Tanzania Law Reports - 1993

Criminal Practice and Procedure - Appeals - Appeals against Interlocutory Orders - Whether appellable by the Director of Public Prosecutions - Appellate Jurisdiction Act 1979, s 6(2).
Criminal Practice and Procedure - Incomplete trial within a trial Whether Court can make a ruling on it.
Natural Justice - The right to be head in criminal trials - The right of the prosecution to be heard.

Criminal Law - Theft - Stealing by agent - Penal Code -ss. 265 and 273.
Criminal Law - Theft - Accessory after the fact of stealing - Penal  Code — ss. 387 and 388.

Criminal Law - Acquittal of PW1 in a charge of assault before a Primary Court in which the appellant was the complainant - Whether a bar to P.W.l to complain against the appellant in a charge of assault in a District Court - Whether defence of autrefois acquit or autrefois convict could be advanced.

Evidence - Acquittal of P. W.l in a charge of assault before a Primary Court in which the appellant was the complainant - Whether a bar to P. W.l to complain against the appellant in a charge of assault in District Court - Section 141 of the Evidence Act, 1967.

Criminal Practice and Procedure -Identification - Use of torch light in identifying thieves - Whether reliable.
Appeals - Second appeal — Where findings of fact or inferences are perverse - Whether Court of Appeal can intervene - Appellate Jurisdiction Act 1979 - Section 6(7)(a).

Civil Practice and Procedure - Adjournment — Advocate of a party engaged in another court - Whether ground for adjournment - Order 17 Rule 1 (2)(c) Civil Procedure Code and the mischief the rule was intended to curb.

Contract - Contract of sale - Party fails or refuses to perform an agreement - Court can order specific performance.
Court of Appeal - Appeals to the Court of Appeal originating from District Courts in Zanzibar - Whether point of law should be certified for determination by Court of Appeal- Appellate Jurisdiction Act 1979.

Court of Appeal - Appeals to Court of Appeals in cases originating from District Courts in Zanzibar - Leave of the High Court is required - Appellate Jurisdiction Act 1979.

Criminal Practice and Procedure — Appeals - Appeal against Order of the High Court - Whether by an order of the High Court refusing leave to appeal to that Court is appealable to the Court of Appeal on a point of law only.
Criminal Practice and Procedure - Appeals - Leave of the High
Court to appeal against orders — Whether orders of the High Court appealable only with leave.

Evidence - Alibi- Supported by witnesses of both defence and prosecution - Rejected - Whether properly rejected.
Evidence - Dying declaration - Corroboration - Corroborative evidence weak and bearing unsatisfactory features - Whether can corroborate.

Criminal Law - Murder- Defence of Insanity - Person suffering from defective reasoning due to delusion but capable of understanding
 hat she was doing - Whether defence of insanity applies - Penal Code, s 13.
Evidence - Expert evidence - Evidence by medical expert — Whether courts are bound by such testimony.

Criminal Practice and Procedure - Assessors - Summing up to the Assessors — Court should not influence Assessors.

Criminal Practice and Procedure - Sentencing - Minimum Sentence for corrupt transactions - Sections 5(d) and 4(a) oj the Minimum Sentences Act, 1972.

Criminal Practice and Procedure - Accused convicted without having been arraigned - Whether proper - Section 228 of the Criminal Procedure Code.
Criminal Practice and Procedure - Appeals- Powers of Appeal Court where trial was a nullity - Whether Court of Appeal can order retrial - Rule 36 of the Court of Appeal Rules 1979.

Magistrates Courts Act - Jurisdiction - A Court of Resident Magistrate presided over by a District Magistrate - Whether Court properly constituted - Criminal Practice and Procedure - Curable defects - Such defects must proceed from a trial by a Court of competent jurisdiction - Sections 387 and 388 of the Criminal Procedure Act, 1985.

Criminal Practice and Procedure - Sentencing - Powers of the Court of Appeal to interfere with sentence.

Civil Practice and Procedure - Ex-parte judgment - Grounds for setting aside an ex-parte judgment.

Criminal Practice and Procedure — Statement of Witness or substance of evidence not read at committal proceedings - Whether witness can testify for prosecution at the trial - Section 289(1) of the Criminal Procedure Act, 1985.
Criminal Practice and Procedure - Witness - Notice to accused or  Advocate of intention to call witness - Contents of such notice - Criminal Procedure Act 1985, s 289(2).
Evidence - Extra-judicial statement retracted at trial- Whether it can be relied upon.

Evidence - Strong circumstantial evidence - Only remote possibility left in favour of an accused - Whether sufficient proof of charge established.

Court of Appeal Rules - Notice of Appeal - Service of Notice of Appeal - Proof of service of notice on the Respondent - Rule p 77(1) of the Court of Appeal Rules 1979.
Court of Appeal Rules - Notice of Appeal and letter of application for copy of High Court proceedings - Non-service of Notice of Appeal and copy of application letter: consequences thereof- Rules 77(1) and 83(2) of the Court of Appeal Rules 1979.

Labour Law - Summary dismissal- Jurisdiction of the courts in cases of summary dismissal- Security of Employment Act, Cap 574.
Constitutional Law - Basic rights enshrined in the Constitution - The right to seek redress in court and ouster of court's jurisdiction - Section 28 of the Security of Employment Act and article 30 of the Constitution.

Civil Practice and Procedure - Appeals - Memorandum of appeal -Memorandum of appeal makes no reference to undue influence and no leave of Court sought and obtained to argue the issue on appeal -Whether the Court may entertain the issue suo motu - Rights of the other party - Order 39 rule 2, Civil Procedure Code.

Evidence - Murder - Conviction based mainly on the evidence of a single witness - Whether such conviction can stand.
Evidence - Defence of Alibi- Alibi raising no reasonable doubt on the prosecution case - Effect thereof.

Criminal Law - Threatening violence - Whether threatening violence includes threat to kill - s 89(2)(a) of the Penal Code.
Criminal Practice and Procedure - Criminal Revision - Whether Judge can make a revision after consultations with the relatives of a convict who had an advocate.
Criminal Practice and Procedure - Criminal Revision - Notification to the DPP - Whether the High Court should hear the parties on revision - S 374 of the Criminal Procedure Act, 1985.

Criminal Practice and Procedure - Assessors - Judge removes the question of provocation from Assessors - Fatal to resulting conviction.

Civil Practice and Procedure - Interest on general damages - Trial Judge awards interest on the principal sum at 5% per month from the date of  filing the suit to the date of full settlement — Whether correct to award interest on general damages from the date of filing the suit - Interest - Award of interest on general damages - Award of interest at 5% per month - Whether too high and out of proportion.
Civil Practice and Procedure - Abatement of suits- Actions in respect  of torts - legal provisions saving certain causes of action based on tort from abating on the death of either party.

Appellate Jurisdiction Act — Second appeal- Whether it is proper for a second Appellate Court to evaluate the evidence afresh and come to its conclusions in matters of fact.
Evidence - Evaluation of - When a second Appellate Court may evaluate the evidence afresh and make its own findings of fact.

Constitutional Law - Suits against the Government - Statutory provision requiring the Minister’s consent to sue the Government -Whether constitutional- Section 6 of the Government Proceedings  Act 1967.

Magistrates’ Courts Act - Extension of Appellate jurisdiction to magistrates - Order investing magistrate with extended jurisdiction not specifying categories of cases the magistrate may entertain - Whether the order is proper.

Evidence - Evidence of spouse - Compellability of spouses to give  evidence against each other in criminal cases - Admissibility  spouse’s evidence — Evidence Act 1967, ss 130(2).

Evidence - Circumstantial evidence - False, incredible or contradictory statements given by way of explanation by the accused- Effect in reaching verdict.

Legal Assistance - Accused charged with murder - Court allows trial to proceed without the accused having the assistance of counsel -Whether trial fair and just.
Criminal Practice and Procedure - Calling of doctor who performed postmortem examination on the body of the deceased - Right of accused to be informed and to decide whether or not he wants the doctor to be called - Section 291 of the Criminal Procedure Act 1985.

Evidence - Circumstantial evidence — Unbroken chain of circumstantial evidence linking the appellants to the death of the deceased - Whether can ground a conviction.

Criminal Practice and Procedure - Adjournment of cases — Statutory control of adjournments and remand of accused in custody - Need for a certificate from specified officers stating the need and grounds should further orders of adjournments and of remand custody of the accused be necessary - section 225(1) and (4) of the Criminal Procedure Act, 1985 - Consequences of breach of such mandatory statutory provisions.

Criminal Practice and Procedure - Assessors - Directions to assessors - Trial judge misdirects assessors on the nature of provocation - Assessorsfail to determine and advise on the provocative nature of the deceased’s words — Effect of such misdirection.
Criminal Law - Provocation - Deceased uttered words tending to show that she had an adulterous association with some men - The test of provocation.

Evidence - Burden ofproo£- Murder - Accused’s right palm stained with blood which appears to be recent and about which accused  keeps quiet when asked - Whether court may draw inference that accused’s silence is not consistent with his innocence.
Evidence - Burden of proof- Shifting the burden to the accused - Accused's palm stained with blood appearing to be recent - Whether requiring the accused to explain how he got the blood stain amounts to shifting the burden of proof to the defence.

Criminal Practice and Procedure - Right of accused to defend himself - Accused jumps bail and absconds after close of prosecution case -Whether conviction and sentence passed in his absence was proper- Sections 226( 1) and (2) and 227(I; ofthe Criminal Procedure Act 1985.

Evidence - Confession - Repudiated or retracted confession - Confessions found to be true - Conviction may be based on them.

Criminal Practice and Procedure - Charges- Charge of breaking into a building with intent to commit an offence but facts show breaking into a dwelling house - Charge defective: ss 294(1) and 297 of the Penal Code.

Criminal Practice and Procedure - Charges - Duplex charge - Offence of breaking into a building with intent to commit an offence therein and offence of theft charged in one count — Charge is had for duplicity. Criminal Law — Theft — Doctrine of Recent Possession.

Criminal Practice and Procedure - Plea of Guilty - Appellant pleaded guilty and admitted facts not constituting the offence charged -Whether plea of guilty unequivocal.

Road Traffic - Causing bodily injury through reckless driving - Ingredients of reckless driving - Road Traffic Act 1973.

Rent Restriction Act - Protected tenant — Protected tenant need not enter a new agreement with the landlord - Eviction must comply with provisions of the Rent Restriction Act, 1984, s 25(1 )(e)(i).
Landlord and Tenant - Protected tenant - Eviction - Need to comply with the provisions ofs 25(1 )(e) (i) bf the Rent Restriction Act, 1984.

Economic and organized crime control - Jurisdiction of subordinate  Courts - Director of Public Prosecutions confers  Jurisdiction on a Court of Resident Magistrate - Case tried by a District Court - Whether lawful.
Criminal practice and procedure - Adjournment not in compliance with section 225(4) Criminal Procedure Act, 1985 - Whether Proceedings valid.

Constitutional Law - Jurisdiction of the High Court to enforce basic rights enshrined in the Constitution - Judge raises issue of constitutionality without there being a complaint - Whether judge has  jurisdiction.
 Bill of Rights - Procedure and practice of the High Court in enforcing constitutional bill of rights - Judge raises issue of constitutionality
without there being any complaint to court - Whether procedurally proper.

Criminal Practice and procedure - Adjournments - Compliance with 5 225(4) of the Criminal Procedure Act, 1985.

Constitutional Law - Basic rights enshrined in the Constitution -Procedure and jurisdiction of the High Court in enforcing basic rights and freedoms - Articles 30(3) and (4) and 108(1) and (2) of the Constitution. 

Constitutional Law - Constitutional Bill of Rights and its interpretation - Use ofthe African Charter on Human and People's Rights in interpreting the Bill of Right
Bill of Rights and Freedoms - The Right to personal liberty - The right to bail and circumstances and procedure for denying bail to an accusedperson - Section 148(5)(e) ofthe Criminal Procedure Act 1985 and article 15(2) (a) of the Constitution.
Criminal Practice and Procedure - Bail - Denial of boil in criminal trials: Whether violative of the constitutional presumption of innocence - SectionJ48(5)(e) ofthe Criminal Procedure Act 1985 and article 13(6)(b) of the Constitution Constitutional Law - Bill of Rights and Criminal Practice and Procedure - The Right to gunlity before the law: Whether violated by denial of bail - Section 148(5)(e) of the Criminal Procedure Act 1985 and article 13 (4) and (5) of the Constitution
Constitutional Law - Doctrine of Separation of Powers - Statutory provisions prohibiting the grant of bail - Whether they violate the doctrine of separation of powers 
Bill of Rights - Derogation Clauses in the Bill of Rights - Circumstances in which statutory provisions violating basic rights and freedoms may be saved by derogation clauses - Section 148(5)(e) of the Criminal Procedure Act 1985 and article 30 of the Constitution.

Court of Appeal Rules - Notice of Intention to Appeal - Essentials of a Notice of Appeal - Form and Content of a Notice of Appeal - Form D in the First Schedule to the Court of Appeal Rules 1979.
Civil Practice and Procedure -Appeals to the Court of Appeal — Time in which to appeal and steps necessary to take before instituting appeal- Rule 83 of the Court of Appeal Rules 1979.
Court of Appeal Rules - Right to apply for extension of time to appeal - Whether provisions prescribing period in which necessary steps for instituting appeals should be taken are mandatory - Rules 8 and 83 of the Court of Appeal Rules 1979.

Civil Practice and Procedure — Functus officio - When a court becomes functus officio.
Probate and Administration - Administration of estates - Adminis-Registration of land - Whether primary courts have jurisdiction. 
Magistrates Courts Act — Jurisdiction - Administration of estates -Subject matter of administration is registered land - Whether primary court has jurisdiction - Sections 14 and is of the Magistrates Courts Act, 1984 and Government Notice No. 320 of 1964.