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Citation
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Judgment date
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| December 2001 |
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Court limited to appointing administrators; distribution of estate assets is the administrators' exclusive duty, not a court or clan meeting function.
Administration of estates – role of the court limited to appointing or recognising administrator – collection and distribution of estate assets are functions of the administrator, not for the court to allocate – distributions convened by non-administrators are unlawful.
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14 December 2001 |
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Reported
Criminal Practice and Procedure - Charges - Charge alleging an offence against
a statutory provision that does not exist — Proceedings null and void.
Immigration - Charges - Person charged with and convicted ofan immigration
offence that does not exist under the law - Proceedings null and void. |
13 December 2001 |
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Applicant entitled to TZS 99,286,000 refund and USD 390,000 payment for undelivered and unpaid maize, with interest and costs.
Contract law – sale and delivery of goods – failure to deliver paid-for goods; credit sale – unpaid purchase price; admissibility of documentary and secondary evidence; ex parte judgment – defendant defaulting; award of interest and costs.
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13 December 2001 |
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Proceedings presided over by a magistrate without jurisdiction are null and the resulting appeal cannot stand.
* Magistrates' Courts – Jurisdiction – Resident Magistrate's Court properly constituted only when presided by a Resident Magistrate – proceedings conducted by a magistrate without jurisdiction are nullities. * Supervisory powers – High Court’s power under s.44(1)(b) to quash and set aside proceedings conducted without jurisdiction. * Appeals – appeal from null proceedings is untenable.
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12 December 2001 |
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Proceedings before an improperly constituted magistrate are null; jurisdictional defects may be raised at any stage.
Magistrates' Courts Act s.6(1)(c) – court of resident magistrate must be presided by resident magistrate; improper constitution deprives court of jurisdiction – lack of jurisdiction is fundamental and incurable – jurisdictional defects may be raised at any stage – proceedings heard by improperly constituted magistrate are nullity.
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10 December 2001 |
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5 December 2001 |
| November 2001 |
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Purchase from a person lacking letters of administration does not transfer good title; sale of estate property was void and appeal dismissed.
* Probate and administration – sale of estate property – authority to sell – letters of administration required to validly dispose of estate assets. * Property law – bona fide purchaser – purchase from person lacking authority does not confer good title. * Civil procedure – stay of execution – refusal justified where sale of estate property is void ab initio.
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15 November 2001 |
| October 2001 |
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Taxation: instruction fees based on annexed documents allowed; unsupported 50% uplift and duplicate receipt disallowed; costs taxed TShs.114,720,120.
Civil procedure – taxation of bill of costs; instruction fees – use of annexures’ pecuniary value where amount not pleaded; Rule 40 & Schedule XI – residuary head (para 1(h)) vs fixed head (para 1(j)); disallowance of unsupported percentage uplift; disbursements evidenced by duplicate receipt disallowed; unreceipted transport/copying costs may be allowed if reasonable over long period.
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24 October 2001 |
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Applicant awarded US$104,467, interest, costs and TShs.20,000,000 damages for respondent's breach; recovery expenses not awarded.
* Contract law – breach for non‑payment of contractual balance and retention – entitlement to unpaid contract monies, interest and costs. * Civil procedure – ex parte judgment where defendant served but fails to appear. * Damages – assessment of general damages for breach; refusal to award unproved recovery expenses.
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19 October 2001 |
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Court found defendant's article defamatory and awarded Shs.14,000,000 general damages, costs and 7% interest.
Defamation — publication and defamatory meaning; assessment of general damages in defamation — factors include nature of the allegation, plaintiff's social standing and publication circulation; ex parte judgment where defendant absent; evaluation of credibility and embellishment of damages evidence.
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18 October 2001 |
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Appellant entitled to unpaid terminal benefits from second respondent for 1983–May 1995; other claims dismissed.
* Employment law – continuous employment – successive renewal of short-term contracts may constitute permanent/continuous employment for terminal benefits. * Employment law – terminal benefits – employer liability for unpaid severance/notice where Commissioner’s direction not discharged. * Employment law – repatriation/subsistence allowance – obligation arises only where employee recruited from outside place of work (s.53 Employment Ordinance). * Procedural – Labour Officer’s advisory role does not absolve employers of obligations.
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17 October 2001 |
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Application for leave to appeal dismissed: preliminary objections on jurisdiction, pleading deficiencies and verification were correctly overruled and were unmeritorious.
Civil procedure — Pecuniary jurisdiction — Whether claimed amount falls within resident magistrate’s court limit; Pleadings — Essential particulars required in plaint; Verification clause — Trivial/curable defects and amendment under Order VI r.15; Leave to appeal — requirement of arguable question of law.
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10 October 2001 |
| September 2001 |
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Court permitted adoption where surviving parent's consent and favourable guardian ad litem report established best interests and adopter's fitness.
* Adoption — fitness of adopter — court’s inquiry and Guardian ad Litem report as evidence of best interests. * Adoption — consent of surviving parent where other parent deceased. * Adoption — registration by Registrar-General and costs of application.
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27 September 2001 |
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Court reduced taxed legal fees, enforcing the Advocates' Remuneration Rules and rejecting devaluation as justification for higher fees.
* Taxation of costs – application under Rule 5 Advocates' Remuneration and Taxation of Costs Rules, 1991 – adherence to statutory tariff. * Instruction fees – application of Schedule IX and percentage rates relative to assessed suit value. * Attendance fees – Shs.750/= per 15 minutes or part thereof; aggregation of multiple short appearances. * Currency devaluation – not a lawful ground to depart from statutory fee scales.
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27 September 2001 |
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Court granted an interim injunction restraining the defendant from unilateral control, financial dealings, staff appointments and contracts pending the main suit.
* Interim injunction – grant where applicant’s affidavit establishes case – restraints on management and financial dealings of a company pending suit
* Company management – prohibition on unilateral control, staff appointments, contracts and bank transactions
* Access to information – right of co-party to company records pending litigation
* Unopposed applications – court may hear and grant where defendant duly served but fails to appear
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20 September 2001 |
| August 2001 |
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Plaintiff's land claim dismissed as time‑barred and for failure to plead a clear cause of action and to amend pleadings.
Limitation law – accrual of cause of action; Law of Limitation Act 1971 (torts – three years) – continuing trespass does not automatically toll limitation; Civil Procedure – pleadings must disclose material facts to show a cause of action; Order VII r.6 exemption requirement; scheduling/pre‑trial orders and amendment of pleadings.
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30 August 2001 |
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Allegations of fraud in a foreign judgment must be raised in the originating court; registration under Section 4 of Cap 8 was proper.
* Foreign judgments – Registration – Whether Section 4 of Cap 8 (Foreign Judgments (Reciprocal Enforcement) Ordinance) applies to judgments from Zanzibar – GN No. 8 of 1966 extends Part I to protected territories including Zanzibar. * Jurisdiction – Whether a registration court may adjudicate allegations that the original foreign judgment was obtained by fraud – Held: such allegations are for the originating court. * Statutory construction – Distinction between Cap 8 (reciprocal enforcement) and Cap 7 (transfer/execution of decrees and endorsement of warrants).
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28 August 2001 |
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Third-party payment improperly admitted as evidence; conviction for theft by agent quashed and appeal allowed.
* Criminal law – Theft by agent – Admissibility of evidence – Third-party payment tendered in court to settle outstanding debt – Irrelevance of such payment to proof of criminal theft. * Evidence – Improper reception of an extraneous exhibit by an appellate court – Misapplication of evidence vitiating conviction. * Appeal – Quashing of conviction and sentence where appellate reversal substantially based on improperly admitted evidence.
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27 August 2001 |
Human rights - Provisions oflaw relating to human rights -Need to be construed liberally, with elasticity and not restrictively or rigidly — Compliance with legal requirements necessary. Civil Practice and Procedure — Preliminary objection - Petition incompetent because not accompanied by originating summons - The complaints in the petition are not proper matterfor suit under the Basic Rights and Duties Enforcement Act — Seventh respondent wrongly sued in his personal capacity. Constitutional law - Basic Rights and Duties - Enforcement of basic rights F under the Constitution - Acts complained of constituting ordinary crimes and torts that can be prosecuted in ordinary Courts - Petition under the Basic Rights and Duties Enforcement Act 1994 improper. |
22 August 2001 |
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Reported
Landlord and Tenant - Period of rent payable - Lease states the amount ofrent
payable per square metre but does not state whether per month or per
annum - Determination of period of rent.
Landlord and Tenant - Lease - Notice to terminate lease - Receipt of rent due
after issue of notice to terminate lease - Whether receipt of rent by the
lessor after notice of termination is issued operates as waiver ofthe notice.
Civil Practice and Procedure - Pleadings - Matter not pleaded — Whether Court
may decide a matter which was not pleaded.
Stamp Duty - Obligation to pay stamp duty - Lessor pays stamp duty on a lease
instead of the lessee - Whether the lessor may recoverfrom the lessee the
amount paid as stamp duty. |
22 August 2001 |
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21 August 2001 |
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Registered owner prevails where employer lacks contemporaneous documentary authorisation to claim purchased property.
Property law – ownership of property purchased with employer’s funds but registered in employee’s name; requirement for contemporaneous written authorisation or corporate records to rebut registered title; probative weight of long unexplained delay before claiming ownership.
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21 August 2001 |
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Ex parte judgment for unpaid petroleum invoices; statutory 7% interest awarded because commercial rate was unproven.
* Commercial law – recovery of price for goods supplied; invoices and acknowledgment letter as proof of debt. * Civil procedure – ex parte proof permitted where defendant fails to file defence (Order VIII r.14(2)(b) CPC). * Interest – claimant’s commercial rate not proven; statutory 7% per annum under Order XX r.21 awarded. * Costs – awarded to successful plaintiff.
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17 August 2001 |
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Court allowed decree holder’s bill of costs, sustaining instruction fees and total sum as fair, reasonable and within the prescribed scale.
* Taxation of costs – bill of costs covering 24 items – whether amounts claimed are reasonable and within prescribed scale. * Instruction fees – allowance and sustenance of substantial instruction fees as part of taxable costs. * Procedure – ex parte taxation following debtor’s default; temporary misplacement of record does not vitiate taxation. * Registrar’s ruling read in absence of parties with notice; parties entitled to copies.
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17 August 2001 |
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An application to set aside a dismissal is refused where the applicant's counsel deliberately held a brief in another court.
* Civil procedure – Setting aside dismissal – Order IX r.8 – Inexcusable absence of counsel – Holding a brief in another court is not a sufficient excuse – Application dismissed with costs.
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17 August 2001 |
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Accused acquitted where unreliable night-time visual identification and corroborated alibi failed to prove murder beyond reasonable doubt.
Crime — murder — visual identification — Waziri Amani principle — identification at night under torchlight and fear — delayed naming and lack of description — corroborated alibi — failure to prove guilt beyond reasonable doubt.
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10 August 2001 |
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A voluntary labour agreement becomes operative three months after submission, so pre-implementation suits are not res judicata.
Industrial Court Act s.39(4) – proviso: voluntary labour agreement becomes operative three months after submission for registration – effect on jurisdiction and res judicata – retrenchment occurring before agreement became operative.
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9 August 2001 |
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The applicant’s conviction was quashed due to a charge–judgment discrepancy and insufficient evidence of dangerous driving.
* Road Traffic offences – distinction between careless driving (s.40) and dangerous driving (s.41) – conviction must accord with the charge. * Evidence – opinion evidence as to speed/dangerous driving insufficient without factual foundation. * Negligence/sudden emergency – sudden crossing by third party may absolve or mitigate driver’s culpability; appellate intervention where conviction unsafe.
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2 August 2001 |
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Whether leave to file for certiorari and mandamus may be struck out for failure to comply with a court-ordered filing deadline.
Prerogative orders – leave to apply for certiorari and mandamus – court-ordered filing deadlines – non-compliance – leave to file out of time – application to strike out leave; administrative fairness – challenge to tender award.
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1 August 2001 |
| July 2001 |
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Substituted service by newspaper publication without court authorization or proof personal service was impossible is invalid; appeal dismissed.
Civil procedure — Service of process — Substituted service by publication — Rule 19 Primary Courts Civil Procedure Rules, 1964 — Court authorization and evidence that personal service is impossible required; failure renders substituted service invalid. Procedural irregularity under GN 2/1988 — Proceedings nullified and retrial ordered. Time‑bar issues — leave to appeal out of time can validate late appeals.
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26 July 2001 |
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Court struck out the State and the Police Force for lack of disclosed cause of action and incapacity to be sued.
Civil procedure – preliminary objections – whether plaint discloses cause of action against the State; capacity of a public body (Police Force of Tanzania) to be sued; vicarious liability – absence of allegation that private defendants acted on State instructions.
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16 July 2001 |
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Whether some employees' evidence can bind non‑testifying colleagues and whether a stay‑on request extends continuous employment.
Employment law – admissibility and effect of evidence‑by‑some employees on rights of non‑testifying employees in absence of representative suit; effect of employer’s request to remain beyond termination date on continuity of employment and entitlement to revised pay rates – certification of points of law for appeal.
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13 July 2001 |
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Court set aside an inadequate monetary award and awarded the appellant one matrimonial house for equal protection and fair division.
Family law – division of matrimonial assets – Law of Marriage Act s.114 – court must assess period of marriage and contributions (including domestic services); BAKWATA recommendations limited to reconciliation and cannot substitute judicial application of law; equality before the law and CEDAW obligations relevant to fair distribution; monetary awards must be effective and executable.
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13 July 2001 |
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Where a prerogative order is sought against a public university, the Attorney General must be summoned; omission vacates the leave.
* Administrative law – prerogative orders – certiorari – requirement to summon Attorney General under section 17A(1) when proceedings are against the Government or public corporation.* Interpretation – public corporation/public officer – university classified as Government for purposes of joinder.* Civil procedure – review for error on face of the record – failure to implead mandatory party renders ruling voidable.
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11 July 2001 |
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A presidential "Nakubali" constitutes a decision; failure to give reasons can make retirement unlawful, but declarations were refused.
Administrative law – Presidential endorsement as decision ("Nakubali"); natural justice – duty to give reasons for adverse administrative decisions; retrenchment/public interest – court discretion to refuse declaratory reliefs where impracticable or contrary to public policy.
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11 July 2001 |
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Trivial witness discrepancies do not defeat credible evidence of grievous bodily harm; acquittal set aside and conviction entered.
Criminal law – Appeal against acquittal – Assessment of witness discrepancies – Minor variances in details do not destroy core credibility; medical evidence (P.F.3) establishing "dangerous harm" supports finding of grievous bodily harm – Acquittal set aside and conviction substituted.
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10 July 2001 |
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Convictions for robbery upheld; sentences increased to 30 years as pangas rendered the offences armed robbery under the Minimum Sentences Act.
Criminal law – Robbery with violence – Identification evidence in well-lit conditions and corroboration – Use of pangas constitutes armed robbery – Minimum Sentences Act applicable – Sentence substituted to mandatory 30 years – Juvenile status not established.
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3 July 2001 |
| June 2001 |
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Reported
Civil Practice and Procedure - Costs - Costs ofa suit -Award ofcosts ofa suit
where no prayerfor costs is made in the plaint - Whether award of costs
to the successful party is automatic
Civil Practice and Procedure - Precedent - Decisions by judges of the same
Court - Judges of the same Court not to give conflicting decisions. |
29 June 2001 |
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Injunction to restrain VAT recovery dismissed — incentives certificate did not prima facie exempt applicant from VAT.
Interlocutory injunctions; prima facie case and probability of success; irreparable harm; balance of convenience; certificates of incentives versus separate VAT legislation; restraint of public revenue collection.
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28 June 2001 |
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Mandatory T.shs.5,000,000 security for election petitions unfairly restricts access to justice and creates discriminatory exemption for the Attorney General.
Constitutional law — access to justice; mandatory security for costs in election petitions — excessiveness and arbitrariness of prescribed T.shs.5,000,000; equality before the law and discrimination by exempting the Attorney General; subsidiary rules cannot override clear statutory mandates; Parliament as judge in its own cause.
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28 June 2001 |
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Mandatory Tshs.5,000,000 security for election petitions is excessive, denies access to justice, and discriminates by exempting the Attorney General.
Elections law — security for costs — mandatory Tshs.5,000,000 deposit — access to justice and fair hearing — discrimination (Attorney General exemption) — subsidiary rules cannot override statute — remedial suspension giving Parliament time to rectify.
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28 June 2001 |
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An unparticularised counter-claim cannot defeat summary judgment; leave to defend requires prima facie triable issues.
* Civil procedure – Order 35 summary judgment – leave to appear and defend – applicant must show bona fide triable issues by affidavit and particularise facts supporting defence or counter-claim. * Mere unparticularised allegations (e.g. counter-claim, fraud, lack of consideration) insufficient to defeat summary judgment. * Admission of debt in affidavit undermines claim of a triable defence.
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28 June 2001 |
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Leave to defend summary suit denied where defendant admitted liquidated debt and failed to particularize a counter-claim.
* Civil procedure – Summary procedure (Order 35) – leave to defend – defendant must disclose bona fide triable issues with particularized facts; mere allegation of counter-claim insufficient. * Liquidated debt – admission of indebtedness entitles plaintiff to summary judgment absent a specific, supported defence. * Affidavits in summary proceedings – requirement of particularity to show prima facie triable issue.
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28 June 2001 |
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An application to tax costs was dismissed because the earlier ruling made no order for costs, rendering taxation misconceived.
* Costs — taxation — where the originating judgment contains no order for costs, an application to tax costs is misconceived and will be declined.
* Civil procedure — delay and non-appearance — long unexplained delay and prior ex parte proceedings may warrant dismissal; valid service of taxation notices is requisite.
* Costs — items not arising from High Court proceedings are not properly taxable at High Court taxation.
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25 June 2001 |
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Mere presence and a lone eyewitness account do not safely establish wilful arson; conviction quashed.
Criminal law – Arson (setting fire to crops) – Whether mere presence at scene and sole eyewitness testimony can sustain conviction – Distinction between wilful unlawful act and negligence – Unsafe conviction where evidence is thin and uncorroborated.
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18 June 2001 |
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Administrator‑General appointed interim receiver under section 10 to safeguard estate assets pending grant of administration.
* Probate and Administration – interim receivership – appointment of Administrator‑General under section 10 to protect estate assets pending grant of letters of administration.
* Probate practice – caveats – where petitioner controls estate property and caveators allege risk, court may appoint independent receiver as protective measure.
* Procedural directions – timetabling of defences, replies and hearing in contested probate proceedings.
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13 June 2001 |
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A civil suit cannot challenge Board/Minister decisions under the Security of Employment Act; remedy is by prerogative orders within limitation.
* Labour law – Security of Employment Act – Section 27(1): finality and binding nature of Board/Minister decisions on references; enforceable as a decree. * Labour law – Section 28: prohibition of civil proceedings in respect of summary dismissal except to enforce Board/Minister decisions. * Administrative law – appropriate remedy to challenge such decisions is by prerogative orders within the applicable limitation period. * Limitation – Law of Limitation Act: potential six‑year limitation for contractual causes and shorter periods for prerogative remedies.
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11 June 2001 |
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Appellate court set aside discriminatory 5% award and ordered equal division of the matrimonial home and assets.
Matrimonial property — Division of assets — Failure to assess contributions under s.114 Law of Marriage Act — Constitutional equality (Art.13(1)) — Appellate substitution of equal division; valuation and sale procedure; entitlement to household items and building materials.
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8 June 2001 |
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Specification under PSRC does not relieve the respondent of its decretal payment obligation; creditor may enforce the decree.
* Public corporations – Specification/receivership by PSRC – Effect on legal personality and liabilities – Specification does not extinguish corporate existence or obligations under consent settlement.
* Enforcement – Execution of decree against a specified public corporation – Creditor entitled to payment or to execute decree despite PSRC supervision.
* Statutory interpretation – Section 39(1) Public Corporations (Amendment) Act – PSRC’s role is restructuring/supervision, not to erase liabilities.
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4 June 2001 |
| May 2001 |
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Sale of clan land without clan consent is void; purchaser may recover price from the individual seller, not the clan.
* Land law – clan/communal land – sale without clan consent – sale declared nullity; * Restitution – purchaser’s remedy against individual seller for refund of purchase price; * Appeal – District Court erred in ordering clan members to refund purchase price.
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29 May 2001 |