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Citation
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Judgment date
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| December 2003 |
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Dismissal for non-appearance does not bar a winding-up petition; petitioner shown contributory and affidavit adequate.
Companies law – winding-up petitions – applicability of res judicata where prior suit dismissed for non-appearance; locus standi of a petitioner as contributory under Companies Ordinance; adequacy of affidavit in support of winding-up petition; Companies (Winding Up) Rules 1929 vs Civil Procedure Code.
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29 December 2003 |
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Minority shareholder failed to prove fraud; winding up not just and equitable, petition dismissed with costs.
Companies law – petition to wind up – allegations of fraud, unlawful appointments and share dilution – proof required; corporate governance – validity of capital increase, share allotments and director appointments under company’s Articles; remedy – winding up versus buy-out of minority shareholding; burden of proof on petitioner.
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22 December 2003 |
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Reported
Civil Practice and Procedure - Jurisdiction - High Court - Jurisdiction of the High Court when a matter is in the Court of Appeal - Application of the provisions of the Civil Procedure Code. |
15 December 2003 |
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Court found stay application moot and granted extension of time to file revision, finding sufficient cause due to prior proceedings.
Extension of time — sufficient cause shown by prior review application and struck-out revision; Stay of execution — moot where lower court vacated/modifed eviction order and applicants handed over premises; Direction to call record after filing revision.
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13 December 2003 |
| November 2003 |
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21 November 2003 |
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Validity of service under Order V, Rule 15 CPC (as amended) and retrospective extension to file defence granted due to inadequate proof of service.
Civil procedure — service of summons — Order V, Rule 15 CPC (as amended) — service on adult family member permitted only if co-resident — necessity of process-server or independent evidence to prove service — retrospective extension to file defence.
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17 November 2003 |
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Reported
Probate and Administration - Sale of the estate under administration - Court orders sale by auction at a given price - Whether the sale may be conducted at variance with the orders of the Court.
Probate and Administration - Sale of the estate under administration - Requirement of Notice before effecting the order for sale - Rules governing execution proceedings in Primary Courts - The Magistrates’ Courts (Civil Procedure in Primary Courts) Rules 1964. |
11 November 2003 |
| October 2003 |
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Appeal dismissed: trespass suit was timely; respondent had possession and locus to sue; procedural and judgmental complaints were without merit.
Land law – Trespass – Possession as foundation for action for trespass – right to sue accrues on encroachment. Limitation – accrual of cause of action for recovery of shamba runs from date of encroachment. Civil procedure – Succession of magistrates – District court may continue appeal from point left by predecessor in absence of specific primary court rule. Civil procedure – Failure to visit locus in quo – omission does not automatically amount to failure of justice and may be curable. Appellate review – appellate court will not interfere with trial court’s credibility findings unless plainly unreasonable.
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21 October 2003 |
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Ministerial and Industrial Court awards quashed because the redundancy agreement was unregistered and procedurally defective.
Labour law — Redundancy — Validity of voluntary/joint agreements — Requirement of registration of collective/voluntary agreements. Labour law — Consultation — Meaning and compliance with section 6(1)(g) (involvement of trade-union branches). Industrial Court / Permanent Labour Tribunal Act — Necessity of Labour Commissioner's report under section 39(2) before Ministerial decision. Administrative law — Judicial review — Certiorari available to quash Ministerial and Industrial Court decisions for procedural illegality.
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10 October 2003 |
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Failure to serve a valid statutory notice under the Government Proceedings Act renders proceedings against the government incompetent.
Government Proceedings Act 1967 – statutory notice of intention to sue – condition precedent to suit against the State; Civil Procedure Code, Order VI – requirement to specifically plead conditions precedent and annex material; failure to serve valid notice renders proceedings incompetent; interlocutory objection to competence upheld.
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2 October 2003 |
| September 2003 |
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30 September 2003 |
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An advocate must have a written, signed fee agreement to enforce remuneration under section 55; otherwise tax the bill.
Advocates – fees and remuneration – enforceability of fee agreements – requirement that agreements relied on for enforcement under s.55 (Part VI) of the Advocates Ordinance be in writing and signed by the client. Procedure – annexures in written submissions – preliminary objection to annexures dismissed where inapplicable. Costs – Advocates Remuneration and Taxation of Costs Rules (GN 515/91) – taxation by Taking/Taxing Master to determine fairness and reasonableness.
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30 September 2003 |
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Court granted a 14‑day extension to appeal, finding arguable points of law about title, bona fide purchase, and understated price agreements.
Extension of time – appeal – delay in obtaining record of appeal – points of law certified: bona fide purchaser for value; seller's title in estate property; legality of understated purchase price agreement to defraud revenue.
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29 September 2003 |
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Once a notice of appeal is filed the High Court is divested of jurisdiction and may not split or continue proceedings thereafter.
Civil procedure – effect of filing a notice of appeal – notice of appeal divests the High Court of jurisdiction and vests it in the Court of Appeal. Civil procedure – s.95 (severance/splitting of proceedings) – cannot be used to continue High Court hearings after an appeal has been lodged. Exceptions – limited matters (leave to appeal, certificate of law, execution without stay) may still be entertained by the High Court.
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15 September 2003 |
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Reported
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15 September 2003 |
| August 2003 |
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Applicant's claim dismissed; respondent's LPO price binding and applicant ordered to reimburse respondent for undelivered quantity.
Sale of Goods Ordinance s.10(1) and s.30 – price determination; Local Purchase Order binding in day-to-day vendor–purchaser dealings; delivery and payment concurrent; remedy for shortfall in delivered quantity; dismissal of plaintiff's claim.
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15 August 2003 |
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A Principal District Magistrate lacked jurisdiction over a matter filed in the Resident Magistrate's court; proceedings quashed and retrial ordered.
Jurisdiction of magistrates – Whether a Principal/District Magistrate may try cases instituted in the Resident Magistrate's court – Interpretation and application of Magistrates' Courts Act, s.6(1)(c). Effect of lack of jurisdiction – Proceedings conducted by a court without jurisdiction are nullities and must be quashed and expunged. Remedy – Order for retrial before a properly constituted Resident Magistrate.
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12 August 2003 |
| July 2003 |
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Municipal demolition without adequate compensation found wrongful; lost goods awarded but asset and income claims inadequately proved.
Municipal authority liability for demolition; ex parte proceedings where defendant fails to file defence; proof and quantification of lost goods and business losses; requirement to prove assets and loss of income.
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31 July 2003 |
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Arbitral award quashed for denial of hearing where arbitrator refused reply, oral evidence and to address issues.
Arbitration — Setting aside award — Court’s power under Arbitration Ordinance s.15 — Natural justice/audi alteram partem — Failure to allow reply, oral evidence or final submissions — Arbitrator’s misconduct — Award quashed and rehearing ordered.
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30 July 2003 |
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Applicant granted extension to file appeal out of time based on apparent merits despite insufficient diligence in obtaining judgment.
Civil procedure – extension of time to appeal – delay allegedly due to late receipt of judgment – requirement to show diligence in obtaining judgment copy. Appeals from primary courts – no requirement to attach judgment copy, but counsel may need to inspect judgment before filing appeal. Discretion to extend time – consideration of merits/seriousness of proposed grounds may justify extension despite procedural shortcomings.
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18 July 2003 |
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A signed guarantee binds the guarantor to repay the debtor's loan; ex parte evidence established liability and contractual interest awards.
Guarantee law – signed guarantee creates secondary liability; Ex parte proceedings and substituted service; Proof on balance of probabilities; Award of contractual commercial and penal interest; refusal of general damages for lack of evidence.
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15 July 2003 |
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A signed guarantee creates secondary liability; court awarded principal and contractual and penal interest to the guarantor.
Contract of guarantee — guarantor’s secondary liability — enforcement on principal’s default; substituted service and ex parte proceedings; admissibility of bank statements; recovery of contractual commercial and penal interest; refusal to award general damages absent evidence.
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15 July 2003 |
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Court dismissed claim and refused injunction, finding the plaintiff validly mortgaged property and defaulted on the loan.
Mortgage law – validity of mortgage – surrender of title deed as security and evidence required to establish mortgage; Default and enforcement – notice of sale of mortgaged property and lawful steps by mortgagee; Interim relief – refusal of temporary injunction where no triable issue is shown; Civil procedure – afterthought denials insufficient to displace documentary evidence.
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10 July 2003 |
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Appeal dismissed: medical report discretionary under s.240(3), child’s evidence admissible, life sentence lawfully imposed.
Criminal law – admission of medical reports – s.240(3) Criminal Procedure Act is discretionary, not mandatory; accused may request summons of report author. Evidence – testimony of child of tender years – admissible under statutory safeguards (s.127 Evidence Act); conviction can rest on such evidence if credible. Sentencing – life sentence upheld where statutory regime mandates/permits such penalty; complaint about youthful age must be raised timely.
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9 July 2003 |
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Appellate court substituted convictions for three accused and convicted a receiver of stolen property, ordering return of the vehicle and remitting for sentence.
Criminal law – conspiracy to steal and stealing – admissibility and voluntariness of confessions – corroboration by independent evidence including vehicle key and chassis tampering – receiving stolen property – appellate substitution of acquittal with conviction – remittal for sentence.
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9 July 2003 |
| June 2003 |
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Conviction based on inadequate single-witness identification (no description or lighting detail) is unsafe and was set aside.
Criminal law – Robbery with violence – Conviction based on single-witness identification – Necessity to apply cautionary rules and consider lighting, distance, duration and prior acquaintance – Failure to describe accused or lighting renders identification evidence unsafe.
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30 June 2003 |
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24 June 2003 |
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Reported
Adoption - Adoption order - Effect of the adoption order on the relationship between infant and parent.
Adoption - Purpose of adoption - Purpose of adoption must be to promote the welfare of the child better than the existing arrangement. |
23 June 2003 |
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Vested decree may be executed by successor; arrest of directors deferred pending statutorily required notice to show cause.
Civil procedure – Execution of decree vested by Government Notice No. 87/2001 r.5 – successor entitled to execute prior decree. Civil procedure – Execution by arrest/detention of directors – Order XXI r.20(a) requires notice to show cause where decree is over one year old. Civil procedure – Ex parte proceeding after substituted service.
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20 June 2003 |
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18 June 2003 |
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Disputed ownership of a probate house must be determined by suit under Probate Rules; administrator’s appointment was valid.
Probate law – Objections to inclusion of property in estate – Where a claimant alleges lifetime transfer, objection proceedings under Rule 59(6) of the Probate Rules, 1963, must be numbered and tried as a suit to determine ownership and possession. Probate administration – Validity of appointment – Proper nomination, grant application and publication sustain administrator’s appointment despite objection.
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10 June 2003 |
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6 June 2003 |
| May 2003 |
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30 May 2003 |
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High Court certified points of law on Primary Court jurisdiction in rent disputes and regularity of awarding ownership in a rent suit.
Appellate jurisdiction — leave to appeal — certificate under s.5(2)(c) Appellate Jurisdiction Act 1979. Civil procedure — Primary Court jurisdiction to hear rent claims governed by Rent Restriction Act No.17/1984. Civil procedure — competence and regularity of determining ownership in proceedings originating as rent arrears claims.
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29 May 2003 |
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Leave refused: Minister's default Gazette Order was a preliminary step, not a final decision reviewable by prerogative orders.
Local government – Statutory default powers – Ministerial order declaring local authority in default – Preliminary/statutory step not a final decision – Judicial review (certiorari) requires a reviewable decision – Mandamus not available where no unperformed public duty – Prohibition inappropriate absent execution of a final decision – Discretion to refuse leave for prerogative remedies.
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28 May 2003 |
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Court confirmed a company's alteration of its objects under the Companies Ordinance after finding proper notice and no prejudice to creditors.
Company law – Alteration of memorandum of association (objects and name) – Special resolution under s.7(1) and confirmation under s.7(2) Companies Ordinance Cap.212 – Notice to debenture holders and interested persons – Effect on creditors and members – Registrar of Companies' non-objection.
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26 May 2003 |
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23 May 2003 |
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Expulsion without notice or hearing violates constitutional and party rules; expulsion quashed and membership restored.
Political party discipline – expulsion in absentia – breach of natural justice – right to be heard under Constitution and party constitution – bias and directives undermining impartiality – expulsion void and set aside – costs awarded.
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23 May 2003 |
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Reported
Natural justice - Right to be heard - Plaintiff expelled from her political party without a hearing or notice - Breach of natural justice.
Natural justice — Likelihood of bias - Madaraka branch of the CUF Party interested in depriving plaintiff of her party membership - CUF Headquarters had made up its mind as to the guilt of the plaintiff-Breach of the rule against bias.
Constitutional law - Right to attend Parliamentary sessions - Party directs its members who are members of Parliament not to attend Parliamentary sessions - Legality of such directive - Section 71(1)(c) of the Constitution of the United Republic of Tanzania. |
23 May 2003 |
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Court ordered amendment of a plaint signed and verified by an agent for formal defects rather than striking it out.
Civil procedure – Pleadings – Order VI r.14 (signature by agent) and r.15 (verification) – Defects in signing and verification by donee under power of attorney; Pleadings – Title particulars – Formal defects; Preliminary objection – Strike out v. amendment – Court should avoid denying justice on technicalities; Constitutional guidance against hyper-technicality in procedural matters.
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21 May 2003 |
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21 May 2003 |
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Appeal dismissed for want of prosecution after appellants failed to file court‑ordered written submissions; no costs.
Civil procedure – Ex parte proceedings – Order 39 r.17(2) Civil Procedure Code – Failure to prosecute – Court's power to dismiss appeal for want of prosecution – Court‑ordered written submissions.
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15 May 2003 |
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15 May 2003 |
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13 May 2003 |
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Preliminary objections on statutory notice and non‑provability in bankruptcy required factual inquiry and were overruled.
Preliminary objections – requirement of statutory notice under s.86 Tanzania Railways Corporation Act 1977 – factual questions (acceptance, written claim within six months, impracticability) preclude disposal as preliminary points; joinder of vesting/official receiver under Order 1 r.10(2) and statutory vesting; plaint not disclosing cause of action – remedy is rejection not dismissal.
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12 May 2003 |
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Preliminary objections alleging statutory notice non‑compliance and non‑provability in bankruptcy raised factual issues and were overruled.
Civil procedure – preliminary objection – distinction between points of law and disputed facts – statutory notice under Tanzania Railways Corporation Act (s.86) gives rise to factual inquiries; Bankruptcy/joinder – whether claim provable in bankruptcy and propriety of joining successor public body – court’s power to join parties for convenient execution (Order I r.10 CPC).
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12 May 2003 |
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Circumstantial evidence excluded other suspects; accused acquitted of murder but convicted of manslaughter.
Criminal law – Homicide – murder vs manslaughter – circumstantial evidence must exclude every reasonable hypothesis of innocence (Mswahili Mulugala principle). Evidence – family witnesses and spousal privilege issues; reluctance of close witnesses to identify perpetrator. Forensic evidence – post‑mortem establishing cause of death (haemorrhagic shock from sharp infraumbilical wound). Conduct after offence – passive behaviour as circumstantial indicator of guilt.
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2 May 2003 |
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Circumstantial evidence, excluding other hypotheses, upheld a manslaughter conviction though malice aforethought for murder was not proved.
Criminal law – Homicide – distinction between murder and manslaughter – requirement of malice aforethought for murder.* Circumstantial evidence – principles: circumstances must be fully proved and exclude every reasonable hypothesis of innocence (Mswahili Mulugala). *Witness credibility – relational ties and spousal testimony waiver.* Failure to produce weapon does not necessarily preclude conviction where other evidence is conclusive.
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2 May 2003 |
| April 2003 |
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10 April 2003 |
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Leave to judicially review a ministerial warning under s.171 was refused because no final, reviewable decision existed.
Local government law – s.171 Local Government (District Authorities) Act – declaration of default and prescribed remedial steps – prerogative orders – certiorari requires a final decision; mandamus requires unperformed public duty; prohibition restrains enforcement of a decision – leave refused where only preliminary warning issued.
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3 April 2003 |