|
Citation
|
Judgment date
|
| December 1997 |
|
|
Review allowed and ex parte judgment on counterclaim set aside so both action and counterclaim may be decided on merits.
Civil procedure – Review of ex parte judgment – Whether new and important matter exists to justify review; procedural competence where order not annexed but present on record; effect of silence in reply to counterclaim – setting aside ex parte judgment to decide merits.
|
29 December 1997 |
Criminal Procedure - Preliminary hearing in terms of section 192 of the Criminal Procedure Act 1985 - Failure to conduct a preliminary hearing is not fatal to proceedings unless such omission results in an unfair trial leading to failure of justice. Criminal procedure - Withdrawal of charge in District Court in terms of s 98(a) Criminal Procedure Act- Withdrawal does not operate as a bar to subsequent proceedings being preferred on the same facts, Stock theft - Where the accused had offered to refund the number of cattle stolen, irrelevant that no consistent description of cattle was given or that none were tendered. |
29 December 1997 |
|
Reported
Repayment of stolen cattle and credible identification supported conviction; omission of preliminary hearing and prior withdrawal under s 98(a) were not fatal.
* Criminal law – cattle theft – identification and proof where stolen property not produced – credible witness description can suffice.
* Criminal procedure – s 192 Criminal Procedure Act – preliminary hearing: omission not fatal unless unfair trial shown.
* Criminal procedure – s 98(a) withdrawal of charge – does not bar subsequent prosecution on same facts.
* Admission by conduct – repayment of stolen property can be treated as admission of guilt.
|
29 December 1997 |
|
Applicant's motor-vehicle theft conviction upheld where admissions, recoveries and fingerprints proved guilt beyond reasonable doubt.
* Criminal law – Theft of motor vehicle – Proof beyond reasonable doubt – Recovery of stolen vehicle and parts – Identification by owner and witness testimony.
* Evidence – Admissions/confessions and fingerprint evidence – weight and admissibility.
* Credibility – Materiality of inconsistencies in witness statements and limits of appellate review.
* Acquittal of co-accused where evidence insufficient to establish joint participation.
|
23 December 1997 |
|
Appellant unlawfully laid a water pipe across respondent's farm; removal ordered and damages set at TShs 15,000.
Property law — Unauthorized laying of water pipe across another's land — Consent required under Water Ordinance; right of access to water does not override property rights — Assessment of damages for destroyed crops — Trial court site visit irregularity not necessarily fatal if no miscarriage of justice.
|
23 December 1997 |
|
Court granted ex parte leave to serve summons abroad by courier, finding Rule V(29) conditions met and courier acceptable.
* Civil procedure – Service out of jurisdiction – Order V Rule 29 CPC – requirements: defendant resident outside Tanzania and no known agent in Tanzania – court’s discretion to permit service by specified modes. * Interpretation – "by post" to include modern courier systems (DHL/courier) – wide construction in light of communication developments. * Ex parte leave – dispensing with notice of appearance where Rule 29 conditions satisfied.
|
23 December 1997 |
|
The appellant’s appeal dismissed: a bona fide claim of right is a defence to malicious damage to property.
* Criminal law – Malicious damage to property – Bona fide claim of right as a defence. * Property/land disputes – Where dispute concerns ownership or boundaries, matters should be resolved by civil proceedings rather than criminal prosecution.
|
22 December 1997 |
|
Respondent's bona fide claim of right is a defence to malicious damage; land disputes should be resolved civilly.
Criminal law – Malicious damage to property (s.326 Penal Code) – Bona fide claim of right as a defence – Land/ownership disputes are to be resolved by civil proceedings, not criminal charges.
|
22 December 1997 |
|
Court granted an extension to appeal out of time so the appellant may be heard on possible inadequacy of sentence.
Criminal procedure – extension of time to file appeal under s.361 CPA; delay caused by lack of prison facilities; appellate prospects vs right to be heard on sentence adequacy; discretion to grant leave out of time.
|
22 December 1997 |
|
Recent-possession inference cannot sustain conviction where a trader credibly produces receipts and prosecution fails to disprove lawful ownership.
* Criminal law – doctrine of recent possession – inference of guilt from possession of recently stolen goods – limits where accused trades in identical goods and adduces receipts; burden on prosecution to disprove lawful ownership beyond reasonable doubt.
|
22 December 1997 |
|
No actionable publication or malice proved; police report privileged; defamation and wage claims improperly joined, claim dismissed.
Defamation — Publication — Whether defendant published that claimant was a thief; Privileged communications — duty to report suspected theft to police; Malice — requirement and burden of proof; Proof of special damages — need for evidence/receipts; Misjoinder — separation of defamation and employment wage claims.
|
19 December 1997 |
|
Revision is extraordinary and unavailable absent glaring procedural irregularity on the court record; application dismissed.
Criminal procedure — Revision under s.372 CPA — Scope where trial pending; interlocutory orders not normally appealable; revisional power discretionary and for exceptional cases only; requirement that irregularity appear on the record; joinder of interested co-accused permitted.
|
18 December 1997 |
|
High Court restored Primary Court’s order for demarcation and construction of a village road, quashing the District Court reversal.
Land/road dispute – right of way through private shamba – Primary Court order for measurement and construction of village road – appellate review; whether District Court justified in reversing unanimous trial court – District Engineer to inspect and demarcate road boundaries.
|
18 December 1997 |
|
Res judicata not established; Primary Court’s factual findings on land ownership upheld and appellate reversal quashed.
Land law – ownership dispute – res judicata – prior judgment must concern same parties and same subject-matter; value of Primary Court site inspection and witness credibility in establishing title.
|
17 December 1997 |
Criminal law - Robbery - Proof of- Circumstantial evidence - Evidence must lead to an irresistible inference |
17 December 1997 |
|
Reported
Acquittal upheld for lack of safe identification; court ordered return of marked coffee bags to cooperative members.
* Criminal law – Armed robbery and receiving stolen property – identification evidence – inadmissible/new identification in re-examination – cross-examination rights and safety of identification. * Criminal law – Circumstantial evidence and doctrine of recent possession – requirement of single irresistible inference. * Restitution/ownership – marked goods identified by Exhibit P4 – criminal court may order return to owners where identity of property is established.
|
17 December 1997 |
|
Plaintiff failed to prove Tsh1,000,000 claim but court awarded Tsh800,000 in its discretion for foundation value.
Land dispute – value of improvements – proof of damages – absence of receipts – court discretion to award fair compensation; ex parte proceedings after failure to file defence; jurisdictional observation (Resident Magistrate Court limits).
|
17 December 1997 |
|
Court set aside striking-out for non-appearance and restored application due to registry shortcomings in recording adequate service particulars.
Civil procedure – service of process – adequacy and particularity of addresses in originating documents – court/registry duty to record proper service particulars – relief from striking-out for non-appearance where registry shortcomings contributed.
|
17 December 1997 |
|
Appellant entitled to one quarter of house value for matrimonial contribution; respondent proven owner, valuation required to quantify payment.
* Family law – divorce – property disputes between spouses – ownership vs contribution to acquisition of matrimonial property
* Evidence – title/documentary proof of ownership vs contribution by spouse through purchase of materials or labour
* Remedies – award of monetary share for contribution to property acquisition; duty to obtain independent valuation to quantify entitlement
|
16 December 1997 |
|
Donor’s recorded gift and demarcated boundaries upheld; appellant’s challenge and limitation objection fail; appeal dismissed with costs.
* Civil procedure – appeal time-limits – insufficiency of record to determine when copy of judgment was served - competence of appeal.
* Land law – inter vivos gift – oral testimony supported by village/ward recording and boundary demarcation – validity of gift and vesting of title.
* Evidence – demarcation and interference with boundary markers as evidence of possession and ownership.
|
15 December 1997 |
|
High Court dismissed appellant’s challenge, upholding respondent’s title by gift and awarding costs.
Land law – Gift of land – Donor’s testimony and involvement of village and ward authorities as proof of transfer; Boundary demarcation and possession; Appeal procedure – limitation/timeliness – uncertified primary court judgment and absence of proof when copy was obtained prevents determination of competence; Appellate review – when to interfere with district court evaluation of evidence.
|
15 December 1997 |
|
A cross-appeal raising substantial probate issues must be heard despite procedural defects in notice/timing.
* Civil procedure – Cross-appeal – Requirement for notice to cover cross-appeals – Magistrate Court Act 1984 s.20(2)&(3) mutatis mutandis.
* Probate – Presumption of marriage – Rebuttal and characterization of matrimonial assets.
* Procedural fairness – Dismissal of cross-appeal for procedural defect where substantive issues require hearing.
|
12 December 1997 |
|
Second appeal in family property dispute: prior judgment not res judicata; lower courts' factual findings upheld; appeal dismissed.
Family law – Succession/occupation of homestead – Ownership/occupation dispute over parents' house – Res judicata not established where prior decision involved different parties and different land – Appeal court will not disturb factual findings supported by evidence – Prohibition on enclosing/excluding co-heirs.
|
12 December 1997 |
|
Appeal dismissed: eyewitness identification, recovery of stolen property and arrest circumstances upheld convictions for robbery with violence.
Criminal law – Robbery with violence – Visual identification evidence – Recovery of stolen property and weapons as corroboration – Absence of police identification forms does not necessarily vitiate reliable identification – Lighting and witness familiarity relevant to identification credibility.
|
12 December 1997 |
|
Primary Court’s sale/distribution of estate without appointing an administrator is a nullity; proper appointment and accounts are required.
Administration of estates – necessity of formal appointment of an administrator – Primary Court lacked authority to order sale/distribution without letters of administration; absence of inventory/accounts renders distribution nullity – lower courts erred in relying on unsupported distributions – directions for appointment, filing of inventory/accounts within 30 days, seven‑day hearing and fresh valuation where necessary.
|
12 December 1997 |
|
Defective notarization and lack of proof of payment rendered the sale and transfer void; title remained with the respondent.
* Property law – Sale and transfer – validity dependent on proper notarization and execution in presence of notary/advocate. * Evidence – proof of payment – absence of receipt defeats claim of consideration on balance of probabilities. * Formalities – signatures before an advocate’s clerk do not substitute for execution before the advocate; defective notarization renders instruments void. * Fraud and misrepresentation – improperly procured documents may be rescinded and no title passes.
|
12 December 1997 |
|
Ordinary stealing conviction upheld; Minimum Sentence Act inapplicable absent a specified offence or specified authority.
Criminal law – Stealing – sufficiency and credibility of direct eyewitness and investigative evidence; Sentencing – Minimum Sentence Act 1972 (s.5(a)) inapplicable where offence is ordinary stealing and complainant is not a specified authority.
|
11 December 1997 |
|
Conviction for threatening to kill upheld; maximum sentence reduced as unjustified in the circumstances.
Criminal law – Threats to kill – s.89(2)(a) Penal Code – Elements of a threat: words, proximity and presence of weapon – Credibility of witnesses – Sentencing: maximum penalty reserved for extreme cases; court reduced sentence.
|
5 December 1997 |
|
Long uninterrupted occupation (22 years) indicated sale and rendered the recovery claim time‑barred under customary law.
Customary land – recovery of possession – limitation under G.N. 311/1964 item 6 (12 years) – continuous undisturbed occupation as evidence of sale not mortgage – laches/sleeping on rights.
|
5 December 1997 |
|
Applicant’s default and no arguable defence justified dismissal; summary-suit relief limited to cheque amount, court-rate interest, and prescribed expenses.
Civil procedure – Revision of magistrate’s ruling – affidavit defects and proper approach to offending paragraphs; Summary suit – Order XXXV CPC and Bills of Exchange Ordinance – scope of relief in dishonoured-cheque suits (only cheque amount, court-rate interest and expense recovery; not general damages or punitive interest); Notice of dishonour dispensed with where drawer countermanded (stop payment); Leave to defend in summary suits requires a plausible, substantive defence and sufficient cause for non-appearance.
|
5 December 1997 |
|
Court refuses review, upholds finding respondent acquired title by adverse possession, and awards costs.
Land law – adverse possession/acquisitive prescription – continuous possession and planting of permanent crops for statutory period; Civil procedure – review versus appeal – High Court will not review its own judgment absent apparent error on record or new material; Jurisdiction – appeal route from Ward Tribunal through Primary and District Courts to High Court.
|
5 December 1997 |
|
Default judgment granted where defendant failed to file a timely application to defend; principal reduced for partial payment.
* Civil procedure – Default judgment – Order XXXV, Rule 2(a) – requirement to file application to defend within prescribed time; mere possession of an unfiled application insufficient.
* Civil procedure – Delay and laches – unexplained six-month delay justifies entry of judgment.
* Quantum – credit for part payment – reduction of principal sum by amount paid after suit was filed.
|
4 December 1997 |
|
Failure to file a mandatory application to defend within the prescribed time warranted judgment for the plaintiff, with deduction for partial payment.
* Civil Procedure – Order XXXV, Rule 2 CPC – mandatory requirement to apply for leave to defend within prescribed time – document not filed is not compliance.
* Filing formalities – drawing up but not filing a document does not constitute filing or payment of required fees.
* Extension of time – delay of over six months and inadequate instruction to counsel not sufficient cause to grant further time.
* Relief – court entered judgment for plaintiff but reduced principal sum to account for partial payment by defendant.
|
4 December 1997 |
|
Default judgment under Order XXXV CPC was granted where the respondent failed to file a timely application to defend; part payment credited.
Order XXXV CPC – summary procedure – mandatory filing of application for leave to defend within 21 days; unfiled document not effective as filing; unexplained delay and late instruction of counsel insufficient to avoid default judgment; credit for part payment allowed.
|
4 December 1997 |
|
Application for judgment by admission refused; disputed balance must be tried and interest may not be proved by affidavit.
Civil procedure — Order XII, Rule 4 CPC — Judgment on admissions — Scope of admissions in pleadings; appellate observations do not substitute for explicit admission or determination of amount. Proof of interest — affidavit — being abroad not sufficient; exceptional circumstances required. Ex parte relief — Order IX, Rule 6 CPC where defendant served but absent.
|
4 December 1997 |
|
Court refused judgment on admission where defendant admitted a contract but disputed the outstanding balance and interest affidavit.
* Civil procedure – Order XII, Rule 4 CPC – judgment on admission – admission of contract does not equal admission of outstanding sum
* Pleadings – distinction between admitting existence of contract and admitting liability for claimed balance
* Evidence – proof of interest by affidavit requires evidential basis; exceptional circumstances only
* Procedural alternatives – judgment on lesser admitted sum; ex parte procedure under Order XI, Rule 6 CPC
|
4 December 1997 |
|
Application for judgment by admission refused because defendant did not admit the full sum claimed.
Civil procedure – judgment on admission (O.XII r.4 CPC) – requirements for application – facts must be admitted so as to leave no bona fide dispute as to the sum claimed; admissions of contract do not automatically admit precise outstanding sum. Procedure – alternative remedies – O.XI r.6 ex parte judgment where defendant in default. Evidence – interest and costs require proof; affidavit alone insufficient without basis.
|
4 December 1997 |
|
Acquittal on large-sum theft upheld for lack of proof; conviction affirmed for household theft and conditional discharge replaced with fine and compensation.
* Criminal law – Theft – Proof of ownership and possession – Acquittal upheld where prosecution failed to prove ownership of alleged stolen sum. * Criminal law – Theft – Defendant’s claimed intention to return found money – rejected where evidence showed removal from wardrobe and retention rather than surrender. * Sentencing – Conditional discharge under s.34(1) Penal Code – appealable if unduly lenient; court may substitute fine and compensation with imprisonment in default. * Procedure – Inaccurate particulars in charge-sheet do not excuse prosecutorial failure to prove ownership and possession.
|
3 December 1997 |
|
Dispute over purchase of land and unpaid balance was a civil matter; conviction for obtaining by false pretences quashed.
Criminal law – Offence of obtaining money by false pretences – Whether prosecution proved false representation and intent to defraud beyond reasonable doubt – Transaction involving purchase of land changed leading to civil rather than criminal dispute.
|
2 December 1997 |
|
Familiar victims’ face‑to‑face identification sustained robbery convictions; restitution timing clarified to allow execution while convicts are imprisoned.
* Criminal law – Robbery with violence – visual identification by familiar victims during prolonged face‑to‑face assaults – standards for reliability.
* Criminal procedure – Conviction safety where identification challenged on grounds of lighting and shock.
* Restitution – execution of compensation order while convicted persons are in custody; timing and effect of limitation period.
|
2 December 1997 |
|
Identity evidence was held reliable; conviction and 15‑year sentence upheld; restitution timing clarified for execution.
Criminal law – Robbery with violence – Visual identification – Requirements for reliable identification (known assailants, illumination, ample time, prompt reporting); Conviction and sentence – appropriateness of 15 years; Restitution – timing and execution of compensation orders against imprisoned convicts (distress in prison or execution upon release; commencement of limitation period).
|
2 December 1997 |
|
|
2 December 1997 |
|
Court upheld robbery-with-violence conviction based on reliable identification despite minor procedural exhibit error.
Criminal law – Robbery with violence – Identification of accused and property – Admissibility of exhibit despite procedural irregularity – Veterinary receipts insufficient to prove lawful acquisition – Conviction upheld.
|
2 December 1997 |
Civil Practice and Procedure - Appeals - Application for stay of execution pending appeal- Decision sought to be stayed not accompanying the application - Application incompetent |
1 December 1997 |
|
Section 160 inapplicable where cohabitants were knowingly married to others; trial court misdirected on proof and valuation.
* Family law – Cohabitation vs. presumption of marriage – s.160 Law of Marriage Act – presumption requires parties to have capacity to marry; knowingly adulterous cohabitation does not trigger s.160.
* Civil procedure – standard and burden of proof – plaintiff must prove financing/joint venture; court may not shift burden improperly.
* Evidence – valuation and site visits – court cannot substitute expert valuation with speculative figures from observation.
* Property disputes – inappropriate invocation of matrimonial remedies where legal prerequisites absent; alternative remedies (joint venture) available.
|
1 December 1997 |
|
Applicant cannot invoke s.160 to divide property where cohabitation was knowingly adulterous and no presumption of marriage existed.
Family law; Law of Marriage Act s.160 – presumption of marriage; adultery and capacity to marry; burden and standard of proof in civil claims; division of property; unsupported valuation; alternative remedies for alleged joint venture.
|
1 December 1997 |
|
|
1 December 1997 |
| November 1997 |
|
|
Appellant failed to prove land claim; lower courts correctly dismissed suit, appeal dismissed with costs.
Land dispute — proof of title and possession; failure to call key witness/custodian — evidentiary consequence; inheritance evidence supporting title; appellate review of concurrent factual findings.
|
28 November 1997 |
|
Recent possession of stolen goods and admissible confessions upheld convictions for burglary, stealing and conspiracy.
Criminal law – Confessions and cautioned statements – Admissibility and weight; Doctrine of recent possession – possession of identified stolen goods as evidence of burglary/stealing; Evidence – recovery of breaking instruments and identification of goods; Conviction for conspiracy, burglary and stealing upheld.
|
28 November 1997 |
|
Appeal dismissed: confessions, recent possession and recovered items sufficiently supported convictions for burglary, stealing and conspiracy.
* Criminal law – Confession and cautioned statements – Retraction and voluntariness – Admissibility and weight.
* Criminal law – Recent possession – Recovery and identification of stolen property – Evidence supporting burglary and stealing.
* Criminal law – Possession of break-in instrument – Corroboration of involvement in burglary.
* Criminal law – Conspiracy to steal – Joint liability assessed on confessions and corroborative evidence.
|
28 November 1997 |