Tanzania Law Reports - 1996

Court of Appeal Rules - Record of Appeal not incorporating an extract of the order appealed against - Whether appeal is competent - Rule 89 of the Court of Appeal Rules, 1979.

Income tax - Withholding tax - Objection to - Jurisdiction of court -Remedies provided by sections 91 and 93 of Income Tax Act not appropriate for disputed application of s 34(2B)

Evidence — Presumptions — Entries in bankers’ books — Effect of s 77of Evidence Act 1967.
Banking - Negligence by banker - What constitutes - Failure to act on instructions of customer where court order hadfrozen account.
Banking - Effect of court order on deposit account.

Civil Practice and Procedure - Recognition and enforcement of foreign judgments - Jurisdiction of court where provisions of Foreign Judgments (Reciprocal Enforcement) Ordinance, Cap 8 of the Revised Laws inapplicable - Common law applicable — Under common law, enforcement must be sought by bringing an action on the debt.

Criminal law - Defilement - Elements of offence - Requirement of penetration
Criminal law - Attempted defilement - Sentence - Appellant having committed a beastly act in attempting to defile a two year old girl

Criminal Practice and Procedure - Consent of the Director of Public Prosecutions to commence criminal proceedings - Prosecution of appellant commenced without the consent of the Director of Public Prosecutions as the law requires - Consequences thereof- Section 34(4) of the Police Force Ordinance, Cap 332.

Employment law - Conciliation Board - Application for leave to apply for order of certiorari to quash decision of and for extension of time in order to do so and for stay of decision of Board - Delay not deliberate nor negligent - Prima facie case made out - In interests of industrial relations that order be made - Order granted

Landlord and tenant - Regional Housing Tribunal- Proceedings of -Participation of laymembers - Opinion to be sought before chairman prepares judgment - Section 11(4) of Rent Restriction Act 1984

Administrative law - Application for order of certiorari - To quash GN 370 of 1994 for being unreasonable - Nothing to indicate that Minister acted ultra vires in enacting GN 370 - Government Notice not unreasonable

Administrative law - Application for mandamus - To respect certificate of approval issued to applicants under the National Investment (Production and Protection) Act No 10 of 1990 by issuing fishing licence - No provision making the licence a necessary consequence of a certificate of approval issued by the IPC Administrative law - Licence -Issue of- Discretion must be exercised with a judicial mind - Authority having acted under a false belief that applicant's vessel exceeded 500 BHP - Decision quashed - Authority ordered to reconsider

Limitation - Right of action for recovery of land where owner deceased - Period of twelve years runsfrom death of deceased irrespective ofwhen letters ofadministration granted - Limitation may be raised at any stage of proceedings

Civil Practice and Procedure - Evidence - Statement and production of — Defendant a layman - Court’s duties under Order XVIII Rule 2 of the Civil Procedure Code 1966

Family law - Matrimonial property - Division of- Conversion of marriage - Capacity to marry - Leave to appeal granted to determine whether there had been a conversion and on the division in terms of s  1 of the Marriage Act.

Elections - Election petition - Pleadings - Not correct to infer a fact  which is not specifically pleaded in petition - Pleadings vague and imprecise
Elections - Election petition - Parts ofpetition found to be vague and imprecise - Orderfor amendment would not have resulted in delay if court prescribed specific period within which amendments were to be effected - In circumstances, orderfor amendment ought to have been granted
Civil Practice and Procedure - Pleadings - Amendments to - When amendments should be granted - Law restated

Administrative law - Power to act - National Sports Council appointing  a screening committee to screen applicants for Football Association of Tanzania executive committee - In absence of rules having been promulgated in terms of s 28 ofAct 6 of 1971, screening committees appointed as a matter of practice and had power so to act
Administrative law - Screening committee - Application of rules of natural justice - Bias on part of chairman - Chairman ought to have recused himself in view of previous disagreement

Election Petitions - Locus standi in election petitions — Petitioner seeking to nullify election results in constituencies other than his
own - Whether petitioner has locus standi - Local Government (Elections) Act, 1979, Act No. 4 of 1979
Civil Practice and Procedure - Submissions to Court by the parties -Meaning and purpose of submissions - Written submissions contained in only five sentences — Whether constituting submissions

Contract - Fraud - Effect - Judgment obtained on Itasis of fraud by one of the parties - Decision set aside on appeal

Magistrates' Courts - Jurisdiction - Jurisdiction of Resident Magistrate to hear and determine case filed in a district court - Magistrates’ Courts Act 1985 (Z)

Company law - Power of company to institute legal proceedings - Company declared a specified public corporation under Public Corporations (Amendment) Act 16 of 1993 - Such company has no locus standi to institute proceedings on its own

Debtor and Creditor - Mortgage of property as security for a loan - Intended sale of the property by mortgagee - Injunction sought restraining the intended sale - Whether grounds exist for such injunction.

Civil Practice and Procedure - Parties - Joinder - Application for prerogative orders of certiorari and mandamus against Minister for Labour arising from reinstatement by Conciliation Board of employees whose services had been terminated - Application by employees to be joined as co-respondents in application for prerogative orders unnecessary and dismissed

Contract - Implied terms of contract - Sale Agreement not stating time for payment to he made - Reasonable time is implied
Contract - Delay in performance of contract - Inordinate delay in making payment - Payee may rescind contract

Company law - Winding up - When just and equitable that company  be wound up - Directors not on speaking terms — Sections 163, 167, 172 and 173 of Cap 212

Civil Practice and Procedure - Appeals - Stay of execution pending  appeal- Court cannot entertain application where no appeal filed -Order XXXIX Rule 5

Elections - Election petition - Supporting affidavit - Facts asserted not in personal knowledge of deponent - Affidavit not conforming to provisions of Order XIX rule 3(1) of Civil Procedure Code
Elections - Election petition - Jurisdiction of High Court to enquire into election of President - Jurisdiction ousted by article 41(7) of Constitution

Civil Practice and Procedure — Revision — When court’s revisional jurisdiction may be invoked - Where appellate process has been blocked by judicial process — Decision of High Court dismissing application for extension of time not such a judicial process
Civil Practice and Procedure - Revision - When application must be brought - Application made 10 months afterjudgment time barred

Debtor and Creditor - Loan agreement - Debenture to secure such loan - Rectification sought of amount repayable stated thereon - When such rectification competent - Section 85 of the Companies Ordinance, Cap 212.
Law ofLimitations- Fraudulent misrepresentation - Effect on limitation of proceedings - Section 26(a) of the Law of Limitation Act.

Company Law - Winding up - Creditors’ claims against company in liquidation - Proof of debt on affidavit is required for cause of action - Companies (Winding Up) Rules, 1929.

Civil Practice and Procedure - Contempt of court- What constitutes.

Civil Practice and Procedure - Contempt of court - Proceedings for -Purpose of such proceedings.

Civil Practice and Procedure - Contempt of court - Application for committal for - When competent.

Civil Practice and Procedure - Service of summons - Defendant’s  refusal to acknowledge service - Procedure to befollowed by plaintifff or judgment - Order 9 rule 6( 1 )(a)(ii)(B) and Order 8 rule 14(2)(b) of the Civil Procedure Code, 1966.
Civl Practice and Procedure - Written judgment - Requisite content of such judgment - Order 20 rules 4 and 5 of the Civil Procedure Code, 1966.
Damages - Quantum of - Ex-parte proof by affidavit - Extent of court's duty to scrutinize the evidence on affidavit to arrive at acceptable quantum.

Civil Practice and Procedure - No case to answer - Standard of proof upon a submission of ‘No Case to Answer’ in a civil case — Standard
of proof in civil and criminal cases distinguished
Civil Practice and Procedure - No Case to Answer - Dismissal of suit on the basis of a submission of ‘No Case to Answer’ — Test to be applied by the Court in reaching decision

Civil Practice and Procedure - No case to answer - Standard of proof upon a submission of 'No Case to Answer' in a civil case - Standard of proof in civil and criminal cases distinguished

Civil Practice and Procedure - No Case to Answer - Dismissal of suit on the basis of a submission of 'No Case to Answer' - Test to be applied by the Court in reaching decision

Land Law - Land cultivated in common — Shamba - ownership of Civil Practice and Procedure - Appeal - Legislature’s various use of the words 'petition' and ‘memorandum’ - Whether significant difference when referring to grounds of appeal to a higher court - Section 25(3) of the Magistrates’ Courts Act, 1984, and the Civil and Criminal Procedure Codes of 1966 and 1985 respectively.

Administrative Law - Decision-making by public authorities - Whether there is a duty to give reasons for decisions reached - Section 26 of the Security of Employment Act 1964 Common Law - Application of common law in Tanzania - Power of the High Court to modify the common law applicable in Tanzania - Section 2(2) of the Judicature and Application of Laws Ordinance, Cap 453
Administrative Law - Exclusion of the jurisdiction of the courts by finality clauses- Statute providing that the Minister’s decision shall be final and conclusive - Effect thereof- Section 27(1) (a) of the Security of Employment Act 1964

Civil Practice and Procedure - Locus standi - Law. governing locus standi - Scope of locus standi in public and private interest litigation
Civil Practice and Procedure — Law applicable - Applied common law - Power of the High Court to modify common law to suit local conditions - Section 2(2) of the Judicature and Application of Laws Ordinance, Cap 453 Civil Practice and Procedure - Representative suits - Law and procedure in representative suits - Order 1 Rule 8 of the Civil Procedure Code, 1966
Administrative Law - Public Rights - Enforcement of public rights -Whether a private individual may assert public rights by civil action
Constitutional Law - Judicial control of the executive - Management of public funds by the executive - Whether the executive is subject to judicial superintendance in the management of public funds

Family Law - Adoption - One potential adoptive parent a foreign national residing in the Republic - Requirements for valid adoption in such circumstances - Section 3(2) of the Adoption Ordinance, Cap.335.
Customary Law - Marriage by customary Sukurna law - Whether such constituting valid marriage for the purposes of adoption - Section 43 of the Law of Marriage, 1971.

Civil Practice and Procedure - Representative spits - Application for  leave to file such a suit- Before which court such application should be brought.

Family Law - Divorce - Division of the matrimonial assets - Basis upon which division to be effected - Section 114(3) of the Law of Marriage Act No.5 of 1971.

Criminal Practice and Procedure - Charge of murder - How withdrawn - Sections 91(1) and 98fa) of the Criminal Procedure Act, 1985.

Constitutional law - Separation of Powers - Purpose andfunction of the doctrine ofseparation ofpowers.
Constitutional Law - Removal or suspension of the President from office - Whether the President may be removed or suspended from office by the High Court - Sections 42( 1) and 46A of the Constitution of Tanzania

Civil Practice and Procedure - Appeal- Extension of time to appeal- Application for.

Civil Practice and Procedure - Stay of execution - Jurisdiction of Resident Magistrate’s court to grant such a stay - Order 21 rule 24 of the Civil Procedure Code.
Civil Practice and Procedure - Revision - Application for - Section 79( 1) and Order 43 rule 2 of the Civil Procedure Code.

Administrative Law - Orders of certiorari and mandamus - Application for leave to apply for - Election Complaints Panel decision - Sections 17(2) and 18(2) of Part VII of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance (as amended by Act 55 of 1968) and Section 95 of the Civil Procedure Code.
Law of Limitation - Time-barring - Section 18(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance.

Civil Practice and Procedure - Consolidation of civil cases - Oral application for — Whether competent - Rule 2 of Order 43 of the
Civil Procedure Code.

Criminal Practice and Procedure - Bailpending appeal - Principles  applicable - Section 368(1) (a) (i) of the Criminal Procedure Act,1985.
Criminal Law - Malicious damage to property - What constitutes the offence.

Land Law - Land Register - Rectification of- Whether competent -
Whetherfinal order can he granted - Sections 99(1 )(b), (d) and
(f) of the Land Registration Ordinance, Cap.334, and Section 95
and Order 43 Rule 2 of the Civil Procedure Code, 1966.
Civil Practice and Procedure - Locus standi of holder of power of
H attorney - Whether a misjoinder - Order 3, Rule 2(a) of the Civil
Procedure Code, 1966.
Law ofLimitation - Time-barring — Legalproceedings to he instituted
within six months - Item 21 Part 'III of the First Schedule to the
Law ofLimitation Act, 1971 — Whether the period may he extended
* on reasonable or sufficient cause - Whether a court can do so suo
motu - Section 14( 1) of the Law of Limitation Act.

Land Law - Land Register - Rectification of- Whether competent -Whether final order can he granted - Sections 99(1 )(b), (d) and (f) of the Land Registration Ordinance, Cap.334, and Section 95 and Order 43 Rule 2 of the Civil Procedure Code, 1966.
Civil Practice and Procedure - Locus standi of holder of power of attorney - Whether a misjoinder - Order 3, Rule 2(a) of the Civil Procedure Code, 1966.
Law ofLimitation - Time-barring — Legal proceedings to he instituted within six months - Item 21 Part 'III of the First Schedule to the Law ofLimitation Act, 1971 — Whether the period may he extended on reasonable or sufficient cause - Whether a court can do so suo motu - Section 14( 1) of the Law of Limitation Act.

Landlord and Tenant - Housing Appeals Tribunal - Application for leave to appeal thereto — Whether out oftime - Rules 5 and 7 of the Housing Appeals Tribunal (Appeals) Rules, 1987.
 Landlord and Tenant - Housing Appeals Tribunal - Important point of law - Whether a basis for appeal - Rule 6 of the Housing Appeals Tribunal (Appeals) Rules, 1987.

Administrative Law - Orders certiorari and mandamus - Minister of Labour reversing, on appeal to him, a decision of the Conciliation Board - Whether Minister acted without jurisdiction - Sections 26 and 51 of the Security of Employment Act - Regulation 4 of the Security of Employment (Disciplinary Proceedings) Regulations,1965.

Company Law - Charge to secure a loan - Misstatement on charge document of amount secured - Rectification of

Contract - Contract of employment - Wrongful termination - Reinstatement ofemployee to previous position — Claim by employee for various allowances owing and incurred during the period of his suspension.