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Citation
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Judgment date
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| December 1999 |
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Sentencing without a recorded conviction and judgment is unlawful and renders proceedings a nullity; retrial denied on justice grounds.
Criminal procedure – Judgment and conviction – Requirement under sections 311 and 312 Criminal Procedure Act to record conviction and deliver judgment before sentencing; sentencing without recorded conviction unlawful; fundamental procedural irregularity renders proceedings a nullity; retrial discretionary where interests of justice considered.
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30 December 1999 |
Civil Practice and Procedure - Status Quo — Order to maintain status quo - Whether the order has moreforce in terms ofduration than would a normal temporary injunction - Order XXXVII, rule 3 of the Civil Procedure Act 1966. |
28 December 1999 |
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An assignee who has not received property by endorsement of bills of lading lacks locus standi to sue on them.
Bills of lading – Assignment – Endorsement required to transfer property and right to sue – Assignee without endorsement has no locus standi; foreign plaintiff – security for costs procedural under Order XLIII; choice‑of‑law/forum clause does not automatically oust local jurisdiction.
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20 December 1999 |
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Government termination of negotiated provisional tender without hearing and with inconsistent reasons was quashed; re‑floated tender set aside.
* Administrative law – judicial review – procurement decisions by public bodies – amenability to review where no concluded contract exists. * Procedural fairness – right to be heard – denial of hearing before termination of provisional award. * Legitimate expectation – protection where applicant relied on provisional award and negotiations. * Bias and abuse of discretion – re‑floated tender designed to exclude previous provisional awardee. * Remedies – certiorari, prohibition and mandamus granted.
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17 December 1999 |
Administrative Law - Judicial review - Procedure - Preliminary Objection not raised at the hearing of the application for leave to apply for prerogative orders - Whether the objection may be raised subsequently against the application for the orders. Judicial Review - Acts amenable to judicial review — Complaint arising from contract - Relationship between applicant and respondent being contractual — Whether acts arising from that relationship are amenable to judicial review. Natural Justice - Right to be heard - Tender awarded to applicant and then the award process is unilaterally terminated - Whether applicant was entitled to a hearing before termination. Natural Justice - rule against bias - Deputy Minister stating in Parliament that tender was improperly awarded to applicant and a fresh tender will be floated to award it to another person in a more transparent manner - Whether the statement creates bias against the applicant in the fresh tender process. |
17 December 1999 |
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Failure to refer matrimonial dispute to Conciliation Board renders resulting divorce incompetent; revisional jurisdiction requires diligence.
Matrimonial law – requirement to refer disputes to Conciliation Board – failure renders divorce incompetent; Revision and inherent jurisdiction – not strictly time‑barred but subject to diligence and absence of laches; Division of matrimonial property – must comply with statutory provisions, court must effect a judicial and practicable division.
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16 December 1999 |
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Appeal dismissed: permanent stream and physical markers, supported by locus inspection and admissions, establish the boundary and show encroachment.
* Land law – boundary dispute – whether a permanent watercourse or a shifting stream determines the boundary – role of physical markers (coconut palm) and locus in quo inspection in boundary determination.
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15 December 1999 |
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Remitting a disciplinary matter for rehearing is not a definitive success and does not automatically attract costs.
Administrative law – certiorari – remittal to disciplinary board for rehearing – whether remittal constitutes success attracting costs; Procedural law – correctness of drawn orders vis-à-vis delivered rulings; Costs – discretionary award when matter remitted; Ultra vires – disciplinary punishment declared ultra vires.
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12 December 1999 |
Civil Practice and Procedure - Application for temporary injunction - Order ' 37, rule 2 of the Civil Procedure Code 1966. Trade Mark - Infringement of trademark both parties manufacturing or dealing in similarly branded items from different counties - Sections 31 and 32 of the Trade and Service Marks Act 1986. |
10 December 1999 |
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10 December 1999 |
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Applicant's challenge succeeds: out-of-time referral to Conciliation Board rendered Board and Ministerial decisions null and void.
Labour law – limitation – statutory 14-day referral period to Conciliation Board – time-bar jurisdictional and mandatory; procedural fairness – failure of Board to decide preliminary jurisdictional point renders subsequent proceedings nullity; certiorari to quash administrative and ministerial decisions.
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7 December 1999 |
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3 December 1999 |
| November 1999 |
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A court must not use inherent power to override statutory limitation periods and should raise time‑bar objections suo motu.
Civil procedure – appeals – limitation period – court may and should raise limitation point suo motu where appeal filed out of time; Inherent jurisdiction – court’s inherent power (s.95) cannot be used to override express statutory provisions; Procedural law – objections as to limitation may be raised by parties during submissions and may be decisive.
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30 November 1999 |
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Trial court judgment failed to comply with assessor-recording rules; matter ordered reheard de novo with fresh assessors.
Procedure — Trials with assessors — Requirement to consult assessors and to record majority decision and any dissent in accordance with GN No.2 of 1988 — Failure to address framed issues or to comply with GN renders document no judgment and warrants rehearing de novo.
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19 November 1999 |
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Application to stay execution and set aside a consent order dismissed as res judicata and abuse of process.
Civil procedure – stay of execution – application to set aside consent order – consent settlement recorded in presence of parties – res judicata – abuse of court process – defective counter-affidavit does not automatically entitle applicant to relief.
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18 November 1999 |
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Trial court erred by entering judgment on counsel's submissions without evidence; matter remitted for ex parte oral proof.
* Civil procedure – ex parte proceedings – trial court erred in entering judgment on written submissions without oral evidence. * Defamation and false imprisonment – claims must be proved by evidence, not submissions. * Judicial discretion – awards must be based on evidence and reasoned analysis. * Remedy – setting aside ex parte judgment and remittal for oral evidence before a different magistrate.
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18 November 1999 |
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Plaintiff must plead and prove nexus or insurance contract; demand letters or vehicle proximity alone do not disclose a cause of action.
Cause of action – disclosure – Order VII r.11 CPC; vehicle owner liability – mere proximity insufficient; requirement to plead particulars of negligence; improper joinder where employment/ownership unproved; insurer liability – demand letters insufficient, must plead/prove insurance policy.
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18 November 1999 |
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Interrogatories seeking legal conclusions about alleged duress are an impermissible fishing expedition; application refused with costs.
Civil procedure — Order XI Rules (1) & (2) — Interrogatories — Scope and limits — Cannot seek legal conclusions or core evidential facts — No fishing expeditions — Timing and potential for witness interference relevant — Application refused.
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4 November 1999 |
| October 1999 |
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Applicant must identify and disclose the specific point of law before High Court can certify leave to appeal from primary court matters.
Appellate jurisdiction – s.5(2)(c) Appellate Jurisdiction Act – appeals from primary courts – requirement that High Court certify and pinpoint a point of law – applicant’s duty to disclose the point of law – insufficient to assert chances of success without specifying legal issue.
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26 October 1999 |
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High Court lacks power to extend Court of Appeal filing period; applicant's delay and ignorance insufficient, application dismissed.
Court of Appeal Rules — Rule 8 (extension of time) — meaning of "Court" — power to extend time vests in Court of Appeal, not High Court; delay and ignorance of law not adequate grounds for extension; chamber summons dismissed for want of jurisdiction.
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7 October 1999 |
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A High Court becomes functus officio after refusing leave for judicial review and cannot grant interim relief pending appeal.
Judicial review – leave to apply for prerogative orders – effect of refusal of leave; functus officio – jurisdiction to grant interim relief pending appeal; appeal as renewal of leave application; inherent jurisdiction and Supreme Court Practice (1993).
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5 October 1999 |
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Buyer’s repeated non‑payment was a breach; seller lawfully rescinded sale and recovered vacant possession; appeal dismissed with costs.
* Contract law – sale of property – buyer’s persistent non‑payment of outstanding purchase price constitutes breach of contract. * Remedies – seller entitled to elect between suing for the unpaid balance or rescinding the contract and reclaiming vacant possession. * Appellate review – appellate court’s dismissal of buyer’s appeal for non‑payment upheld.
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1 October 1999 |
(From the decision ofthe Registrar ofTrade and Services Marks at Dar es Salaam) Trade Marks — Application for removal of trademark from the register - Locus standi - Aggrieved party - Section 36 of Trade and Service Mark Act p 1986. Trade Marks — Protection of trademarks - Paris Convention of 20 March 1883, articles 2, 7 bis, 9, 10,10 bis, 10 ter and 22.2 - United Kingdom and Tanzania are parties.Trade Marks — Application signed by advocate - Application by body corporate - Acceptance of application by the Registrar. Trade Marks - Ruling signed by one officer only — Section 4 of the Trade and F Service Mark Act 1986 |
1 October 1999 |
| September 1999 |
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24 September 1999 |
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Primary court's award of land possession upheld where credible witness proved a gift; appellate reversal set aside.
Land law – possession – evidence of gift by deceased owner witnessed by ward chairman – credibility of PW2 – appellate interference with trial court findings – proper defendant/estate administrator as remedy.
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22 September 1999 |
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Employee lawfully dismissed for refusing a lawful extra duty after fair disciplinary process.
Employment law – dismissal for insubordination; disciplinary procedure – notice and opportunity to be heard; tribunal composition and bias; lawfulness of employer’s order to perform extra duties.
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21 September 1999 |
[Consolidated with Misc. Civil Causes Nos. 146,147,148,149,150,151,152,153, and 154 by order of the court dated 16 July 1999] Civil Practice and Procedure - Preliminary Objection — Contents thereof Civil Practice and Procedure - Locus standi - Evidence conferring locus standi. Company law - Provisional liquidator - Appointment ofprovisional liquidator - What the court should consider in exercising its discretion to appoint a provisional liquidator. Company law — Provisional liquidator — Scope of the powers of a provisional liquidator. Company law - Provisional liquidator - Stands in the position of a trustee - Need to have no conflict of interests |
20 September 1999 |
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The court appointed a neutral provisional liquidator with broad investigatory and restructuring powers, disqualifying conflicted nominees.
• Company law – appointment of provisional liquidators after presentation of winding-up petitions – Court’s broad discretion to define powers, including formulation of scheme of arrangement.• Company law – conflict of interest – prior advisers/agents or persons with business connections to the company disqualified as provisional liquidators.• Civil procedure – locus standi of creditors and contingent guarantors who file notices and affidavits to appear.• Insolvency procedure – provisional liquidator’s duties: full investigation, inventory and preservation of assets, list of creditors, statement of affairs, proposal of scheme, and timetable.• Remuneration – provisional liquidator’s fee not fixed by percentage of gross realisation; to be proposed and approved by Court.
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20 September 1999 |
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14 September 1999 |
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Court set aside dismissal and ex‑parte judgment after accepting applicant’s credible excuse and allowed enlargement of time under section 93.
* Civil procedure – Enlargement of time under section 93 CPC – Application to set aside dismissal for absence and ex‑parte judgment – Competency of remedy under section 93.
* Setting aside ex‑parte judgment – Requirement to show absence was not due to negligence or lack of seriousness – Court acceptance of applicant’s excuse.
* Costs – ordered in the cause.
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14 September 1999 |
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Without letters of administration the plaintiff lacked locus standi; section 88(1)(b) directions are not a grant.
* Probate law – administration of estates – section 88(1)(b) directions do not constitute a grant of probate or letters of administration. * Civil procedure – locus standi – party must show statutory authority to sue as administrator. * Administrator General’s Ordinance cannot substitute for formal grant of administration in conferring litigation powers.
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10 September 1999 |
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Appellant failed to rebut evidence of joint acquisition; respondent entitled to half the value of the house and plot, appeal dismissed with costs.
* Family law – division of matrimonial property – proof of joint acquisition – credibility of witnesses and admissibility of hearsay evidence; entitlement of child born during the marriage to share in matrimonial assets; valuation and division of house and plot.
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8 September 1999 |
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Counsel’s negligence and mere prospects of success do not constitute sufficient cause for an extension of time to appeal.
Civil procedure — Extension of time — Whether counsel’s negligence amounts to sufficient cause; prospects of success not alone sufficient; delay and non-compliance with filing schedules material.
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8 September 1999 |
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Whether an alleged child must prove legitimacy to qualify as estate administrator under Islamic law; failure warrants revocation.
Inheritance/estate administration – legitimacy (born in wedlock) as qualification to act as administrator under Islamic law – onus on claimant to prove legitimacy – failure to prove legitimacy justifies revocation of administrator appointment.
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2 September 1999 |
| August 1999 |
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Court granted extension of time to appeal where prior counsel’s mistakes caused the delay; appeal to proceed without undue delay.
* Civil procedure – Extension of time – Whether delay caused by previous counsel’s incompetence amounts to sufficient cause for extension; * Appeal procedure – Correct statutory route for extension (Law of Limitation Act v Magistrates Courts Act) – procedural objections and discretion to extend time; * Exercise of judicial discretion – balancing undue delay against interests of justice.
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27 August 1999 |
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Suit dismissed because leave was required to sue and the statutory receiver’s powers vested the first defendant’s assets and liabilities in the receiver.
Public Corporations Act – appointment of statutory receiver (PSRC) – powers akin to official receiver under Bankruptcy Ordinance – leave required before suing for claims provable in bankruptcy; Reliefs inconsistent with statutory restructuring powers – specific performance and injunctions against actions by receiver; Cause of action – assets and liabilities vested in receiver negates remedy against original corporate entity.
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27 August 1999 |
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18 August 1999 |
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An appellant’s conviction based solely on an uncorroborated co-accused’s statement was held unsafe and quashed.
Criminal law – Evidence – Conviction based on co-accused's uncorroborated statement – Where evidence is one accused against another independent corroboration required; failure to call available corroborative witness renders conviction unsafe.
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10 August 1999 |
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Lease renewal required mutual agreement; applicant entitled to vacant possession and Shs.50,000,000 damages for respondents' occupation.
* Property/Lease – Construction and interpretation of lease renewal clause; renewal required mutual agreement on terms. * Contract law – offer, acceptance and consideration; tender assessed as firm offer not ‘without prejudice’ to renewal right. * Remedies – entitlement to vacant possession where no subsisting lease; assessment and award of general damages for unlawful occupation. * Procedure – dismissal of counter-claim where no contractual basis for relief.
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9 August 1999 |
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9 August 1999 |
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Failure to show irreparable, uncompensable loss or entitlement to reinstatement justified refusal of a temporary injunction.
Civil procedure – interlocutory relief – temporary injunction – requirements: irreparable harm and inadequacy of damages – expenditure on improvements – whether loss is compensable by damages – injunction that would effectively restore a terminated agreement.
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6 August 1999 |
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Leave to appeal refused for late filing and failure to attach the judgment as required by Rule 46(3).
Appellate procedure — Rule 43(a): leave to appeal must be filed within 14 days of the decision; Rule 46(3): mandatory requirement to attach copy of judgment or order to an application for leave to appeal; non-compliance is fatal.
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6 August 1999 |
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Primary Court judgment unsigned by all members is invalid; proceedings and appeal nullified and retrial ordered.
Primary Courts – Judgement of Court – Requirement that judgment be signed by all members (Rule 3(2) GN. 2/88) – Non-compliance renders judgment invalid; incurable irregularity; downstream proceedings and appellate decision declared nullity; retrial before different magistrate and assessors.
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5 August 1999 |
| July 1999 |
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Failure to furnish particulars and filing an amended plaint without leave led to dismissal with costs.
Civil procedure – failure to comply with court order to furnish further particulars – non-compliance with Order VII r.4 – amended plaint filed without leave – contravention of Order VI r.17 – dismissal for procedural non-compliance and non-prosecution – costs awarded.
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30 July 1999 |
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Under summary procedure the applicant must disclose substantive triable issues, not mere afterthoughts, to obtain leave to defend.
Summary procedure – leave to appear and defend – applicant must disclose substantive triable issues not a sham defence; dishonoured bills of exchange – agreement as background; pleading of consideration and notice of dishonour; misjoinder allegation rejected.
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30 July 1999 |
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Applicant failed to disclose triable issues under summary procedure; leave to defend denied and judgment entered for the plaintiff.
* Summary procedure — leave to appear and defend — applicant must disclose substantive triable issues, not a sham defence. * Bills of exchange — cause of action founded on dishonoured bills and notice of dishonour. * Pleadings — sufficiency of allegation of consideration and description of defendant. * Misjoinder objection — where annexed agreement is background, misjoinder objection may fail.
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30 July 1999 |
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Failure to comply with statutory service requirements under the Local Government Act renders the suit against the local authority unmaintainable.
Local Government Act s.97 – statutory service on local authorities mandatory; non-compliance renders suit unmaintainable; service on Chief Government Valuer insufficient; misjoinder of defendant is curable.
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29 July 1999 |
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Claim for wrongful termination dismissed as time-barred; limitation accrues when complete cause of action arises.
Limitation law – Law of Limitation Act (1971) – six-year period for contractual claims – accrual of cause of action – computation where conflicting termination dates – effect of notice and defendant's reply on running of limitation period.
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27 July 1999 |
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An agent/facilitator is not liable for principal’s obligations absent allegations of fraud; plaintiffs should sue the principal.
Agency — liability of agent/facilitator — payments made by agent on authority of committee — whether agent can be sued for principal’s obligations; absence of pleaded fraud by agent — misappropriation by company director does not implicate facilitator; cause of action and proper defendant (principal/Government); leave to appeal on point of law.
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23 July 1999 |
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Whether a court may review its own ex parte judgment and whether leave to appeal requires only an arguable case.
Civil procedure — Review of ex parte judgment — Whether there was an application for review; whether court can review its own decision in circumstances; leave to appeal — sufficiency of an arguable case — certification of points of law for appeal.
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22 July 1999 |