Tanzania Law Reports - 1994

Probate and Administration - Administration of Estate - Powers of the Primary Court to appoint and replace an administrator - Rules 2(a) and (b) of the First Schedule of the Magistrates’ Courts Act, 1984.
Probate and Administration - Challenging validity of appointment of an administrator - Onus of proof
Probate and Administration - Disposition of property - Whether consent from all heirs is necessary before sale of property.

Civil Practice and Procedure - Correction of errors - Clerical and arithmetical mistakes in judgments, decrees and orders, arising from accidental slip or omission - Whether application to correct  such mistakes is subject to the law of limitation - Item 21 First Schedule to the Law of Limitation Act 1971 and s 96 of the Civil Procedure Code 1966.

Civil Practice and Procedure - Clerical and arithmetical errors - Application to correct such errors-Application to amend the decree so as to include compensation for inflation and devaluation -Whether an application for correction of clerical and arithmetical errors.
Court of Appeal - Revisional jurisdiction of the Court of Appeal -Whether a party may pursue and use the revisional jurisdiction of the Court even after filing Notice of Appeal - Section 4 of the Appellate Jurisdiction Act 1979, as amended by Act No 17 of
1993.

Criminal law - Murder - Self-defence - Whether plea of self-defence is available to a person who started the fight.
Criminal Law - Homicide - Death occurring as a result of a fight - Whether it is murder or manslaughter.

Labour Law - Jurisdiction - Summary dismissal - Ouster of the jurisdiction of the court — Section 28 of the Security of Employment Act, 1964.
Labour Law - Jurisdiction - Summary dismissal- Whether the court  can split suit into compartments so as to exclude claims based on summary dismissal.
Civil Practice and Procedure - Amendment of cause of action -Whether judge can amend pleading without application of the parties.

Civil Practice and Procedure - Appeals - Appeals to the Court of Appeal- Appeal made without leave ofthe High Court where leave is required — Appeal incompetent.

Rent Restriction – Powers of the Minister to grant exemption – Section 2(1)(b) of the Rent Restriction Act, 1984.
Administrative Law – Ultra vires Doctrine – Whether Government Notice 41 of 1992 granting exemption to the National Housing Corporation was ultra vires – Exemptions – Specified parastatal instead of a class of premises as provided by s 2(1)(c) of the Rent Restriction Act, 1984.
Constitutional Law – Whether GN 41 of 1992 was discriminatory, contrary to article 13(2) of the Constitution of the United Republic of Tanzania.
Constitutional Law – Whether GN 41 of 1992 was arbitrary - contrary to natural justice and equality before the law.
Constitutional Law – Drafted in so few terms as to not even targeted groups – Whether saved by article 30(2) of the Constitution.

Criminal Practice and Procedure - Admission and evaluation of evidence - Evidence wrongly rejected by trial court - Duty of the Appellate Court.

Criminal Law - Murder - Defence of Provocation - Whether talking in riddles is provocative enough

Criminal Law - Defence of alibi - Whether prior notice is required.
Criminal Practice and Procedure - Identification of accused - Identification where offence was committed at night.

Criminal Law - Provocation - Whether a demand for ‘talaka’ rather than reconciliation amounts to provocation.

Criminal Law - Provocation - Sudden and grave reaction -Manslaughter and not murder.

Family Law - Presumption ofmarriage - Presumption rebutted after eight years of cohabitation - Whether parties have any rights under the Law of Marriage Act 1971

Criminal Law - Murder - Malice Aforethought - Whether malice Aforethought may he inferred from the amount of force used - Whether conduct may be indicative of malice.

Civil Practice and Procedure - Claim for loss of profits - Need for specific proof of specific claims - Burden of proof.

Criminal Practice and Procedure - Trial with assessors - Assessors not given opportunity to cross-examine witnesses individually - Effect thereof
Evidence - Confession made involuntary - Circumstances of confession not seriously and comprehensively considered by the court - Whether proper.
Evidence - Corroboration - Uncorroborated retracted confession - Whether courts may convict on a retracted confession without corroboration.

Criminal Law — Murder - Contradictions in evidence regarding circumstances in which deceased was killed — Whether may be relied on for conviction of murder.

Criminal Practice and Procedure - Identification of an accused -  Identification in conditions not favourable - Whether reliable.

Evidence - Evidence of a child of tender years - Whether such evidence may he received without a voire dire - Section 127(2) of the Evidence Act 1967.
Evidence - Evidence of a child of tender years - Corroboration -  Whether a child’s evidence may be corroborated by the defence evidence of the accused.
Criminal law - Robbery with violence - Appropriate sentence for robbery with violence - Sections 285 and 286 of the Penal Code, and the Minimum Sentences Act 1972 as amended by Act No. 10 of 1989.

Criminal Practice and Procedure - Appeal - Summary dismissal of appeal - Whether summary dismissal of appeal without re-appraisal of evidence proper.

Constitutional Law - Death penalty - Whether or not offends the right to dignity - Article 13(6)(d) of the Constitution of the United Republic of Tanzania, 1977.

Constitutional Law - Death penalty - Whether it is a cruel, inhuman and degrading punishment and treatment - Article 13(6)(e) of the Constitution of the United Republic of Tanzania.
Constitutional Law - Penal Code - Whether the provision prescribing death penalty is lawful law or necessary in the public interest - Article 30(2) of the Constitution of the United Republic of Tanzania.
Constitutional Law - Death penalty - Whether death penalty violates article 14 of the Constitution of the United Republic of Tanzania which guarantees the right to life.

Constitutional Law - Violation of basic rights - Burden of proof -Proof on balance of probabilities. ‘

Statutory interpretation - Constitutional provisions guaranteeing basic rights - Whether generous and purposive construction should be applied.

Criminal Law - Murder contrary to s 196 of the Penal Code Cap 16 Criminal Practice and Procedure - Appeal- Memorandum of Appeal filed out of time - Consequences thereof- Rule 65(1) of the Court of Appeal Rules 1979.

Evidence — Analysis of evidence - Failure to properly analyse evidence - Consequence thereof.
Evidence - Hostile witness - Evidence of hostile witness - Whether such evidence may he used. 
Evidence — Corroboration - Circumstantial evidence - Reliability of witness
Criminal Practice and Procedure - Murder - Motive - Whether motive is necessary to establish murder.

Court of Appeal Rules - Application to strike out a notice of appeal for failure to institute the appeal in time - Whether lack of money is a defence.

Evidence - Evidence of a spouse - Failure to warn oneself on evidence from a spouse.
Evidence - Credibility of- Witnesses - Whether appellate court can assess credibility of witnesses

Evidence - Identification of accused persons - Murder committed at night during a burglary - Whether identification of the accused as the murderers could not have been mistaken.

Road Traffic Act, 1973 - Definition of a motor-vehicle - Whether  ‘Motorcycle’ is a ‘motor vehicle’ - Section 284 of the Penal Code. Magistrate’s Courts - Revision - Reference to the High Court for revision - Powers of resident magistrate in charge to initiate revision of decision of a district magistrate - Section 44(2) of the Magistrates’ Courts Act 1984.

Criminal Law - Self defence - Appellant followed into his house and hurled with obscene abuses and attacked by complainant - Appellant used panga against the aggressor - Whether excessive force used - Sections 18, 18A and 18B of the Penal Code.

Criminal Practice and Procedure - Appeal - Appeals against intelocutory orders - Whether an accused person may appeal against an interlocutory order.

Civil Service - Removal of civil servant from service in the public interest - Section 19 of the Civil Servant Act 1989. 
Public Interest- Power of the President to remove civil servants in the public interest - What constitutes public interest.
Jurisdiction - Ouster of jurisdiction - Statutory provision that an act of the President shall not be enquired into by any court - Effect thereof- Section 23(2) (a) of the Civil Service Act 1989.

Criminal Law - Murder - Defence of provocation.

Civil Practice and Procedure - Change of judge before concluding the trial - Whether proper - Order 17 Rule 10 of the Civil Procedure Code 1966.
Labour Law - Summary dismissal of employee - Meaning of 'employee' in cases of summary dismissal - Sections 4 and 28(1) of  the Security of Employment Act 1964 as amended by Act No 45 of 1969. 
Labour Law - Meaning of 'employee' under the Security of Employment Act 1964 - Whether the opinion of the Labour Officer is binding on the court.

Evidence - Evidence of a co-accused - Whether evidence of a co-accused may form the basis of conviction - Section 30 of the Evidence Act 1967.
Evidence - Accomplice’s evidence - Whether court may convict on accomplice’s evidence without corroboration.
Evidence - Corroboration - What may constitute corroborative evidence.
Criminal Practice and Procedure - Right of the accused to be defended by advocate - Trial court ordered trial to proceed in the absence of defence advocate - Consequences thereof.
Criminal Practice and Procedure - Penal legislation - Retrospective application of penal legislation - Sentence imposed came into operation after commission of the offence - Whether proper.

Criminal Practice and Procedure - Charges - Robbery with violence and armed robbery - Two distinct offences attracting distinct punishments.
Criminal Practice and Procedure - Cognate offences and substituted conviction - Armed robbery and robbery with violence - Whether a conviction for armed robbery may be substituted for robbery with violence.

Criminal practice and procedure - Right of accused to he heard - Accused persons jump bail and do not appear in court for hearing shortly before close of the prosecution case - Case proceeds in their absence - Whether conviction proper — ss 226 and 227. of the Criminal Procedure Act 1985.

Civil Practice and Procedure -Issues for determination by the Court - Issues not at all pleaded but the court allows parties to address it them - whether, the court should make a determination on them.
Land Law - Revocation of a Right of Occupancy - Notice of intention  to revoke a right of occupancy - Essence and purpose thereof .
Land law - Revocation of a Right of Occupancy in the Public Interest - Revocation made in order to protect a trespassing parastatal -Whether it is revocation in the Public Interest - Section 10(2) of the Land Ordinance.

Evidence - Confession - Admissibility - Confession to a police officer of unknown rank - whether admissible -sections 27(1) and 3 of the Evidence Act, 1967.

Prerogative orders - Parties to applications for prerogative orders -Whether a private individual may joined as a co-respondent in an application for prerogative orders.
Labour law - Limitation of time - Time within which to file a reference to the Labour Conciliation Board or further reference to the  Minister - Security of Employment Act 1964 and Law of Limitation Act 1971.

Natural justice - The right to be heard - Applicant dismissed from employment by the respondent's Board of Directors on account of an audit report - Need to show contents of audit report to the appellant before dismissing him.

Natural justice - The rule against bias - General Manager who initiated disciplinary proceedings against the applicant was present at the board meeting while applicant was absent - Whether the board was biased.

Criminal practice and procedure - Natural Justice - The Right to be heard - Person acquitted by trial court is convicted by appellate court without being heard - Whether proper.
Magistrate’s Courts - Appellate jurisdiction of district court Whether district court as an appellate court may substitute a conviction for an acquittal without hearing the accused - Section 21(1)(b) of the Magistrates’ Court Act 1984.

Evidence - Evidence by witness of tender age - Witness aged fifteen years - Whether needing corroboration.
Evidence - Credibility of witnesses - Trial court best placed to determine credibility.
Criminal Law - Murder - Malice a forethought - Attacking a confessed thief with knife, club, fire, and utterances that he would die and be finished off - Whether establishing malice aforethought.

Criminal Law - Murder - Intoxication as a defence to murder - Not established where the conduct of the accused is inconsistent with a person intoxicated.
Criminal law - Murder - Defence of provocation - Not available where the deceased did not utter or do the acts of provocation alleged.

Criminal Practice and Procedure - Sentencing - Sentence of conditional discharge and order to pay compensation - Whether convict may be remanded until compensation is paid. 
Criminal Practice and Procedure - Appeals - Failure of respondent to appear for hearing after being served - Whether hearing may proceed in the absence of respondent - Rule 72(6) of the Court of Appeal Rules 1979.
Criminal Law - Murder - Whether murder may be alleged without  evidence of killing.

Criminal law - Theft - Doctrine of recent possession.
Criminal Practice and Procedure - Failure to file a notice of appeal in accordance with Rule 61(1) of the Court of Appeal Rules 1979 -Whether appeal is competent.
Evidence - Defence of alibi - Whether conviction and sentence were valid in law.

Criminal Practice and Procedure - Sentencing - Sentence for manslaughter - Whether Court of Appeal may interfere with sentence imposed by the trial court.

Labour Law - Summary dismissal- Minister orders reinstatement of  dismissed employee - Whether employer may terminate services and pay statutory compensation instead - Security of Employment Act, Cap 574.