance of law not a defence – bench composition for leave applications – matrimonial property rights.
|
24 May 1995 |
| November 1994 |
|
Civil Practice and Procedure - Affidavits- Affidavit lacking verification and not disclosing source of deponent’s knowledge and information - Whether valid. |
28 November 1994 |
|
Court set aside Kadhi's judgment and statutory declaration for lack of jurisdiction and fraud in a property claim.
* Jurisdiction — Kadhi's Courts — limited to Muslim personal law (status, marriage, divorce, inheritance) — secular property title disputes not within Kadhi's jurisdiction. * Fraud on the court — judgment obtained by forged document is void ab initio. * Evidence of forgery — deceased seller predeceased alleged sale; postage stamps post‑date alleged execution. * Appellate power — Court of Appeal may step into High Court's shoes (Appellate Jurisdiction Act) where matter is not one of Islamic law and review is required. * Statutory declaration based on a fraudulently obtained judgment may be cancelled.
|
28 November 1994 |
|
Leave to appeal dismissed for procedural non-compliance and for being filed out of time, with costs.
Court of Appeal Rules 1979 — Rule 46(3) (requirement to attach High Court decision and order) — Rule 43(b) (time limit to apply for leave) — Rule 3(1) (discretion to relax procedural rules) — procedural compliance and consequences of filing out of time; misleading statements to court; costs ordered.
|
28 November 1994 |
| July 1994 |
|
|
Alleged fraud did not defer limitation; suit filed ten years after registration cancellation was time-barred.
* Civil procedure – preliminary objection on limitation – preliminary objections properly heard before framing issues; * Limitation law – computation of limitation – cancellation of registration as commencement date; * Limitation law – s.18 (fraud) – fraud postponement requires evidence that fraud prevented knowledge of the right; * Appeals – service of notice of appeal – court dispatch records and Rule 3(1) discretion to regularise service.
|
5 July 1994 |
| May 1994 |
|
|
Reported
Court of Appeal Rules - Application to strike out a notice of appeal for failure to institute the appeal in time - Whether lack of money is a defence. |
13 May 1994 |
|
Reported
Evidence - Evidence of a spouse - Failure to warn oneself on evidence from a spouse.
Evidence - Credibility of- Witnesses - Whether appellate court can assess credibility of witnesses |
13 May 1994 |
| April 1994 |
|
|
Appellate court upheld trial magistrate’s finding that an inherited house was demolished and a new house built and sold, dismissing appellant’s ownership claim.
Land and title dispute – succession inheritance of house – demolition and rebuilding – credibility of witnesses – municipal records and building permits – sale of newly built house; appellate deference to trial court’s findings of fact.
|
13 April 1994 |
| November 1993 |
|
|
Conviction for theft by a public servant quashed where evidence including a contested written admission failed to prove guilt beyond reasonable doubt.
Criminal law – Theft by public servant – Insufficiency of evidence; Credibility of store attendant’s testimony; Authorship and proof of alleged written admission; Conviction unsafe and must be quashed.
|
25 November 1993 |
|
Conviction based on uncorroborated accomplice evidence and procedural irregularity (s.168) was quashed; appellant released.
* Criminal law – conviction based on uncorroborated accomplice evidence – need for caution and corroboration.
* Criminal procedure – failure to comply with mandatory s.168 (recall of witnesses) upon change of magistrate – vitiates proceedings.
* Evidence – failure to cross-examine co-accused does not amount to proof of guilt or justify shifting burden of proof.
* Appellate review – adequacy of record review and reasoning required when upholding convictions.
|
25 November 1993 |
|
Transfer to oneself by a fiduciary without donor's consent or proof of consideration is void and appeal dismissed with costs to respondent.
Property law – Transfer to oneself – Transfer of Property Decree (Cap. 150) – transfer to oneself void ab initio; fiduciary relationship and power of attorney do not permit appropriation without donor's consent; lack of consideration vitiates sale – appeal dismissed; costs to respondent.
|
25 November 1993 |
|
Reported
Contract - Contract of sale - Party fails or refuses to perform an agreement - Court can order specific performance.
Court of Appeal - Appeals to the Court of Appeal originating from District Courts in Zanzibar - Whether point of law should be certified for determination by Court of Appeal- Appellate Jurisdiction Act 1979.
Court of Appeal - Appeals to Court of Appeals in cases originating from District Courts in Zanzibar - Leave of the High Court is required - Appellate Jurisdiction Act 1979. |
25 November 1993 |
|
A seller cannot avoid specific performance by unproven clan objections or alleged non-payment; the valid sale must be enforced.
Property law – Specific performance – Seller’s defence based on customary/clan objections and ancestral graves – evidentiary burden to prove lawful impediment to sale – seller’s repudiation in favour of higher-priced third-party sale – obligation to execute Deed of Sale.
|
25 November 1993 |
| February 1993 |
|
|
Court allowed appeal: National Security Act may extend to Zanzibar; prosecutions require proper Zanzibar public‑officer consent; DPP may act if delegated.
• Constitutional law — Union and Zanzibar constitutions — construction of Union statutes in light of constitutional amendments (Fifth Constitutional Amendment Act, 1984).
• Constitutional conflict — whether Zanzibar Constitution Article 131(2) renders Union security legislation inapplicable.
• Criminal procedure — locus of authority to give consent to prosecute in the High Court of Zanzibar; role of Attorney‑General of Zanzibar and Director of Public Prosecutions; consequences of absent consent (nullity).
• Legislative procedure — difference between tabling legislation in the Zanzibar House of Representatives and formal enactment under Union/Zanzibar constitutional framework.
|
24 February 1993 |
| December 1992 |
|
Evidence - Documentary - Document not registered as required by law - Right in immovable property indisputably established between the parties - Whether the Court may look at this otherwise inadmissible document |
4 December 1992 |
Evidence - Corroboration - Evidence which needs to be corroborated cannot corroborate. |
4 December 1992 |
| March 1992 |
|
Criminal Practice and Procedure - Jurisdiction - Ruling on preliminary point relating to jurisdiction of trial court - Whether appealable - Whether Court of Appeal has jurisdiction to entertain the appeal. Criminal Practice and Procedure - Appeal - Jurisdiction Section C 6(2) ofthe Appellate Jurisdiction Act, 1979 Right to appeal |
13 March 1992 |
| January 1992 |
|
|
Appeal struck out for multiple non‑compliances with Court of Appeal Rules, including late filing and failure to serve.
Civil procedure – Appeals – strict compliance with Court of Appeal Rules; service of notice of appeal; time limits for lodging memorandum of appeal; Registrar’s certificate for delay; content of record of appeal (decree); penal consequence: striking out appeal.
|
1 January 1992 |
|
Conviction quashed where stolen property was inadequately identified and accomplice-related testimony lacked independent corroboration.
* Criminal law – identification of stolen property – adequacy of in-court identification and requirement to link unique marks/serial numbers to complainant's property. * Criminal law – accomplice evidence – necessity for independent corroboration; testimony of an accomplice's close relative not automatically independent corroboration. * Appeal – conviction unsafe where identification and corroboration are deficient.
|
1 January 1992 |
|
|
1 January 1992 |
| December 1990 |
|
|
Court refused to dismiss appeal for absent/inadequate representation, granted a single adjournment and ordered appellants to pay respondents' wasted costs.
* Civil procedure – Counsel withdrawal and party representation – failure of instructed representative to communicate – application for dismissal under Court of Appeal Rules, 1979 rule 105 – discretion to dismiss versus grant of adjournment.
* Costs – wasted costs occasioned by an abortive hearing – obligation of appellants to pay respondents' travelling and incidental expenses.
* Court discretion – balancing injustice to absent appellants residing abroad against inconvenience to Court and respondents.
|
4 December 1990 |
| April 1990 |
|
|
Court finds appellant made sufficient payments and relied on respondents to procure transfer; appeal allowed and Regional Court order for delivery of Title Deed restored.
Property — equitable ownership — whether payments and conduct of parties established appellant’s equitable right to land and title despite registered possession by respondents; evaluation of credibility of witnesses and documentary evidence (branch minutes, third‑party testimony).
|
23 April 1990 |
| May 1989 |
|
|
Reported
Contract - Oral loan agreement - Concluded by one of the directors of a company - Loan money given to the director - Whether company liable to repay the loan.
Company Law- Directors - Powers - One of company directors concludes an oral loan agreement and receives the money - Whether company liable to repay the loan - Section 33(b)
Companies Decree of Zanzibar-Relevant articles of the Articles of Association of the Company considered and construed. |
17 May 1989 |
|
Negligence or abandonment by former counsel causing inordinate delay does not, by itself, justify extension of time to lodge an appeal.
Civil procedure – extension of time under Rule 8 – inordinate delay caused by former counsel's negligence or abandonment is generally not sufficient cause for extension unless extraordinary or minor-circumstance exceptions apply; leave to appeal under s.5(1)(c) of the Appellate Jurisdiction Act need not enumerate points of law.
|
16 May 1989 |
|
Failure to take an essential step in prosecuting an appeal permits striking out the Notice of Appeal under Rule 82.
* Civil procedure – appeals – failure to prosecute – whether failure to take an essential step after filing Notice of Appeal permits striking out under Rule 82 of the Court of Appeal Rules.
|
15 May 1989 |
| May 1988 |
|
|
Appeal against convictions for unlawful carriage/export of cloves dismissed; duress defence not proved, convictions upheld.
Criminal law – duress/compulsion as a defence – burden on accused to prove duress – credibility of afterthought defences raised first at trial – appellate deference to trial judge’s findings of fact and credibility in smuggling/export offences.
|
6 May 1988 |
|
Out-of-time appeal dismissed where applicant failed to prove representative's authority and gave no satisfactory excuse to extend time.
Appeal out of time; receipt of judgment by third party; proof of authority to receive judgment; duty of absent litigant to make provision to learn judgment; discretion under Rule 8 to extend time.
|
6 May 1988 |
|
Applicant’s absence abroad and failure to prove representative’s authority did not justify extending time to appeal.
Civil procedure – application for extension of time under Rule 8; authority to receive judgment for another – power of attorney not invariably required but convincing proof of authority necessary; absence abroad and lack of diligence not a sufficient cause for extension.
|
6 May 1988 |
Criminal Practice and Procedure - Substituted conviction - “Being in possession of property suspected to have been stolen” substituted for “Stealing by servant" - Whether irregular - Section 271 ofthe Criminal Procedure Decree. Evidence - Ofaccomplice - Corroboration |
5 May 1988 |
|
Appeal dismissed: possession of suspected stolen property upheld; section 285A wrongly invoked without Attorney General's sanction, substituted with s.271(1)(a).
Criminal law — possession of property suspected to have been stolen — corroboration of accomplice evidence; statutory requirement of Attorney General's sanction for prosecutions under section 285A; substitution of conviction under section 271(1)(a) Criminal Procedure Decree.
|
5 May 1988 |
|
Provocation and self‑defence were not established; attack showed revenge, conviction upgraded to murder with death sentence imposed.
Criminal law — Homicide: provocation and self-defence; distinction between manslaughter and murder where attack continues after initial blow; excessive force and pursuit as indicators of revenge; appellate substitution of conviction and sentence; assessors' opinion order.
|
5 May 1988 |
|
Court rejected provocation and self‑defence, finding eyewitness evidence that the respondent initiated the attack.
Criminal law – Provocation – When provocation is unavailable where accused denies being provoked; Criminal law – Self‑defence – Requirement to prove lawful defensive action and distinction from excessive force; Appeal – Review of conviction and sentence; Procedural irregularity – Assessors' opinions given in unusual order.
|
5 May 1988 |
| January 1988 |
|
|
High Court properly had jurisdiction; purported appellate sports council decision was void because the council did not exist, so appeal dismissed.
Sports law – administrative decisions – appeal from football association decisions to sports council – existence and validity of the appellate sports council at material time – High Court jurisdiction to entertain challenges to sports administrative decisions.
|
6 January 1988 |
Administrative Law - Jurisdiction - Members of Zanzibar Sports Council whose tenure had lapsed - Whether competent to make effective decisions. Civil Practice and Procedure - Procedure in High Court of Zanzibar - Party proceeded by chambers summons - Whether permissible |
6 January 1988 |
|
A loan obtained through a director was held to be a company loan under directors’ authority; company liable to repay.
Company law – capacity and authority of directors to borrow under articles of association; agency and apparent authority; indoor management rule (Royal British Bank v Turquand) – liability of company for loans obtained through a director; evidence on whether advances are personal or corporate.
|
1 January 1988 |
| December 1987 |
|
|
Electrifying a garden to deter theft that causes death amounts to manslaughter; conviction and 10‑year sentence upheld.
Criminal law – manslaughter versus murder; liability for death caused by deliberate electrified trap; inference of knowledge from location of connection; credibility of third‑party blame; sentence proportionality.
|
30 December 1987 |