Tanzania Law Reports - 1982

Tort — Malicious prosecution — Allegation- that plaintiffs had committed a crime — Plaintiffs arrested, prosecuted but acquitted — Whether the tort established.

Evidence — Confession — Confession to police officer — Admissibility in evidence — Effect of the 1980 amendment to S.27 of the Law of Evidence Act. 1967.
Criminal law — Malice-aforethought — Brutal nature of the killing -— Whether malice - aforethought proved..

Evidence — Sufficiency of evidence — Two people jointly charged with cattle theft, c/s 268 of the Penal Code, Cap. 16. — One pleads guilty — the other convicted on shaky evidence — Accomplice didn't give evidence — Whether conviction should stand.
Evidence — Plea of guilty is a confession of fact — Evidence must be led in a later trial of a former co-accused regarding it.

Family Law — Separation — Petition for Judicial Separation — Proof of breakdown of marriage necessary.
Family Law — adultery — Proof of adultery — Circumstantial evidence may suffice.
Family Law — Contribution to acquisition of matrimonial property — Supervision of building of matrimonial house should entitle party to property rights.

Advocates' Ordinance — advocate — Conduct of litigation — Duty to client and court.
Advocates' Ordinance — Advocate — Fraud — Advocate deceived by client as to the true facts — Advocate secured consent Judgment — Whether conduct constituted professional misconduct — Advocates’ Ordinance, Cap. 341, S.13 (4Xa).

Advocates' Ordinance — Advocate — Professional misconduct — Advocate executed judgment without obtaining an eviction order — Whether conduct
serious enough to warrant removal from the roll of advocates —Advocates' Ordinace, Cap, 341 S.13(4).
Evidence—Burden of proof — Quantum of proof required to. establish, professions misconduct.

Administrative Law — Duty to act judicially — Circumstances requiring it.
Advocates’ Ordinance — Advocate — Professional Misconduct — Money entrusted to an advocate for defending a case — Client withdraws — Advocate fails and/or refuses to refund fees.
Advocates’ Ordinance — Advocate — Professional misconduct — Failure to keep a client’s account.
Advocates’ Ordinance Advocate-Duty to client and court — Evidence — Standard of Proof—Allegation of Professional Misconduct — Quantum of Proof required.

Tort — Slander — Grounds on which actionable without proof of special damage

Tort — False imprisonment — Imprisonment by police and informant — Whether mere fact of arrest by police a satisfactory answer to claim of damages for false imprisonment.
Tort — Enticement — Enticement not a criminal offence — Whether police have power to arrest a person who is alleged or even proved to have committed a civil wrong.

Criminal Practice and Procedure — assessors — Failure of trial judge to direct assessors on provocation — Whether irregularity fatal to the proceedings.
Criminal Practice and Procedure - Dissent of Appeal Court to ask retrial.

Administrative Law—Finality Clause—Statutory exclusion of Judicial review — Circumstances under which courts may review administrative action.

Land law — Adverse possession — Owner aware of trespasser’s presence —Whether adverse possession established in equity.

Contract — Domestic arrangement — Promise to buy a gift — Intention to create legal relations — Promise revoked by subsequent conduct —Whether promisor bound by earlier- promise.

Customary land law — Inheritance — First son of deceased and widow — Which of them is entitled to inherit deceased’s property — Rule 25 Law of Inheritance Rules 1963.

Criminal Law — Corrupt transaction — Ward attendant solicits for a bribe from a patient allegedly on behalf of a medical assistant — Whether he has undertaken to do anything in respect of a matter in which the Government as his principal is concerned.

Criminal Law — Importation of goods without import licence — Goods acquired while on service abroad — Goods not declared to customs authorities on return to the country — Whether goods constituted personal baggage exempted from the requirements of Import Control Ordinance, Ss. 4 and 20 (Cap. 292).
Statutory Interpretation — Meaning of “bona fide accompanied baggage" — S. 5 of the Import Control Ordinance (Cap. 292).

Criminal Practice and Procedure — Settlement out of court — Whether proper in a theft case.

Tort — Damages — Negligence — Motor accident — Assessment of general damages.
Tort — Negligence — Vicarious liability — Employee driving in the course of employer's business.

Criminal Practice and Procedure — Bail — Accused fails to appear but is later produced by bondsman — Circumstances justifying forfeiture.

Civil Practice and Procedure — Res Judicata — Dispute concerning refugees settled by Settlement Commandant under terms of Refugee (Control) Act 1966 — Whether Res Judicata applies — Whether refugees have a right to be heard by Courts.

Criminal Practice and Procedure — Accused acquitted under s. 198 Criminal Procedure Code for want of prosecution — Whether acquittal lawful.

Criminal Law-Theft — Whether possible for a person to be convicted of stealing his own money.
Criminal Practice and Procedure — Prosecution granted an application to take the evidence of a witness anew during trial —Whether proper.
Criminal Practice and Procedure — Prosecution witness convicted alongside accused persons — Whether proper.

Criminal Practice and Procedure — Alternative verdicts — Principles governing — Whether a charge of threatening violence can be substituted for common assault.
Criminal Practice and Procedure — Sentencing — Omnibus sentence —  circumstances under which permissible.

Evidence — Confession — Voluntariness — Allegation of beating not dealt with effect of — Evidence Act, s. 29.
Evidence —Testimony of wife of accused — Accused must be informed rights — Evidence Act, s. 130(3).
Criminal Practice and Procedure — Prosecution witness called as defence witness — Leave of court not sought — Effect of Criminal Practice and Procedure — Judgment — Essential elements — Criminal  Procedure Code, s.171.

Trade Marks Ordinance Cap. 394—Application for registration of Trade
Mark—Objection—Burden of proof-—Mark likely to deceive or cause confusion.
Trade Marks Ordinance Cap. 394—Application for registration of trade mark—"Vaseline” and "Vasofine" whether similar.
Trade Marks Ordinance Cap. 394—Application for registration of trade mark—Whether first syllable is important.

Administrative Law — Declaratory order — Circumstances under which court will refuse to grant a declaration.
Civil Practice and Procedure — Chamber summons — Proceedings commenced by chamber application instead of filing a suit—Whether failure to observe procedure was fatal to the proceedings — S.11 (1) of Rent Restriction Act, 1962.

Family Law—Dissolution of marriage—Whether a man whose marriage is dissolved can pay compensation to his former wife's father in respect of, children born during subsistence of marriage—Rule 190 of the Customary Law Declaration Order, Government Notice No. 279 of 1963.

Administration of Estates — House built on registered covenant under Land- Registration Ordinance — Whether Primary Court has Jurisdiction, S.14 14 (a)(i)(A)of the Magistrates’ Courts Act, 1963.
Customary Law — Administration of Estate where law applicable is customary law — Chief Justice empowered to confer Jurisdiction upon Primary Courts — S.14(2) of Magistrates’ Courts Act, 1963 — Applicable customary law —Government Notice No. 320 of 1964.— Powers of Primary Courts in Administration Cases - Fifth Schedule to - Magistrates’ Courts Act, 1963.
Inheritance — Customary Law — Primary Court has Jurisdiction unless otherwise directed by High Court — S.88 of Probate and Administration Ordinance.
Jurisdiction — District Court — Lack of jurisdiction in matters of inheritance under customary law — S.57 of Magistrates' Courts Act, 1963.

Election petition — Misdirections and non-directions by trial judge on various matters — Failure by trial judge to appreciate evidence adduced and its true effect on the result of the election-Evidence —Improper-rejection of — Misdirection.

Clubs — Unincorporated club — Order to hold elections whether order constitutes interference with club’s constitution — National Sports Council of Tanzania Act no 12 of 1967
Administrative Law — Declaratory Proceedings — Declaration sought
against National Sports Council — Failure to exercise Jurisdiction —
Circumstances under which the order of declaration will be issued.
Administrative Law — Injunction — Temporary injunction — Whether available against a person exercising a statutory duty.

Family Law — Presumption ofMarriage — Long cohabitation — s. 160(1) of the Law of Marriage Act, 1971.
Family Law — Whether non-payment of bridewealth affects the validity of marriage — s. 41 of the Law of Marriage Act, 1971.

Civil Practice and Procedure — Dismissal of a suit in default of appearance on date of mention — Application for restoration of the suit should be made.
Damages — Award of damages in excess of the sum claimed in the plaint — Whether proper Tort — Vicarious liability — Wrongful conduct of employee — Wrongful and unauthorised mode of doing some act authorised by the master — Employer liable.

Family Law — Husband and Wife — Dissolution of marriage Distribution of matrimonial assets.
Family Law.—Distribution of matrimonial property to be determined upon grantting of divorce decree — S. 108. (b) of the Law of Marriage Act, 1971 — Duty of Court to enquire into issue of matrimonial property.
Customary law — Customary Law of the Wasukuma — Party responsible for breakdown of marriage is not entitled to matrimonial property jointly acquired — In enquiring into division of matrimonial assets court shall, have regard to custom of community -—S.1I4 (2) (a) of the Law of Marriage Act, 1971.
Civil Practice and Procedure — Where issue is left undetermined by court — Court functus officio.

Magistrate's Courts Act 1963 — Representation in Primary Court — Whether opposite party may object — S. 29(2).
Magistrate's Courts Act 1963 — Representation in Primary Court — Meaning of "relative" — Whether members of same clan relatives — S.29(2).
Magistrate's Courts Act 1963 — Representation in Primary Court — "Any member of the household of and Party" — Meaning of Magistrate’s Courts Act 1963 — Representation in Primary Court~ Interpretation of S.29(2) — Whether "professional cadre" allowed.

Customary Law — Will — Requirements for Validity of a will issued by an illiterate person.

Election petition — Evidence — Assessment of— Failure by trial judge to assess and evaluate evidence adduced before him.
Evidence — Assessment of — Failure by trial judge to assess and evaluate evidence adduced before him.
Civil Practice and Procedure — Judgment — Contested material issues of fact left unresolved — Whether Judgment

Evidence — Spouse giving evidence for the prosecution — The court must educate him/her of his/her rights — Section 130(2) Evidence Act.

Evidence — Identification of accused — Identification not sufficient where not acaccompanied by necessary details.

Criminal Law — Contempt of court — Failure by Police to obey -court order to return seized vehicles to owner — Whether offence committed— S. 114(I)(b) Penal Code.
Criminal Practice and Procedure — Contempt of Court — Object of proceedings for.
Criminal Practice and Procedure — Sentencing — Sentence imposed in excess of statutory maximum — Whether legal.

Evidence — ‘Moshi’ possession — Republic must prove that the substance contained more than one per centum by weight of absolute alcohol — ‘Moshi’ (Manufacture and Distillation) Act, 1966.

Criminal Practice and Procedure — Appeal from trial magistrate's assessment of witnesses — Whether appellate court can interfere with trial court’s assessment of witnesses.
Criminal Practice and Procedure — Calling of witnesses — Accused denied the opportunity to call a defence witness — Intended witness not present on scene of crime — Whether amounted to failure of justice — S. 206 Criminal Procedure Code (Cap. 20).

Family Law — Presumption of marriage — Living together for four years under the same roof— Reputation of being man and wife — s. 160(1) ofthe Law of Marriage Act, 1971.
Family Law — Rebuttal of presumption of marriage — Custody of children after rebuttal of presumption of marriage — s. 160(2) ofthe Law ofMarriage Act, 1971.
Family Law — Custody of children below the age ofseven — Welfare principle.

Criminal Law — Hoarding — Appellant in the business of selling goods — Possession of stocks of commodity in scarcity — No offer of purchase made — Whether offence committed — S. 194A Penal Code
Criminal Law — Hoarding — Essential elements of — s. 194A Pena! Code.
Criminal Practice and Procedure — Burden of Proof in a charge of hoarding — Quantum of proof

Company Law — Company — Objects — Alteration of objects clause — Alteration involves complete change of objects — Companies Ordinance, Cap. 212 Ss. 6 and 7.
Company Law — Registrar's powers — Circumstances under which registrar can refuse to register a company
Statutory Interpretation — Memorandum of Association — Ambiguity in objects clause — Meaning of "may conveniently or advantageously be combined ..." S. 7(d)' Companies Ordinance Cap. 212.

Evidence — Alibi — Burden of proof does not shift to the accused.

Criminal Law — Theft — Stealing from a person — Act of picking pocket —- Offence established — Penal Code. S.269(a).

Statutory Interpretation — The rule of ejusdem generis — Refusal to give a name Whether constitutes offence similar to "riotous. disorderly or insulting conduct" — Police Force Ordinance Ss. 101, 102.

Criminal Practice and Procedure — Alternative charges — Circumstances requiring preference of alternative charges.
Criminal Law — Escaping from lawful custody — Where not clear under whose custody accused was — Acquittal.
Sentencing — Medical report describes harm as moderate —Magistrate describes harm as great injury and imposes a heavy sentence — Improper.
Sentencing — Corporal punishment — Circumstances under which it can be given.
Sentencing — Sentence requiring High Court’s confirmation.
Sentencing — Police supervision of a convict — Conditions precedent to placing a convict under police supervision.

Administrative Law — Deportation Ordinance — Deportation Order and Detention Order do not state the place where the detainee is to be deported to — Whether they are defective.

Criminal Practice and Procedure — Legal representation — Right of accused to be legally represented — s. 190 Criminal Procedure Code (Cap. 20).
Criminal Practice and Procedure — Appearance — Dismissal of case due to non- appearance of prosecutor.

Criminal Practice and Procedure — Jurisdiction — Territorial Jurisdiction of disctrict court — Property stolen in Tanzania but received in Kenya — Whether court in Tanzania has Jurisdiction to try the offence of receiving stolen property committed in Kenya — (Section 6 of the Penal Code and section 65 of the Criminal Procedure Code).

Criminal law — Assaulting a Police. Officer in execution of duty — Assault committed on a Ward Secretary — Whether Ward Secretary is a Police Officer - Penal Code S. 243(b).
Criminal law — Carrying business without a valid trading licence —Licensing Act 1972, Ss. 3(1), 17(b).
Statutory Interpretation — "Selling above maximum price" — Meaning of — Regulation of Prices Act 1973 Ss. 20, 26.

Administrative Law — Natural Justice—Right of being represented by legal counsel — Case heard on date fixed for mention — Counsel absent — Accused deprived of his right of legal representation — Whether proper — (Section 190 of the Criminal, Procedure Code).

Family Law — Husband and Wife — Dissolution of Marriage — Matrimonial misconduct — Order for maintenance of divorcee
Family Law — Order of maintenance — Whether or not the party's matrimonial Misconduct has effect on maintenance — Discretion of the court — Material change of circumstances — S. 121 of the Law of Marriage Act, 1971.